EXHIBIT 4.12
FIRST BANKS, INC.
XXXXXX SUBORDINATED DEBT SECURITY DUE 2036
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS OR ANY OTHER
APPLICABLE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED,
ENCUMBERED OR OTHERWISE DISPOSED OF IN THE ABSENCE OF SUCH REGISTRATION OR
UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS
ACCEPTANCE HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY ONLY
(A) TO THE COMPANY, (B) PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE
144A"), TO A PERSON THE HOLDER REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL
BUYER" AS DEFINED IN RULE 144A THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C) TO A "NON U.S. PERSON" IN
AN "OFFSHORE TRANSACTION" PURSUANT TO REGULATION S UNDER THE SECURITIES ACT, (D)
PURSUANT TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT TO AN "ACCREDITED INVESTOR" WITHIN THE MEANING OF SUBPARAGRAPH (a) (1), (2),
(3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT THAT IS ACQUIRING THE SECURITY
FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH AN "ACCREDITED INVESTOR," FOR
INVESTMENT PURPOSES AND NOT WITH A VIEW TO, OR FOR OFFER OR SALE IN CONNECTION
WITH, ANY DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, OR (E) PURSUANT TO
ANOTHER AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES
ACT, SUBJECT TO THE COMPANY'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSES (D) OR (E) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO IT IN ACCORDANCE WITH THE
INDENTURE, A COPY OF WHICH MAY BE OBTAINED FROM THE COMPANY. THE HOLDER OF THIS
SECURITY BY ITS ACCEPTANCE HEREOF AGREES THAT IT WILL COMPLY WITH THE FOREGOING
RESTRICTIONS.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF AGREES, REPRESENTS
AND WARRANTS THAT IT WILL NOT ENGAGE IN HEDGING TRANSACTIONS INVOLVING THIS
SECURITY UNLESS SUCH TRANSACTIONS ARE IN COMPLIANCE WITH THE SECURITIES ACT OR
ANY APPLICABLE EXEMPTION THEREFROM.
THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE HEREOF ALSO AGREES,
REPRESENTS AND WARRANTS THAT IT IS NOT AN EMPLOYEE BENEFIT, INDIVIDUAL
RETIREMENT ACCOUNT OR OTHER PLAN OR ARRANGEMENT SUBJECT TO TITLE I OF THE
EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974, AS AMENDED ("ERISA"), OR
SECTION 4975 OF THE INTERNAL REVENUE CODE OF 1986, AS AMENDED (THE "CODE"),
(EACH A "PLAN"), OR AN ENTITY WHOSE UNDERLYING ASSETS INCLUDE "PLAN ASSETS" BY
REASON OF ANY PLAN'S INVESTMENT IN THE ENTITY AND NO PERSON INVESTING "PLAN
ASSETS" OF ANY PLAN MAY ACQUIRE OR HOLD THIS SECURITY OR ANY INTEREST THEREIN,
UNLESS SUCH PURCHASER OR HOLDER IS ELIGIBLE FOR THE EXEMPTIVE RELIEF AVAILABLE
UNDER U.S. DEPARTMENT OF LABOR PROHIBITED TRANSACTION CLASS EXEMPTION 96-23,
95-60, 91-38, 90-1 OR 84-14 OR ANOTHER APPLICABLE EXEMPTION OR ITS PURCHASE AND
HOLDING OF THIS SECURITY IS NOT PROHIBITED BY SECTION 406 OF ERISA OR SECTION
4975 OF THE CODE WITH RESPECT TO SUCH PURCHASE OR HOLDING. ANY PURCHASER OR
HOLDER OF THIS SECURITY OR ANY INTEREST THEREIN WILL BE DEEMED TO HAVE
REPRESENTED BY ITS PURCHASE AND HOLDING THEREOF THAT EITHER (i) IT IS NOT AN
EMPLOYEE BENEFIT PLAN WITHIN THE MEANING OF SECTION 3(3) OF ERISA, OR A PLAN TO
WHICH SECTION 4975 OF THE CODE IS APPLICABLE, A TRUSTEE OR OTHER PERSON ACTING
ON BEHALF OF AN EMPLOYEE BENEFIT PLAN OR PLAN, OR ANY OTHER PERSON OR ENTITY
USING THE ASSETS OF ANY EMPLOYEE BENEFIT PLAN OR PLAN TO FINANCE SUCH PURCHASE,
OR (ii) SUCH PURCHASE WILL NOT RESULT IN A PROHIBITED TRANSACTION UNDER SECTION
406 OF ERISA OR SECTION 4975 OF THE CODE FOR WHICH THERE IS NO APPLICABLE
STATUTORY OR ADMINISTRATIVE EXEMPTION.
IN CONNECTION WITH ANY TRANSFER, THE HOLDER OF THIS SECURITY WILL DELIVER
TO THE TRUSTEE SUCH CERTIFICATES AND OTHER INFORMATION AS MAY BE REQUIRED BY THE
INDENTURE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.
THIS SECURITY WILL BE ISSUED AND MAY BE TRANSFERRED ONLY IN BLOCKS HAVING
A PRINCIPAL AMOUNT OF NOT LESS THAN $100,000 AND MULTIPLES OF $1,000 IN EXCESS
THEREOF. ANY ATTEMPTED TRANSFER OF THIS SECURITY IN A BLOCK HAVING A PRINCIPAL
AMOUNT OF LESS THAN $100,000 SHALL BE DEEMED TO BE VOID AND OF NO LEGAL EFFECT
WHATSOEVER. ANY SUCH PURPORTED TRANSFEREE SHALL BE DEEMED NOT TO BE THE HOLDER
OF THIS SECURITY FOR ANY PURPOSE, INCLUDING, BUT NOT LIMITED TO, THE RECEIPT OF
DISTRIBUTIONS ON THIS SECURITY, AND SUCH PURPORTED TRANSFEREE SHALL BE DEEMED TO
HAVE NO INTEREST WHATSOEVER IN THIS SECURITY.
THIS OBLIGATION IS NOT A DEPOSIT AND IS NOT INSURED BY THE UNITED STATES
OR ANY AGENCY OR FUND OF THE UNITED STATES, INCLUDING THE FEDERAL DEPOSIT
INSURANCE CORPORATION (THE "FDIC"). THIS OBLIGATION IS SUBORDINATED TO THE
CLAIMS OF DEPOSITORS AND THE CLAIMS OF GENERAL AND SECURED CREDITORS OF THE
COMPANY, IS INELIGIBLE AS COLLATERAL FOR A LOAN BY THE COMPANY OR ANY OF ITS
SUBSIDIARIES AND IS NOT SECURED.
Junior Subordinated Debt Security due 2036
of
First Banks, Inc.
First Banks, Inc., a bank holding company incorporated in Missouri (the
"Company"), for value received promises to pay to Xxxxx Fargo Bank, National
Association, not in its individual capacity but solely as Institutional Trustee
for First Bank Statutory Trust VI, a Delaware statutory trust (the "Holder"), or
registered assigns, the principal sum of Twenty Five Million Seven Hundred
Seventy Four Thousand Dollars on July 7, 2036 and to pay interest on said
principal sum from June 16, 2006, or from the most recent interest payment date
(each such date, an "Interest Payment Date") to which interest has been paid or
duly provided for, quarterly (subject to deferral as set forth herein) in
arrears on January 7, April 7, July 7 and October 7 of each year commencing
October 7, 2006, at a variable per annum rate equal to LIBOR (as defined in the
Indenture) plus 1.65% (the "Interest Rate") (provided, however, that the
Interest Rate for any Interest Payment Period may not exceed the highest rate
permitted by New York law, as the same may be modified by United States law of
general applicability) until the principal hereof shall have become due and
payable, and on any overdue principal and (without duplication and to the extent
that payment of such interest is enforceable under applicable law) on any
overdue installment of interest at an annual rate equal to the Interest Rate in
effect for each such Extension Period compounded quarterly. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year and the actual number of days elapsed in the relevant interest
period. Notwithstanding anything to the contrary contained herein, if any
Interest Payment Date, other than on the Maturity Date, any Redemption Date or
the Special Redemption Date, falls on a day that is not a Business Day, then any
interest payable will be paid on, and such Interest Payment Date will be moved
to, the next succeeding Business Day, and additional interest will accrue for
each day that such payment is delayed as a result thereof. If the Maturity Date,
any Redemption Date or the Special Redemption Date falls on a day that is not a
Business Day, then the principal, premium, if any, and/or interest payable on
such date will be paid on the next succeeding Business Day, and no additional
interest will accrue in respect of such payment made on such next succeeding
Business Day (except that, if such Business Day falls in the next calendar year,
such payment will be made on the immediately preceding Business Day). The
interest installment so payable, and punctually paid or duly provided for, on
any Interest Payment Date will, as provided in the Indenture, be paid to the
Person in whose name this Debt Security (or one or more Predecessor Securities,
as defined in said Indenture) is registered at the close of business on the
regular record date for such interest installment, except that interest and any
Deferred Interest payable on the Maturity Date shall be paid to the Person to
whom principal is paid. Any such interest installment not punctually paid or
duly provided for shall forthwith cease to be payable to the registered holders
on such regular record date and may be paid to the Person in whose name this
Debt Security (or one or more Predecessor Debt Securities) is registered at the
close of business on a special record date to be fixed by the Trustee for the
payment of such defaulted interest, notice whereof shall be given to the
registered holders of the Debt Securities not less than 10 days prior to such
special record date, all as more fully provided in the Indenture. The principal
of and interest on this Debt Security shall be payable at the office or agency
of the Trustee (or other Paying Agent appointed by the Company) maintained for
that purpose in any coin or currency of the United States of America that at the
time of payment is legal tender for payment of public and private debts;
provided, however, that payment of interest may be made at the option of the
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Company by check mailed to the registered holder at such address as shall appear
in the Debt Security Register or by wire transfer of immediately available funds
to an account appropriately designated by the holder hereof. Notwithstanding the
foregoing, so long as the holder of this Debt Security is the Institutional
Trustee, the payment of the principal of and premium, if any, and interest on
this Debt Security shall be made in immediately available funds when due at such
place and to such account as may be designated by the Institutional Trustee. All
payments in respect of this Debt Security shall be payable in any coin or
currency of the United States of America that at the time of payment is legal
tender for payment of public and private debts.
Upon submission of Notice (as defined in the Indenture) and so long as no
Event of Default pursuant to paragraphs (c), (e), (f) or (g) of Section 5.01 of
the Indenture has occurred and is continuing, the Company shall have the right,
from time to time and without causing an Event of Default, to defer payments of
interest on the Debt Securities by extending the interest distribution period on
the Debt Securities at any time and from time to time during the term of the
Debt Securities, for up to 20 consecutive quarterly periods (each such extended
interest distribution period, an "Extension Period"), during which Extension
Period no interest shall be due and payable (except any Additional Interest that
may be due and payable). During any Extension Period, interest will continue to
accrue on the Debt Securities, and interest on such accrued interest (such
accrued interest and interest thereon referred to herein as "Deferred Interest")
will accrue at an annual rate equal to the Interest Rate applicable during such
Extension Period, compounded quarterly from the date such Deferred Interest
would have been payable were it not for the Extension Period, to the extent
permitted by law. No Extension Period may end on a date other than an Interest
Payment Date. At the end of any such Extension Period the Company shall pay all
Deferred Interest then accrued and unpaid on the Debt Securities; provided,
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however, that no Extension Period may extend beyond the Maturity Date,
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Redemption Date (to the extent redeemed) or Special Redemption Date; and
provided, further, however, during any such Extension Period, the Company may
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not (i) declare or pay any dividends or distributions on, or redeem, purchase,
acquire, or make a liquidation payment with respect to, any of the Company's
capital stock or (ii) make any payment of principal of or premium, if any, or
interest on or repay, repurchase or redeem any debt securities of the Company
that rank pari passu in all respects with or junior in interest to the Debt
Securities or (iii) make any payment under any guarantees of the Company that
rank in all respects pari passu with or junior in respect to the Capital
Securities Guarantee (other than (a) repurchases, redemptions or other
acquisitions of shares of capital stock of the Company (A) in connection with
any employment contract, benefit plan or other similar arrangement with or for
the benefit of one or more employees, officers, directors or consultants, (B) in
connection with a dividend reinvestment or stockholder stock purchase plan or
(C) in connection with the issuance of capital stock of the Company (or
securities convertible into or exercisable for such capital stock), as
consideration in an acquisition transaction entered into prior to the applicable
Extension Period, (b) as a result of any exchange, reclassification, combination
or conversion of any class or series of the Company's capital stock (or any
capital stock of a subsidiary of the Company) for any class or series of the
Company's capital stock or of any class or series of the Company's indebtedness
for any class or series of the Company's capital stock, (c) the purchase of
fractional interests in shares of the Company's capital stock pursuant to the
conversion or exchange provisions of such capital stock or the security being
converted or exchanged, (d) any declaration of a dividend in connection with any
stockholder's rights plan, or the issuance of rights, stock or other property
under any stockholder's rights plan, or the redemption or repurchase of rights
pursuant thereto, or (e) any dividend in the form of stock, warrants, options or
other rights where the dividend stock or the stock issuable upon exercise of
such warrants, options or other rights is the same stock as that on which the
dividend is being paid or ranks pari passu with or junior to such stock). Prior
to the termination of any Extension Period, the Company may further extend such
period, provided, that such period together with all such previous and further
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consecutive extensions thereof shall not exceed 20 consecutive quarterly
periods, or extend beyond the Maturity Date, Redemption Date (to the extent
redeemed) or Special Redemption Date. Upon the termination of any Extension
Period and upon the payment of all Deferred Interest, the Company may commence a
new Extension Period, subject to the foregoing requirements. No interest or
Deferred Interest shall be due and payable during an Extension Period, except at
the end thereof, but Deferred Interest shall accrue upon each installment of
interest that would otherwise have been due and payable during such Extension
Period until such installment is paid. The Company must give the Trustee notice
of its election to begin or extend an Extension Period ("Notice") not later than
the related regular record date for the relevant Interest Payment Date. The
Notice shall describe, in reasonable detail, why the Company has elected to
begin an Extension Period. The Notice shall acknowledge and affirm the Company's
understanding that it is prohibited from issuing dividends and other
distributions during the Extension Period. Upon receipt of the Notice, an
Initial Purchaser shall have the right, at its sole discretion, to disclose the
name of the Company, the fact that the Company has elected to begin an Extension
Period and other information that such Initial Purchaser, at its sole
discretion, deems relevant to the Company's election to begin an Extension
Period. The Trustee shall give notice of the Company's election to begin a new
Extension Period to the Securityholders.
The indebtedness evidenced by this Debt Security is, to the extent
provided in the Indenture, subordinate and junior in right of payment to the
prior payment in full of all Senior Indebtedness, and this Debt Security is
issued subject to the provisions of the Indenture with respect thereto. Each
holder of this Debt Security, by accepting the same, (a) agrees to and shall be
bound by such provisions, (b) authorizes and directs the Trustee on such
holder's behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination so provided and (c) appoints the
Trustee such holder's attorney-in-fact for any and all such purposes. Each
holder hereof, by such holder's acceptance hereof, hereby waives all notice of
the acceptance of the subordination provisions contained herein and in the
Indenture by each holder of Senior Indebtedness, whether now outstanding or
hereafter incurred, and waives reliance by each such holder upon said
provisions.
The Company waives diligence, presentment, demand for payment, notice of
nonpayment, notice of protest, and all other demands and notices.
This Debt Security shall not be entitled to any benefit under the
Indenture hereinafter referred to and shall not be valid or become obligatory
for any purpose until the certificate of authentication hereon shall have been
signed by or on behalf of the Trustee.
The provisions of this Debt Security are continued on the reverse side
hereof and such continued provisions shall for all purposes have the same effect
as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has duly executed this certificate.
First Banks, Inc.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
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Title: President & Chief Executive Officer
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Dated: June 16, 2006
CERTIFICATE OF AUTHENTICATION
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This is one of the Debt Securities referred to in the within-mentioned
Indenture.
Xxxxx Fargo Bank, National Association,
not in its individual capacity but
solely as the Trustee
By: /s/ Xxxxx X. Xxxx
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Authorized Officer
Dated: June 16, 2006
REVERSE OF SECURITY
This Debt Security is one of a duly authorized series of Debt Securities
of the Company, all issued or to be issued pursuant to an Indenture (the
"Indenture"), dated as of June 16, 2006, duly executed and delivered between the
Company and Xxxxx Fargo Bank, National Association, as Trustee (the "Trustee"),
to which Indenture and all indentures supplemental thereto reference is hereby
made for a description of the rights, limitations of rights, obligations, duties
and immunities thereunder of the Trustee, the Company and the holders of the
Debt Securities (referred to herein as the "Debt Securities") of which this Debt
Security is a part. The summary of the terms of this Debt Security contained
herein does not purport to be complete and is qualified by reference to the
Indenture.
Upon the occurrence and continuation of a Tax Event, an Investment
Company Event or a Capital Treatment Event (each a "Special Event"), this Debt
Security may become due and payable, in whole or in part, at any time, within 90
days following the occurrence of such Tax Event, Investment Company Event or
Capital Treatment Event (the "Special Redemption Date"), as the case may be, at
the Special Redemption Price. In the event that the Special Redemption Date
falls on a day prior to the LIBOR Determination Date for any Interest Payment
Period, then the Company shall be required to pay to Securityholders, on the
Business Day following such LIBOR Determination Date, any additional amount of
interest that would have been payable on the Special Redemption Date had the
amount of interest determined on such LIBOR Determination Date been known on the
first day of such Interest Payment Period. The Company shall also have the right
to redeem this Debt Security at the option of the Company, in whole or in part,
on any January 7, April 7, July 7 or October 7 on or after July 7, 2011 (a
"Redemption Date"), at the Redemption Price.
Any redemption pursuant to either of the two preceding paragraphs will be
made, subject to the receipt by the Company of prior approval from any
regulatory authority with jurisdiction over the Company if such approval is then
required under applicable capital guidelines or policies of such regulatory
authority, upon not less than 30 days' nor more than 60 days' notice. If the
Debt Securities are only partially redeemed by the Company, the Debt Securities
will be redeemed pro rata or by lot or by any other method utilized by the
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Trustee.
"Redemption Price" means 100% of the principal amount of the Debt
Securities being redeemed plus accrued and unpaid interest on such Debt
Securities to the Redemption Date or, in the case of a redemption due to the
occurrence of a Special Event, to the Special Redemption Date if such Special
Redemption Date is on or after July 7, 2011.
"Special Redemption Price" means, with respect to the redemption of any
Debt Security following a Special Event, an amount in cash equal to 105% of the
principal amount of Debt Securities to be redeemed prior to July 7, 2007 and
thereafter equal to the percentage of the principal amount of the Debt
Securities that is specified below for the Special Redemption Date plus, in each
case, unpaid interest accrued thereon to the Special Redemption Date:
Special Redemption During the
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12-Month Period Beginning July 7 Percentage of Principal Amount
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2007 104%
2008 103%
2009 102%
2010 101%
2011 and thereafter 100%
In the event of redemption of this Debt Security in part only, a new Debt
Security or Debt Securities for the unredeemed portion hereof will be issued in
the name of the holder hereof upon the cancellation hereof.
Upon the occurrence of an Event of Default pursuant to paragraphs (c),
(e), (f) or (g), of Section 5.01 of the Indenture, the principal of all of the
Debt Securities may be declared, and in certain cases shall ipso facto become,
due and payable, and upon such acceleration shall become due and payable, in the
manner, with the effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debt Securities at the time outstanding affected
thereby, as specified in the Indenture, to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or eliminating
any of the provisions of the Indenture or of any supplemental indenture or of
modifying in any manner the rights of the holders of the Debt Securities;
provided, however, that no such supplemental indenture shall, among other
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things, without the consent of the holders of each Debt Security then
outstanding and affected thereby (i) change the Maturity Date of any Debt
Security, or reduce the principal amount thereof or any premium thereon, or
reduce the rate or manner of calculation of the rate or extend the time of
payment of interest thereon, or reduce (other than as a result of the maturity
or earlier redemption of any such Debt Security in accordance with the terms of
the Indenture and such Debt Security) or increase the aggregate principal amount
of Debt Securities then outstanding, or change any of the redemption provisions,
or make the principal thereof or any interest or premium thereon payable in any
coin or currency other than that of the United States that at the time of
payment is legal tender for payment of public and private debts, or impair or
affect the right of any holder of Debt Securities to institute suit for the
payment thereof, or (ii) reduce the aforesaid percentage of Debt Securities, the
holders of which are required to consent to any such supplemental indenture. The
Indenture also contains provisions permitting the holders of a majority in
aggregate principal amount of the Debt Securities at the time outstanding, on
behalf of all of the holders of the Debt Securities, to waive any past default
in the performance of any of the covenants contained in the Indenture, or
established pursuant to the Indenture, and its consequences, except (a) a
default in payments due in respect of any of the Debt Securities, (b) in respect
of covenants or provisions of the Indenture which cannot be modified or amended
without the consent of the holder of each Debt Security affected, or (c) in
respect of the covenants of the Company relating to its ownership of Common
Securities of the Trust. Any such consent or waiver by the registered holder of
this Debt Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such holder and upon all future holders and owners
of this Debt Security and of any Debt Security issued in exchange herefor or in
place hereof (whether by registration of transfer or otherwise), irrespective of
whether or not any notation of such consent or waiver is made upon this Debt
Security.
No reference herein to the Indenture and no provision of this Debt
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay all payments due on this
Debt Security at the time and place and at the rate and in the money herein
prescribed.
As provided in the Indenture and subject to certain limitations herein
and therein set forth, this Debt Security is transferable by the registered
holder hereof on the Debt Security Register of the Company, upon surrender of
this Debt Security for registration of transfer at the office or agency of the
Trustee in Wilmington, Delaware accompanied by a written instrument or
instruments of transfer in form satisfactory to the Company or the Trustee duly
executed by the registered holder hereof or such holder's attorney duly
authorized in writing, and thereupon one or more new Debt Securities of
authorized denominations and for the same aggregate principal amount will be
issued to the designated transferee or transferees. No service charge will be
made for any such registration of transfer, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
relation thereto.
Prior to due presentment for registration of transfer of this Debt
Security, the Company, the Trustee, any Authenticating Agent, any Paying Agent,
any transfer agent and the Debt Security Registrar may deem and treat the
registered holder hereof as the absolute owner hereof (whether or not this Debt
Security shall be overdue and notwithstanding any notice of ownership or writing
hereon) for the purpose of receiving payment of the principal of and premium, if
any, and interest on this Debt Security and for all other purposes, and neither
the Company nor the Trustee nor any Authenticating Agent nor any Paying Agent
nor any transfer agent nor any Debt Security Registrar shall be affected by any
notice to the contrary.
No recourse shall be had for the payment of the principal of or the
interest on this Debt Security, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debt Securities are issuable only in registered certificated form
without coupons. As provided in the Indenture and subject to certain limitations
herein and therein set forth, Debt Securities are exchangeable for a like
aggregate principal amount of Debt Securities of a different authorized
denomination, as requested by the holder surrendering the same.
All terms used in this Debt Security that are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE DEBT
SECURITIES, WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF (OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW).
