EXHIBIT 4-6
COMMONWEALTH EDISON COMPANY
TO
WILMINGTON TRUST COMPANY
_______ SUPPLEMENTAL INDENTURE
DATED AS OF _________, 200_
$____________
______% JUNIOR SUBORDINATED NOTES
DUE ________ __, 20__
TABLE OF CONTENTS(1)
ARTICLE 1 Junior Subordinated Notes...................................................................2
SECTION 1.01 Establishment..........................................................................2
SECTION 1.02 Definitions............................................................................2
SECTION 1.03 Payment of Principal and Interest......................................................4
SECTION 1.04 Deferral of Interest Payments..........................................................5
SECTION 1.05 Denominations..........................................................................6
SECTION 1.06 Global Securities......................................................................6
SECTION 1.07 Transfer...............................................................................6
SECTION 1.08 Redemption.............................................................................7
SECTION 1.09 Special Event Redemption...............................................................7
SECTION 1.10 Right to Advance Stated Maturity.......................................................8
ARTICLE 2 Expenses....................................................................................8
SECTION 2.01 Payment of Expenses....................................................................8
ARTICLE 3 Subordination...............................................................................8
SECTION 3.01 Agreement to Subordinate...............................................................8
SECTION 3.02 Default on Senior Indebtedness.........................................................9
SECTION 3.03 Liquidation; Dissolution; Bankruptcy...................................................9
SECTION 3.04 Subrogation...........................................................................10
SECTION 3.05 Trustee to Effectuate Subordination...................................................11
SECTION 3.06 Notice by the Company.................................................................11
SECTION 3.07 Rights of the Trustee; Holders of Senior Indebtedness.................................12
SECTION 3.08 Subordination May Not Be Impaired.....................................................12
ARTICLE 4 Miscellaneous Provisions...................................................................13
SECTION 4.01 Recitals by Company...................................................................13
SECTION 4.02 Ratification and Incorporation of Indenture...........................................13
SECTION 4.03 Executed in Counterparts..............................................................13
SECTION 4.04 Listing of Notes......................................................................13
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(1) This Table of Contents does not constitute part of the Indenture or
have any bearing upon the interpretation of any of its terms and
provisions.
THIS ________
SUPPLEMENTAL INDENTURE ("______
Supplemental
Indenture") is made as of the ____ day of ________, 200_, by and between
COMMONWEALTH EDISON, an Illinois corporation (the "Company"), and WILMINGTON
TRUST COMPANY, not in its individual capacity but solely as trustee (the
"Trustee") under the Indenture dated as of September 1, 1995 between the Company
and the Trustee (the "Indenture").
WITNESSETH:
WHEREAS, the Company executed and delivered the Indenture to
the Trustee to provide for the future issuance of the Company's unsecured
subordinated debt securities, to be issued from time to time in one or more
series as might be determined by the Company under the Indenture, in an
unlimited aggregate principal amount which may be authenticated and delivered as
provided in the Indenture; and
WHEREAS, pursuant to the terms of the Indenture, the Company
desires to provide for the establishment of a new series of its Debt Securities
to be known as its ___% Junior Subordinated Notes due _______ __, 20__ (the
"Notes"), the form and substance of such Notes and the terms, provisions and
conditions thereof to be set forth as provided in the Indenture and this ______
Supplemental Indenture; and
WHEREAS, ComEd Financing III, a Delaware statutory trust (the
"Trust"), has offered to the public $________ million aggregate stated
liquidation amount of its trust preferred securities (the "Preferred
Securities") and has offered to the Company $_____ million aggregate stated
liquidation amount of its trust common securities (the "Common Securities"),
such Preferred Securities and Common Securities representing undivided
beneficial interests in the assets of the Trust, and proposes to invest the
proceeds from such offerings in $___________ aggregate principal amount of the
Notes; and
WHEREAS, the Company has requested the Trustee to execute and
deliver this ______
Supplemental Indenture, and all requirements necessary to
make this ______
Supplemental Indenture a valid instrument, in accordance with
its terms, and to make the Notes, when executed by the Company and authenticated
and delivered by the Trustee, the valid obligations of the Company, have been
performed, and the execution and delivery of this ______
Supplemental Indenture
has been duly authorized in all respects;
NOW, THEREFORE, in consideration of the purchase and
acceptance of the Notes by the holders thereof, and for the purpose of setting
forth, as provided in the Indenture, the form and substance of the Notes and the
terms, provisions and conditions thereof, the Company covenants and agrees with
the Trustee as follows:
ARTICLE 1
JUNIOR SUBORDINATED NOTES
SECTION 1.01 ESTABLISHMENT. There is hereby established the
Notes, a new series of unsecured subordinated debt securities to be issued under
the Indenture, to be designated as the Company's _____% Junior Subordinated
Notes due _________, 20__.
There are to be authenticated and delivered $__________
principal amount of Notes, and no further Notes shall be authenticated and
delivered except as provided by the Indenture. The Notes shall be issued in
definitive fully registered form.
The Notes shall be in substantially the form set out in
Exhibit A hereto. The entire principal amount of the Notes shall initially be
evidenced by one certificate issued to the Property Trustee of ComEd Financing
III.
The form of the Trustee's Certificate of Authentication for
the Notes shall be in substantially the form set forth in Exhibit B hereto. A
notation of the Notes Guarantee shall be set forth on each Note in substantially
the form set forth in the Indenture.
Each Note shall be dated the date of authentication thereof
and shall bear interest from the date of original issuance thereof or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for.
SECTION 1.02 DEFINITIONS. The following defined terms used
herein shall, unless the context otherwise requires, have the meanings specified
below. Capitalized terms used herein for which no definition is provided herein
shall have the meanings set forth in the Indenture.
"Additional Interest" means (i) such additional amounts as may
be required so that the net amounts received and retained by the Holder (if the
Holder is a Securities Trust) after paying taxes, duties, assessments or
governmental charges of whatever nature (other than withholding taxes) imposed
by the United States or any other taxing authority will not be less than the
amounts the Holder would have received had no such taxes, duties, assessments,
or other governmental charges been imposed; and (ii) any interest due and not
paid on an Interest Payment Date, together with interest thereon from such
Interest Payment Date to the date of payment, compounded quarterly, on each
Interest Payment Date.
"Deferred Interest" means each installment of interest not
paid during any Extension Period, and interest thereon. Deferred installments of
interest shall bear interest at the rate of _____% per annum from the applicable
Interest Payment Date to the date of payment, compounded quarterly, to the
extent permitted by applicable law.
"Extension Period" means any period during which the Company
has elected to defer payments of interest, which deferral may be for a period of
up to twenty (20) consecutive quarters.
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"Interest Payment Dates" means _________, _________, _________
and _________ of each year.
"Investment Company Act Event" means that the Company shall
have received an Opinion of Counsel to the effect that, as a result of the
occurrence of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority, there is more than an
insubstantial risk that the Securities Trust is or will be considered an
"investment company" that is required to be registered under the Investment
Company Act of 1940, as amended, which change becomes effective on or after the
Original Issue Date.
"Original Issue Date" means ___________, 200_.
"Redemption Date" means, with respect to any Note to be
redeemed, the date fixed for such redemption by or pursuant hereto.
"Regular Record Date" means, with respect to each Interest
Payment Date, the close of business on the 15th calendar day preceding such
Interest Payment Date.
"Securities Trust" means ComEd Financing III, a statutory
trust formed by the Company under Delaware law to issue Preferred Securities and
Common Securities, the proceeds of which will be used to purchase Notes.
"Special Event" means an Investment Company Act Event or Tax
Event.
"Stated Maturity" means ___________, 20__.
"Senior Indebtedness" means (i) any payment in respect of (A)
indebtedness of the Company for money borrowed and (B) indebtedness evidenced by
securities, debentures, bonds, notes or other similar instruments issued by the
Company including, without limitation, indebtedness evidenced by securities
issued pursuant to the provisions of the Mortgage dated July 1, 1923, as
supplemented by
Supplemental Indenture dated August 1, 1944 and subsequent
supplemental indentures, between the Company, as mortgagor, and BNY Midwest
Trust Company and X.X. Xxxxxxx, as trustees; the Indenture dated as of September
1, 1987, as supplemented and amended, between the Company and Citibank, N.A., as
trustee; the Indentures dated April 1, 1949, October 1, 1949, October 1, 1950,
October 1, 1954, January 1, 1958, January 1, 1959 and December 1, 1961, between
the Company and Amalgamated Bank, as successor trustee to The First National
Bank of Chicago; and the Indenture dated February 15, 1973, as supplemented,
between the Company and Amalgamated Bank, as successor trustee to The First
National Bank of Chicago; (ii) all capital lease obligations of the Company;
(iii) all obligations of the Company issued or assumed as the deferred purchase
price of property, all conditional sale obligations of the Company and all
obligations of such obligor under any title retention agreement (but excluding
trade accounts payable arising in the ordinary course of business); (iv) all
obligations of the Company for reimbursement on any letter of credit, banker's
acceptance, security purchase facility or similar credit transaction; (v) all
obligations of the type referred to in clauses (i) through (iv) of other persons
for the payment of which the Company is responsible or liable as obligor,
guarantor or
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otherwise; and (vi) all obligations of the type referred to in clauses (i)
through (v) of other persons secured by any lien on any property or asset of the
Company (whether or not such obligation is assumed by such obligor), except for
(1) any such indebtedness that is by its terms subordinated to or pari passu
with the Notes, as the case may be, including all other debt securities and
guarantees in respect of those debt securities, issued to any other trusts,
partnerships or any other entity affiliated with the Company which is a
financing vehicle of the Company ("Financing Entity") in connection with an
issuance of preferred securities by such Financing Entity or other securities
which rank pari passu with, or junior to, the Preferred Securities, and (2) any
indebtedness between or among the Company and its Affiliates.
"Tax Event" means that the Company shall have received an
Opinion of Counsel experienced in such matters to the effect that, as a result
of (a) any amendment to, or change (including any announced prospective change)
in, laws (or any regulations thereunder) of the United States or any political
subdivision or taxing authority thereof or therein or (b) any amendment to, or
change in, an interpretation or application of such laws or regulations, there
is more than an insubstantial risk that (i) the Securities Trust would be
subject to United States federal income tax with respect to income accrued or
received on the Notes, (ii) interest payable to the Securities Trust on the
Notes would not be deductible by a member of the Guarantor's consolidated tax
group for United States federal income tax purposes, or (iii) the Securities
Trust would be subject to more than a de minimis amount of other taxes, duties
or other governmental charges, which change or amendment becomes effective on or
after the Original Issue Date.
SECTION 1.03 PAYMENT OF PRINCIPAL AND INTEREST. The unpaid
principal amount of the Notes shall bear interest at the rate of ___% per annum
until paid or duly provided for. Interest shall be paid quarterly in arrears on
each Interest Payment Date to the Person in whose name the Notes are registered
on the Regular Record Date for such Interest Payment Date, provided that
interest payable at the Stated Maturity of principal or on a Redemption Date as
provided herein will be paid to the Person to whom principal is payable. So long
as an Extension Period is not occurring, any such interest that is not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holders on such Regular Record Date and may either be paid to the Person or
Persons in whose name the Notes are registered at the close of business on a
Special Record Date for the payment of such defaulted interest to be fixed by
the Trustee ("Special Record Date"), notice whereof shall be given to Holders of
the Notes not less than ten (10) days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange, if any, on which the Notes shall be
listed, and upon such notice as may be required by any such exchange, all as
more fully provided in the Indenture.
Payments of interest on the Notes will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for the Notes shall be computed and paid on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is payable
on the Notes is not a Business Day, then a payment of the interest payable on
such date will be made on the next succeeding day that is a Business Day (and
without any interest or other payment in respect of any such delay), except
that, if such Business Day is in the next succeeding calendar year, such payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date the payment was originally payable.
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Payment of the principal, premium, if any, and interest
(including Additional Interest, if any) due at the Stated Maturity or earlier
redemption of the Notes shall be made upon surrender of the Notes at the
Corporate Trust Office of the Trustee, in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts. Payments of interest (including interest on any
Interest Payment Date) will be made, subject to such surrender where applicable,
at the option of the Company, (i) by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register or (ii)
by wire transfer at such place and to such account at a banking institution in
the United States as may be designated in writing to the Trustee at least
sixteen (16) days prior to the date for payment by the Person entitled thereto.
The Company shall pay, as additional interest on the Notes,
when due to the United States or any other taxing authority, the amounts set
forth in clause (i) of the definition of Additional Interest.
SECTION 1.04 DEFERRAL OF INTEREST PAYMENTS. The Company has
the right at any time and from time to time to extend the interest payment
period of the Notes for up to twenty (20) consecutive quarters (each, an
"Extension Period"), but not beyond the Stated Maturity. Notwithstanding the
foregoing, the Company has no right to extend its obligation to pay such amounts
as are defined in clause (i) of the definition of Additional Interest. Prior to
the termination of any such Extension Period, the Company may further extend the
interest payment period, provided that such Extension Period, together with all
such previous and further extensions of that Extension Period, shall not exceed
twenty (20) consecutive quarters. Upon the termination of any such Extension
Period and upon the payment of all accrued and unpaid interest and any
Additional Interest then due, the Company may select a new Extension Period,
subject to the above limitations and requirements.
Upon the termination of any Extension Period, which
termination shall be on an Interest Payment Date, the Company shall pay all
Deferred Interest on the next succeeding Interest Payment Date to the Person in
whose name the Notes are registered on the Regular Record Date for such Interest
Payment Date, provided that Deferred Interest payable at Stated Maturity or on
any Redemption Date will be paid to the Person to whom principal is payable.
The Company shall give the Holder or Holders of the Notes and
the Trustee notice, as provided in the Indenture, of its selection or extension
of an Extension Period at least ____ Business Day[s] prior to the earlier of (i)
the Regular Record Date relating to the Interest Payment Date on which the
Extension Period is to commence or relating to the Interest Payment Date on
which an Extension Period that is being extended would otherwise terminate, or
(ii) the date the Company or Securities Trust is required to give notice to the
New York Stock Exchange or other applicable self-regulatory organization of the
record date or the date such distributions are payable. The Company shall cause
the Securities Trust to give notice of the Company's selection of such Extension
Period to Holders of the Trust Securities. The month in which any notice is
given pursuant to the immediately preceding sentence of this Section shall
constitute the first month of the first quarter of the twenty (20) quarters,
which comprise the Maximum Extension Period.
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At any time any of the foregoing notices are given to the
Trustee, the Company shall give to the Paying Agent for the Notes such
information as said Paying Agent shall reasonably require in order to fulfill
its tax reporting obligations with respect to such Notes.
The quarter in which any notice is given pursuant to this
Section 1.04 shall be counted as one of the twenty quarters permitted in the
maximum Extended Interest Payment Period permitted under this Section 1.04.
SECTION 1.05 DENOMINATIONS. The Notes may be issued in the
denominations of $25, or any integral multiple thereof.
SECTION 1.06 GLOBAL SECURITIES. If the Notes are distributed
to Holders of the Trust Securities of the Securities Trust in liquidation of
such Holders' interests therein, the Notes will be issued in the form of one or
more Global Securities registered in the name of the Depositary (which shall be
The Depository Trust Company) or its nominee. Except under the limited
circumstances described below, Notes represented by the Global Security will not
be exchangeable for, and will not otherwise be issuable as, Notes in definitive
form. The Global Securities described above may not be transferred except by the
Depositary to a nominee of the Depositary or by a nominee of the Depositary to
the Depositary or another nominee of the Depositary or to a successor Depositary
or its nominee.
Owners of beneficial interests in such a Global Security will
not be considered the Holders thereof for any purpose under the Indenture or the
________
Supplemental Indenture, and no Global Security representing a Note
shall be exchangeable, except for another Global Security of like denomination
and tenor to be registered in the name of the Depositary or its nominee or to a
successor Depositary or its nominee. The rights of Holders of such Global
Security shall be exercised only through the Depositary.
A Global Security shall be exchangeable for Notes registered
in the names of persons other than the Depositary or its nominee only if (i) the
Depositary notifies the Company that it is unwilling or unable to continue as a
Depositary for such Global Security and no successor Depositary shall have been
appointed, or if at any time the Depositary ceases to be a clearing agency
registered under the Securities Exchange Act of 1934, as amended, at a time when
the Depositary is required to be so registered to act as such Depositary and no
successor Depositary shall have been appointed, (ii) the Company in its sole
discretion determines that such Global Security shall be so exchangeable, or
(iii) there shall have occurred an Event of Default with respect to the Notes.
Any Global Security that is exchangeable pursuant to the preceding sentence
shall be exchangeable for Notes registered in such names as the Depositary shall
direct.
SECTION 1.07 TRANSFER. No service charge will be made for any
transfer or exchange of Notes, but payment will be required of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
therewith.
The Company shall not be required (a) to issue, transfer or
exchange any Notes during a period beginning at the opening of business fifteen
(15) days before the day of the mailing of a notice identifying the serial
numbers of the Notes to be called for redemption, and ending at the
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close of business on the day of the mailing, or (b) to transfer or exchange any
Notes theretofore selected for redemption in whole or in part, except the
unredeemed portion of any Note redeemed in part.
SECTION 1.08 REDEMPTION. The Notes shall be subject to
redemption at the option of the Company, in whole or in part, without premium or
penalty, at any time or from time to time on or after ____________ , 2002, at a
Redemption Price equal to 100% of the principal amount to be redeemed plus
accrued but unpaid interest, including Additional Interest, if any, to the
Redemption Date; provided, however, that if a redemption in part shall result in
the delisting of the Preferred Securities issued by the Securities Trust, the
Company may only redeem the Notes in whole. In addition, upon the occurrence of
a Special Event at any time, the Company may, within ninety (90) days following
the occurrence thereof and subject to the terms and conditions of the Indenture,
elect to redeem the Notes, in whole, at a price equal to 100% of the principal
amount to be redeemed plus any accrued but unpaid interest (including Additional
Interest) to the Redemption Date
In the event of redemption of the Notes in part only, a new
Note or Notes for the unredeemed portion will be issued in the name or names of
the Holders thereof upon the surrender thereof.
The Notes will not have a sinking fund.
Notice of redemption shall be given as provided in the
Indenture.
Any redemption of less than all of the Notes shall, with
respect to the principal thereof, be divisible by $25.
SECTION 1.09 SPECIAL EVENT REDEMPTION. If a Special Event has
occurred and is continuing and then, notwithstanding Section 3.2(a) but subject
to Section 3.2(b), the Company shall have the right upon not less than 30 days'
nor more than 60 days' notice to the registered holders of the Notes to redeem
the Notes, in whole or in part, for cash within 90 days following the occurrence
of such Tax Event (the "90 Day Period") at a redemption price equal to 100% of
the principal amount to be redeemed plus any accrued and unpaid interest thereon
to the date of such redemption (the "Special Redemption Price"), provided that,
if at the time there is available to the Company the opportunity to eliminate,
within the 90 Day Period, the Tax Event by taking some ministerial action
("Ministerial Action"), such as filing a form or making an election, or pursuing
some other similar reasonable measure that has no adverse effect on the Company,
the Trust or the Holders of the Trust Securities issued by the Trust, the
Company shall pursue such Ministerial Action in lieu of redemption; and provided
further, that the Company shall have no right to redeem the Notes while the
Trust is pursuing any Ministerial Action pursuant to its obligations under the
Declaration. The Special Redemption Price shall be paid prior to 12:00 noon, New
York time, on the date of such redemption or at such earlier time as the Company
determines and specifies in the notice of redemption, provided the Company shall
deposit with the Trustee an amount sufficient to pay the Special Redemption
Price by 11:00 a.m. on the date such Special Redemption Price is to be paid.
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SECTION 1.10 RIGHT TO ADVANCE STATED MATURITY. If a Tax Event
occurs, the Company will have the right (a) prior to the dissolution of the
Securities Trust, to advance the Stated Maturity of the Notes to the minimum
extent required, but not less than 19 and one-half years from the Original Issue
Date, or (b) to direct the Property Trustee to dissolve the Securities Trust (if
not previously dissolved) and advance the Stated Maturity of the Notes to the
minimum extent required, but not less than 19 and one-half years from the
Original Issue Date, in each case such that in the Opinion of Counsel to the
Company experienced in such matters, after advancing the Stated Maturity,
interest paid on the Notes will be deductible for federal income tax purposes.]
ARTICLE 2
EXPENSES
SECTION 2.01 PAYMENT OF EXPENSES. In connection with the
offering, sale and issuance of the Notes to the Property Trustee in connection
with the sale of the Trust Securities by the Trust, the Company shall:
(a) pay all costs and expenses relating to the offering, sale
and issuance of the Notes, including commissions to the underwriters
payable pursuant to the Underwriting Agreement and the Pricing
Agreement and compensation of the Trustee under the Indenture in
accordance with the provisions of the Indenture;
(b) pay all costs and expenses of the Trust (including, but
not limited to, costs and expenses relating to the organization of the
Trust, the offering, sale and issuance of the Trust Securities
(including commissions to the underwriters in connection therewith),
the fees and expenses of the Property Trustee and the Delaware Trustee,
the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants,
attorneys, statistical or bookkeeping services, expenses for printing
and engraving and computing or accounting equipment, paying agent(s),
registrar(s), transfer agent(s), duplicating, travel and telephone and
other telecommunications expenses and costs and expenses incurred in
connection with the acquisition, financing, and disposition of Trust
assets); and
(c) pay any and all taxes (other than United States
withholding taxes attributable to the Trust or its assets) and all
liabilities, costs and expenses with respect to such taxes of the
Trust.
ARTICLE 3
SUBORDINATION
SECTION 3.01 AGREEMENT TO SUBORDINATE. The Company covenants
and agrees, and each holder of Notes issued hereunder by such holder's
acceptance thereof likewise covenants and agrees, that all Notes shall be issued
subject to the provisions of this Article 3; and each holder of a Note, whether
upon original issue or upon transfer or assignment thereof, accepts and agrees
to be bound by such provisions.
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The payment by the Company of the principal of, premium, if
any, and interest on all Notes issued hereunder shall, to the extent and in the
manner hereinafter set forth, be subordinated and subject in right of payment to
the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this ______ Supplemental Indenture or thereafter
incurred.
No provision of this Article 3 shall prevent the occurrence of
any default or Event of Default hereunder.
SECTION 3.02 DEFAULT ON SENIOR INDEBTEDNESS. In the event and
during the continuation of any default by the Company in the payment of
principal, premium, interest or any other payment due on any Senior Indebtedness
of the Company, or in the event that the maturity of any Senior Indebtedness of
the Company has been accelerated because of a default, then, in either case, no
payment shall be made by the Company with respect to the principal (including
redemption and sinking fund payments) of, or premium, if any, or interest on the
Notes.
In the event that, notwithstanding the foregoing, any payment
shall be received by the Trustee or any holder when such payment is prohibited
by the preceding paragraph of this Section 3.02, such payment shall be held in
trust for the benefit of, and shall be paid over or delivered to, the holders of
Senior Indebtedness or their respective representatives, or to the trustee or
trustees under any indenture pursuant to which any of such Senior Indebtedness
may have been issued, as their respective interests may appear, but only to the
extent that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee within 90 days of such payment
of the amounts then due and owing on the Senior Indebtedness and only the
amounts specified in such notice to the Trustee shall be paid to the holders of
Senior Indebtedness.
SECTION 3.03 LIQUIDATION; DISSOLUTION; BANKRUPTCY. Upon any
payment by the Company, or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, to creditors upon any
dissolution or winding-up or liquidation or reorganization of the Company,
whether voluntary or involuntary or in bankruptcy, insolvency, receivership or
other proceedings, all amounts due upon all Senior Indebtedness of the Company
shall first be paid in full, or payment thereof provided for in money in
accordance with its terms, before any payment is made by the Company on account
of the principal (and premium, if any) or interest on the Notes; and upon any
such dissolution or winding-up or liquidation or reorganization, any payment by
the Company, or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, to which the holders of the Notes or
the Trustee would be entitled to receive from the Company, except for the
provisions of this Article 3, shall be paid by the Company or by any receiver,
trustee in bankruptcy, liquidating trustee, agent or other Person making such
payment or distribution, or by the holders of the Notes or by the Trustee under
this Indenture if received by them or it, directly to the holders of Senior
Indebtedness of the Company (pro rata to such holders on the basis of the
respective amounts of Senior Indebtedness held by such holders, as calculated by
the Company) or their representative or representatives, or to the trustee or
trustees under any indenture pursuant to which any instruments evidencing such
Senior Indebtedness may have been issued, as their respective interests may
appear, to the extent necessary to pay such Senior Indebtedness in full, in
money or money's worth, after giving effect to any
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concurrent payment or distribution to or for the holders of such Senior
Indebtedness, before any payment or distribution is made to the holders of Notes
or to the Trustee.
In the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether in
cash, property or securities, prohibited by the foregoing, shall be received by
the Trustee or the holders of the Notes before all Senior Indebtedness of the
Company is paid in full, or provision is made for such payment in money in
accordance with its terms, such payment or distribution shall be held in trust
for the benefit of and shall be paid over or delivered to the holders of such
Senior Indebtedness or their representative or representatives, or to the
trustee or trustees under any indenture pursuant to which any instruments
evidencing such Senior Indebtedness may have been issued, as their respective
interests may appear, as calculated by the Company, for application to the
payment of all Senior Indebtedness of the Company remaining unpaid to the extent
necessary to pay such Senior Indebtedness in full in money in accordance with
its terms, after giving effect to any concurrent payment or distribution to or
for the benefit of the holders of such Senior Indebtedness.
For purposes of this Article 3, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 3 with respect
to the Notes to the payment of all Senior Indebtedness of the Company that may
at the time be outstanding, provided that (i) such Senior Indebtedness is
assumed by the new corporation, if any, resulting from any such reorganization
or readjustment, and (ii) the rights of the holders of such Senior Indebtedness
are not, without the consent of such holders, altered by such reorganization or
readjustment. The consolidation of the Company with, or the merger of the
Company into, another corporation or the liquidation or dissolution of the
Company following the conveyance or transfer of its property as an entirety, or
substantially as an entirety, to another corporation upon the terms and
conditions provided for in the Indenture shall not be deemed a dissolution,
winding-up, liquidation or reorganization for the purposes of this Section 3.03
if such other corporation shall, as a part of such consolidation, merger,
conveyance or transfer, comply with the conditions stated in the Indenture.
Nothing in Section 3.02 or in this Section 3.03 shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 7.06 of the Indenture.
SECTION 3.04 SUBROGATION. Subject to the payment in full of
all Senior Indebtedness of the Company, the rights of the holders of the Notes
shall be subrogated to the rights of the holders of such Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Company
applicable to such Senior Indebtedness until the principal of (and premium, if
any) and interest on the Notes shall be paid in full; and, for the purposes of
such subrogation, no payments or distributions to the holders for such Senior
Indebtedness of any cash, property or securities to which the holders of the
Notes or the Trustee would be entitled except for the provisions of this Article
3, and no payment over pursuant to the provisions of this Article 3, to or for
the benefit of the holders of such Senior Indebtedness by holders of the Notes
or the Trustee, shall, as between the Company, its creditors other than holders
of Senior Indebtedness of the Company, and the holders of the Notes be deemed to
be a payment by the Company to or on account of such Senior Indebtedness. It is
understood that the provisions of this Article 3 are and
10
are intended solely for the purposes of defining the relative rights of the
holders of the Notes, on the one hand, and the holders of such Senior
Indebtedness on the other hand.
Nothing contained in this Article 3 or elsewhere in this
Indenture or in the Notes is intended to or shall impair, as between the
Company, its creditors other than the holders of Senior Indebtedness of the
Company, and the holders of the Notes, the obligation of the Company which is
absolute and unconditional, to pay to the holders of the Notes the principal of
(and premium, if any) and interest on the Notes as and when the same shall
become due and payable in accordance with their terms, or is intended to or
shall affect the relative rights of the holders of the Notes and creditors of
the Company, other than the holders of Senior Indebtedness of the Company, nor
shall anything herein or therein prevent the Trustee or the holder of any Note
from exercising all remedies otherwise permitted by applicable law upon default
under the Indenture, subject to the rights, if any, under this Article 3 of the
holders of such Senior Indebtedness in respect of cash, property or securities
of the Company, received upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article 3, the Trustee, subject to the provisions of Section
7.01 of the Indenture, and the holders of the Notes, shall be entitled to rely
upon any order or decree made by any court of competent jurisdiction in which
such dissolution, winding-up, liquidation or reorganization proceedings are
pending, or a certificate of the receiver, trustee in bankruptcy, liquidation
trustee, agent or other Person making such payment or distribution, delivered to
the Trustee or to the holders of the Notes, for the purposes of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article 3.
SECTION 3.05 TRUSTEE TO EFFECTUATE SUBORDINATION. Each holder
of a Note by such holder's acceptance thereof authorizes and directs the Trustee
on such holder's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article 3 and appoints the
Trustee such holder's attorney-in-fact for any and all such purposes.
SECTION 3.06 NOTICE BY THE COMPANY. The Company shall give
prompt written notice to a Responsible Officer of the Trustee of any fact known
to the Company that would prohibit the making of any payment of monies to or by
the Trustee in respect of the Notes pursuant to the provisions of this Article
3. Notwithstanding the provisions of this Article 3 or any other provision of
the Indenture and this ______ Supplemental Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts that would prohibit the
making of any payment of monies to or by the Trustee in respect of the Notes
pursuant to the provisions of this Article III unless and until a Responsible
Officer of the Trustee shall have received written notice thereof at the
Principal Office of the Trustee from the Company or a holder or holders of
Senior Indebtedness or from any trustee therefor; and before the receipt of any
such written notice, the Trustee, subject to the provisions of Section 7.01 of
the Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section 3.06 at least two Business Days prior to the date
upon which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Note), then, anything herein
11
contained to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purposes for which
they were received, and shall not be affected by any notice to the contrary that
may be received by it within two Business Days prior to such date.
The Trustee, subject to the provisions of Section 7.01 of the
Indenture, shall be entitled to rely on the delivery to it of a written notice
by a Person representing himself to be a holder of Senior Indebtedness of the
Company (or a trustee on behalf of such holder) to establish that such notice
has been given by a holder of such Senior indebtedness or a trustee on behalf of
any such holder or holders. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any Person
as a holder of such Senior Indebtedness to participate in any payment or
distribution pursuant to this Article 3, the Trustee may request such Person to
furnish evidence to the reasonable satisfaction of the Trustee as to the amount
of such Senior Indebtedness held by such Person, the extent to which such Person
is entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article 3, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
SECTION 3.07 RIGHTS OF THE TRUSTEE; HOLDERS OF SENIOR
INDEBTEDNESS. The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article 3 in respect of any Senior Indebtedness at
any time held by it, to the same extent as any other holder of Senior
Indebtedness, and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
With respect to the holders of Senior Indebtedness of the
Company, the Trustee undertakes to perform or to observe only such of its
covenants and obligations as are specifically set forth in this Article 3, and
no implied covenants or obligations with respect to the holders of such Senior
Indebtedness shall be read into this Indenture against the Trustee. The Trustee
shall not be deemed to owe any fiduciary duty to the holders of such Senior
Indebtedness and, subject to the provisions of Section 7.01 of the Indenture,
the Trustee shall not be liable to any holder of such Senior Indebtedness if it
shall pay over or deliver to holders of Notes, the Company or any other Person
money or assets to which any holder of such Senior Indebtedness shall be
entitled by virtue of this Article 3 or otherwise.
SECTION 3.08 SUBORDINATION MAY NOT BE IMPAIRED. No right of
any present or future holder of any Senior Indebtedness of the Company to
enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of the
Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness of the Company may, at any time
and from time to time, without the consent of or notice to the Trustee or the
holders of the Notes, without incurring responsibility to the holders of the
Notes and without impairing or releasing the subordination provided in this
Article 3 or the obligations hereunder of the holders of the Notes to the
holders of such Senior Indebtedness, do any
12
one or more the following: (i) change the manner, place or terms of payment or
extend the time of payment of, or renew or alter, such Senior Indebtedness, or
otherwise amend or supplement in any manner such Senior Indebtedness or any
instrument evidencing the same or any agreement under which such Senior
Indebtedness is outstanding; (ii) sell, exchange, release or otherwise deal with
any property pledged, mortgaged or otherwise securing such Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of such Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
ARTICLE 4
MISCELLANEOUS PROVISIONS
SECTION 4.01 RECITALS BY COMPANY. The recitals in this ______
Supplemental Indenture are made by the Company only and not by the Trustee, and
all of the provisions contained in the Indenture in respect of the rights,
privileges, immunities, powers and duties of the Trustee shall be applicable in
respect of Notes and of this _______ Supplemental Indenture as fully and with
like effect as if set forth herein in full.
SECTION 4.02 RATIFICATION AND INCORPORATION OF INDENTURE. As
supplemented hereby, the Indenture is in all respects ratified and confirmed,
and the Indenture, as heretofore supplemented and modified, and this ________
Supplemental Indenture shall be read, taken and construed as one and the same
instrument.
SECTION 4.03 EXECUTED IN COUNTERPARTS. This ________
Supplemental Indenture may be simultaneously executed in several counterparts,
each of which shall be deemed to be an original, and such counterparts shall
together constitute but one and the same instrument.
SECTION 4.04 LISTING OF NOTES. If the Notes are to be issued
as a Global Security in connection with the distribution of the Notes to the
Holders of the Preferred Securities issued by the Securities Trust, the Company
will use its best efforts to list such Notes on the New York Stock Exchange or
any such other exchange on which such Preferred Securities are then listed and
traded.
13
IN WITNESS WHEREOF, each party hereto has caused this
instrument to be signed in its name and behalf by its duly authorized officers,
all as of the day and year first above written.
COMMONWEALTH EDISON COMPANY
ATTEST:
By: By:
---------------------------- -----------------------------
ATTEST: WILMINGTON TRUST COMPANY
By: By:
---------------------------- -----------------------------
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EXHIBIT A
FORM OF NOTE
NO. 1 CUSIP NO.
THE INDEBTEDNESS EVIDENCED BY THIS SECURITY IS, TO THE EXTENT PROVIDED IN THE
INDENTURE, SUBORDINATE AND SUBJECT IN RIGHT OF PAYMENT TO THE PRIOR PAYMENT IN
FULL OF ALL SENIOR INDEBTEDNESS OF THE COMPANY AND THIS SECURITY IS ISSUED
SUBJECT TO THE PROVISIONS OF THE INDENTURE WITH RESPECT THERETO.
COMMONWEALTH EDISON COMPANY
_____% JUNIOR SUBORDINATED NOTE
DUE ______ 1, 20__
Principal Amount: $_________
Regular Record Date: 15th calendar day prior to Interest Payment Date
Original Issue Date __________, 1997
Stated Maturity __________, 20__
Interest Payment Dates: __________, __________, __________ and __________,
Interest Rate: ____% per annum
Authorized Denomination: $25
Initial Redemption Date __________ 1, 20__
Commonwealth Edison Company, an Illinois corporation (the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to _____________________________________, or registered assigns, the principal
sum of _________ DOLLARS ($__________) on the Stated Maturity shown above (or
upon earlier redemption and subject to the right of the Company, under certain
conditions, to advance the Stated Maturity pursuant to the Indenture), and to
pay interest thereon from the Original Issue Date shown above, or from the most
recent Interest Payment Date to which interest has been paid or duly provided
for, quarterly in arrears on each Interest Payment Date as specified above,
commencing on the Interest Payment Date next succeeding the Original Issue Date
shown above and on the Stated Maturity (or upon earlier redemption and subject
to the
15
aforementioned right of the Company to advance the Stated Maturity) at the rate
per annum shown above until the principal hereof is paid or made available for
payment and on any overdue principal and on any overdue installment of interest.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date (other than an Interest Payment Date that is the Stated
Maturity or on a Redemption Date) will, as provided in such Indenture, be paid
to the Person in whose name this Note (the "Note") is registered at the close of
business on the Regular Record Date as specified above next preceding such
Interest Payment Date, provided that any interest payable at Stated Maturity or
on any Redemption Date will be paid to the Person to whom principal is payable.
Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Note is registered at the close of business on a Special Record Date
for the payment of such defaulted interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Notes of this series not less than 10 days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange, if
any, on which the Notes of this series shall be listed, and upon such notice as
may be required by any such exchange, all as more fully provided in the
Indenture.
Payments of interest on this Note will include interest
accrued to but excluding the respective Interest Payment Dates. Interest
payments for this Note shall be computed and paid on the basis of a 360-day year
of twelve 30-day months. In the event that any date on which interest is payable
on this Note is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day, except
that, if such Business Day is in the next succeeding calendar year, payment
shall be made on the immediately preceding Business Day, in each case with the
same force and effect as if made on the date the payment was originally payable.
A "Business Day" shall mean any day other than a Saturday or a Sunday or a day
on which banking institutions in New York City are authorized or required by law
or executive order to remain closed or a day on which the Corporate Trust Office
of the Trustee or the principal corporate trust office of the Property Trustee
of the Securities Trust are closed for business.
The Company shall have the right at any time and from time to
time during the term of this Note to extend the interest payment period of such
Note for up to 20 consecutive quarters but not beyond the Stated Maturity of
this Note (each, an "Extension Period"), during which periods unpaid interest
(together with interest thereon) will compound quarterly at the Interest Rate
("Deferred Interest"). Upon the termination of each Extension Period, which
shall be an Interest Payment Date, the Company shall pay all Deferred Interest
on the next succeeding Interest Payment Date to the Person in whose name this
Note is registered at the close of business on the Regular Record Date for such
Interest Payment Date, provided that any Deferred Interest payable at Stated
Maturity or on any Redemption Date will be paid to the Person to whom principal
is payable. Prior to the termination of any such Extension Period, the Company
may extend the interest payment period, provided that such Extension Period
together with all such previous and further extensions thereof shall not exceed
20 consecutive quarters. Upon the termination of any such Extension Period, and
the payment of all accrued and unpaid interest and any Additional Interest then
due, the Company may select a new Extension Period, subject to the above
requirements. If the Company shall have given notice of its election to select
any Extension Period, subject to certain exceptions provided in the Indenture,
neither the Company nor the Guarantor referred to herein shall (i) declare
16
or pay any dividend or distribution on, or redeem, purchase, acquire or make a
liquidation payment with respect to, any of its capital stock, or make any
guarantee payments with respect to the foregoing or (ii) make any payment of
interest, principal or premium, if any, on or repay, repurchase or redeem any
debt securities issued by it that rank pari passu with or junior to this Note or
the Notes Guarantee referred to herein. The Company shall give the Holder of
this Note and the Trustee notice of its selection or extension of an Extension
Period at least one Business Day prior to the earlier of (i) the Regular Record
Date relating to the Interest Payment Date on which the Extension Period is to
commence or relating to the Interest Payment Date on which an Extension Period
that is being extended would otherwise terminate or (ii) the date the Company or
Securities Trust is required to give notice to the New York Stock Exchange or
other applicable self-regulatory organization of the record date or the date
distributions are payable.
The Company also shall be obligated to pay when due and
without extension all additional amounts as may be required so that the net
amount received and retained by the Holder of this Note (if the Holder is a
Securities Trust) after paying taxes, duties, assessments or governmental
charges of whatever nature (other than withholding taxes) imposed by the United
States or any other taxing authority will not be less than the amounts such
Holder would have received had no such taxes, duties, assessments, or other
governmental charges been imposed.
Payment of the principal of and interest (including Additional
Interest, if any) due at the Stated Maturity or earlier redemption of the Notes
shall be made upon surrender of the Notes at the Corporate Trust Office of the
Trustee, in such coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private debts. Payment of
interest (including interest on an Interest Payment Date) will be made, subject
to such surrender where applicable, at the option of the Company, (i) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (ii) by wire transfer at such place and to
such account at a banking institution in the United States as may be designated
in writing to the Trustee at least 16 days prior to the date for payment by the
Person entitled thereto.
The indebtedness evidenced by this Note is, to the extent
provided in the Indenture, subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness (as defined in the Indenture)
of the Company, and this Note is issued subject to the provisions of the
Indenture with respect thereto. Each Holder of this Note, by accepting the same,
(a) agrees to and shall be bound by such provisions, (b) authorizes and directs
the Trustee on his behalf to take such action as may be necessary or appropriate
to effectuate the subordination so provided, and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes. Each Holder hereof, by his
acceptance hereof, waives all notice of the acceptance of the subordination
provisions contained herein and in the Indenture by each holder of Senior
Indebtedness of the Company, whether now outstanding or hereafter incurred, and
waives reliance by each such holder upon said provisions.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS
NOTE SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
17
Unless the certificate of authentication hereon has been
executed by the Trustee by manual signature, this Note shall not be entitled to
any benefit under the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to
be duly executed under its corporate seal.
Dated: ________ __, 20__.
COMMONWEALTH EDISON COMPANY
By:
Vice President
Attest:
Assistant Secretary
(Seal of
COMMONWEALTH EDISON COMPANY appears here)
18
(Reverse Side of Note)
This Note is one of a duly authorized issue of Junior
Subordinated Notes of the Company (the "Notes"), issued and issuable in one or
more series under a Subordinated Note Indenture, dated as of September 1, 1995,
as supplemented (the "Indenture"), among the Company, the Guarantor and
Wilmington Trust Company, Trustee (the "Trustee," which term includes any
successor trustee under the Indenture), to which Indenture and all indentures
incidental thereto reference is hereby made for a statement of the respective
rights, limitation of rights, duties and immunities thereunder of the Company,
the Guarantor, the Trustee and the Holders of the Notes issued thereunder and of
the terms upon which said Notes are, and are to be, authenticated and delivered.
This Note is one of the series designated on the face hereof as ____% Junior
Subordinated Notes due ___________ 1, 20__ (the "Notes") in the aggregate
principal amount of up to $__________. Capitalized terms used herein for which
no definition is provided herein shall have the meanings set forth in the
Indenture.
The Company shall have the right, subject to the terms and
conditions of the Indenture, to redeem this Note at any time on or after _______
1, 200_, at the option of the company, without premium or penalty, in whole or
in part, at a Redemption Price, at a redemption price equal to 100% of the
principal amount to be redeemed plus any accrued and unpaid interest, including
Additional Interest, if any, to the Redemption Date . Upon the occurrence of a
Special Event (as defined below) at any time, the Company may, within 90 days
following the occurrence thereof and subject to the terms and conditions of the
Indenture, redeem this Note without premium or penalty, in whole, at a
Redemption Price equal to 100% of the principal amount thereof plus any accrued
and unpaid interest, including Additional Interest, if any, to the Redemption
Date. A Special Event may be a Tax Event or an Investment Company Act Event.
"Tax Event" means that the Company shall have received an Opinion of Counsel
experienced in such matters to the effect that, as a result of (a) any amendment
to, or change (including any announced prospective change) in, laws (or any
regulations thereunder) of the United States or any political subdivision or
taxing authority thereof or therein or (b) any amendment to, or change in, an
interpretation or application of such laws or regulations, there is more than an
insubstantial risk that (i) the related Securities Trust would be subject to
United States federal income tax with respect to income accrued or received on
the Notes, (ii) interest payable to the related Securities Trust would not be
deductible by the Company for United States federal income tax purposes, or
(iii) the related Securities Trust would be subject to more than a de minimis
amount of other taxes, duties or other governmental charges, which change or
amendment becomes effective on or after the Original Issue Date. "Investment
Company Act Event" means that the Company shall have received an Opinion of
Counsel to the effect that, as a result of the occurrence of a change in law or
regulation or a written change in interpretation or application of law or
regulation by any legislative body, court, governmental agency or regulatory
authority, there is more than an insubstantial risk that the related Securities
Trust is or will be considered an "investment company" which is required to be
registered under the Investment Company Act of 1940, as amended, which change
becomes effective on or after the Original Issue Date.
In the event of redemption of this Note in part only, a new
Note or Notes of this series for the unredeemed portion hereof will be issued in
the name of the Holder hereof upon the surrender hereof. The Notes will not have
a sinking fund.
19
If an Event of Default with respect to the Notes of this
series shall occur and be continuing, the principal of the Notes of this series
may be declared due and payable in the manner, with the effect and subject to
the conditions provided in the Indenture.
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the Guarantor and the rights of the Holders of
the Notes of each series to be affected under the Indenture at any time by the
Company, the Guarantor and the Trustee with the consent of the Holders of not
less than a majority in principal amount of the Notes of each series at the time
Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Notes at the time Outstanding, on behalf of the Holders of all Notes of
such series, to waive compliance by the Company with certain provisions of the
Indenture and certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Note shall be conclusive and
binding upon such Holder and upon all future Holders of this Note and of any
Note issued upon the registration of transfer hereof or in exchange hereof or in
lieu hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Indenture and no provision of this
Note or of the Indenture shall alter or impair the obligation of the Company,
which is absolute and unconditional, to pay the principal of and interest on
this Note at the times, place and rate, and in the coin or currency, herein
prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Note is registrable in the
Security Register, upon surrender of this Note for registration of transfer at
the office or agency of the Company for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar and duly executed by, the Holder hereof or
his attorney duly authorized in writing, and thereupon one or more new Notes of
this series, of authorized denominations and of like tenor and for the same
aggregate principal amount, will be issued to the designated transferee or
transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company, the Guarantor, the Trustee and any agent of the Company,
the Guarantor or the Trustee may treat the Person in whose name this Note is
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and neither the Company, the Guarantor, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Notes of this Series are issuable only in registered form
without coupons in denominations of $25 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Notes of this Series are exchangeable for a like aggregate principal amount of
Notes of this series of a different authorized denomination, as requested by the
Holder surrendering the same upon surrender of the Note or Notes to be exchanged
at the office or agency of the Company.
20
This Note shall be governed by, and construed in accordance
with, the internal laws of the State of New York.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM- as tenants in common UNIF GIFT MIN ACT- ______ Custodian _______
(Cust) (Minor)
TEN ENT- as tenants by the
entireties under Uniform Gifts to Minors Act
JT TEN- as joint tenants with
right of survivorship and ---------------------------
not as tenants in common (State)
Additional abbreviations may also be used though not on the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s) and transfer(s) unto
(please insert Social Security or other identifying number of assignee)
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing
agent to transfer said Note on the books of the Company, with full power of
substitution in the premises.
Dated:
NOTICE: The signature to this assignment
must correspond with the name as written
upon the face of the within instrument in
every particular without alteration or
enlargement, or any change whatever.
21
