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This Issuing and Paying Agency Agreement, dated as of April 29, 1998 (the Agreement"), between Potomac Capital Investment Corporation, a Delaware corporation having its principal place of business at 1801 K Street, N.W., Suite 900, Washington, D.C. 20006 (the "Issuer"), and The Bank of New York, a New York banking corporation maintaining its principal corporate trust office at 101 Barclay Street, Floor 7E, New York, New York 10286, as issuing and paying agent (the "Issuing and Paying Agent"). | |||||||||||||||||||
(i) each Global Note representing Book-Entry Notes will be deposited with, or on behalf of, the Depositary and registered in the name of the Depositary or a nominee thereof; | |||||||||||||||||||
(c) Proxies. The Registered Holder of a Note may grant proxies and otherwise authorize any person, including Participants and persons that may hold interests through Participants, to take any action which such Registered Holder is entitled to take under this Agreement or such Note. | |||||||||||||||||||
(i) name of the person in whose name the related Note is to be registered (the "Registered Holder"); | |||||||||||||||||||
(A) Interest Category (i.e., whether such Note is a Regular Floating Rate Note, an Inverse Floating Rate Note, a Floating Rate/Fixed Rate Note or another type of Floating Rate Note); | |||||||||||||||||||
(xii) Interest Payment Dates for such Note; | |||||||||||||||||||
(b) Registration. Authentication and Delivery. Upon receipt from an Authorized Representative of the issuance instructions referred to in Section 4( a) in respect of a Note, the Issuing and Paying Agent shall withdraw the necessary Notes from safekeeping and, in accordance with such instructions, shall: | |||||||||||||||||||
(i) complete each Note as to the matters referred to in Section 4(a); | |||||||||||||||||||
(c) Receipt of Instructions. Instructions given by an Authorized Representative by facsimile transmission, in writing or by other electronic means must be received by the Issuing and Paying Agent not later than the times specified in the Administrative Procedures. In the event that instructions are received by the Issuing and Paying Agent later than the times specified in the Administrative Procedures, such instructions shall not be deemed to be received until the business day following such receipt. | |||||||||||||||||||
(i) | if to the Issuer: | ||||||||||||||||||
(c) Notices and other communications hereunder or under the Notes to the Registered Holders thereof shall be in writing, sent by first class mail, postage prepaid, to the addresses of such Registered Holders as they appear in the Note Register or in such other addresses as such Registered Holders shall specify to the Issuing and Paying Agent from time to time. | |||||||||||||||||||
POTOMAC CAPITAL INVESTMENT | |||||||||||||||||||
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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE SECURITIES ACT OR SUCH OTHER SECURITIES LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN PRINCIPAL AMOUNTS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS NOTE, AGREES FOR THE BENEFIT OF POTOMAC CAPITAL INVESTMENT CORPORATION (THE "COMPANY") THAT THIS NOTE MAY BE RESOLD OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY OR MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, GOLDMAN, SACHS & CO. AND SALOMON BROTHERS INC (EACH, AN "AGENT", AND COLLECTIVELY, THE "AGENTS"), OR BY, THROUGH, OR IN A TRANSACTION APPROVED BY, AN AGENT, (2) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RU LE 144A (A "QIB"), THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE QIBS) AND TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR THAT QUALIFIES AS AN ACCREDITED INVESTOR, AS DEFINED IN RULE 501 (a) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR"), THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (5) TO AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY REGULATION S UNDER THE SECURITIES ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION; PROVIDED THAT THE AGREEMENT OF THE HOLDER HEREOF IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF THE HOLDER'S PROPERTY SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS CONTROL. WITH RESPECT TO ANY RESALE OR OTHER TRANSFER OF THIS NOTE (IF IN CERTIFICATED FORM) DESCRIBED IN CLAUSE (2), (4) OR (5) ABOVE, THE BANK OF NEW YORK, AS THE ISSUING AND PAYING AGENT FOR THE NOTES (THE "ISSUING AND PAYING AGENT"), WILL REQUIRE THE SUBMISSION TO IT OF THIS NOTE DULY COMPLETED OR A DULY COMPLETED BOND POWER IN THE FORM ATTACHED TO THE PRIVATE PLACEMENT MEMORANDUM RELATING TO THIS NOTE AS EXHIBIT A; PROVIDED THAT THE FOREGOING SUBMISSION SHALL NOT BE REQUIRED IF THIS LEGEND HAS BEEN REMOVED IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THE ISSUING AND PAYING AGENCY AGREEMENT BETWEEN THE COMPANY AND THE ISSUING AND PAYING AGENT, AS AM ENDED OR MODIFIED (THE "ISSUING AND PAYING AGENCY AGREEMENT"). | |||||||||||||||||||
REGISTERED | CUSIP No.: | PRINCIPAL AMOUNT: | |||||||||||||||||
POTOMAC CAPITAL INVESTMENT CORPORATION | |||||||||||||||||||
INTEREST RATE BASIS | ORIGINAL ISSUE DATE: | STATED MATURITY DATE: | |||||||||||||||||
IF LIBOR: | IF CMT RATE: | ||||||||||||||||||
INDEX MATURITY: | INITIAL INTEREST RATE: % | INTEREST PAYMENT DATE(S): | |||||||||||||||||
SPREAD (PLUS OR MINUS: | SPREAD MULTIPLIER : | INITIAL INTEREST RESET | |||||||||||||||||
MINIMUM INTEREST RATE: % | MAXIMUM INTEREST RATE: % | INTEREST RESET DATE(S): | |||||||||||||||||
INITIAL REDEMPTION DATE: | INITIAL REDEMPTION PERCENTAGE: % | ANNUAL REDEMPTION PERCENTAGE REDUCTION: % | |||||||||||||||||
OPTIONAL REPAYMENT DATE(S): | CALCULATION AGENT: | ||||||||||||||||||
INTEREST CATEGORY: | DAY COUNT CONVENTION: | ||||||||||||||||||
AUTHORIZED DENOMINATION: | |||||||||||||||||||
EXCHANGE RATE AGENT: | ADDENDUM ATTACHED | ||||||||||||||||||
OTHER/ADDITIONAL PROVISIONS: | |||||||||||||||||||
POTOMAC CAPITAL INVESTMENT CORPORATION, a Delaware corporation (the "Company"), for value received, hereby promises to pay to , or registered assigns, the Principal Amount of , on the Stated Maturity Date specified above (or any Redemption Date or Repayment Date, each as defined on the reverse hereof, or any earlier date of acceleration of maturity) (each such date being hereinafter referred to as the "Maturity Date" with respect to the principal repayable on such date) and to pay interest thereon (and on any overdue principal, premium and/or interest to the extent legally enforceable), at a rate per annum equal to the Initial Interest Rate specified above until the Initial Interest Reset Date specified above and thereafter at a rate determined in accordance with the provisions specified above and on the reverse hereof or in an Addendum hereto with respect to one or more Interest Rate Bases specified above until the principal hereof is paid or duly made available for payment. The Company will pay interest in arrears on each Interest Payment Date, if any, specified above (each, an "Interest Payment Date"), commencing with the first Interest Payment Date next succeeding the Original Issue Date specified above, and on the Maturity Date;provided, however,that if the Original Issue Date occurs between a Record Date (as defined below) and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date next succeeding the Original Issue Date to the registered holder (the "Holder") of this Note on the Record Date with respect to such second Interest Payment Date. | |||||||||||||||||||
Payment of principal, premium, if any, and interest in respect of this Note due on the Maturity Date will be made in immediately available funds upon presentation and surrender of this Note (and, with respect to any applicable repayment of this Note, upon delivery of a duly completed election form as contemplated on the reverse hereof) at the corporate trust office of the Issuing and Paying Agent maintained for that purpose in the Borough of Manhattan, The City of New York, currently located at 101 Barclay Street, Floor 7E, New York, New York 10286, or at such other paying agency in the Borough of Manhattan, The City of New York, as the Company may determine. Payment of interest due on any Interest Payment Date other than the Maturity Date will be made by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register maintained at the aforementioned office of the Issuing and Paying Age nt;provided, however,that a Holder of U.S.$10,000,000 or more in aggregate principal amount of Notes (whether having identical or different terms and provisions) will be entitled to receive interest payments on such Interest Payment Date by wire transfer of immediately available funds if appropriate wire transfer instructions have been received in writing by the Issuing and Paying Agent not less than 15 calendar days prior to such Interest Payment Date. Any such wire transfer instructions received by the Issuing and Paying Agent shall remain in effect until revoked by such Holder. | |||||||||||||||||||
POTOMAC CAPITAL INVESTMENT CORPORATION | |||||||||||||||||||
Dated: | |||||||||||||||||||
[REVERSE OF NOTE] | |||||||||||||||||||
This Note is one of a duly authorized series of debt securities of the Company designated as "Medium-Term Notes, Series D, With Maturities from 9 Months and 1 Day from Date of Issue Through November 30, 2008" (the "Notes") issued and to be issued under an Issuing and Paying Agency Agreement, dated as of April 29, 1998, as amended or modified from time to time (the "Issuing and Paying Agency Agreement"), between the Company and The Bank of New York, as Issuing and Paying Agent (the "Issuing and Paying Agent", which term includes any successor Issuing and Paying Agent under the Issuing and Paying Agency Agreement). Reference is hereby made to the Issuing and Paying Agency Agreement for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Issuing and Paying Agent and the Holders of the Notes. In acting under the Issuing and Paying Agency Agreement, the Issuing and Paying Agent is acting solely as an agent of the Company and does not assume any obligation or relationship of agency or trust for any of the owners or Holders of Notes, except with respect to any funds held by the Issuing and Paying Agent for any payment in respect of this Note as provided below. | |||||||||||||||||||
(i) Unless the Interest Category of this Note is specified on the face hereof as a "Floating Rate/Fixed Rate Note" or an "Inverse Floating Rate Note", or the face hereof specifies that either Other/Additional Provisions or an Addendum hereto applies, in each case, relating to a different interest rate formula, this Note shall be designated as a "Regular Floating Rate Note and, except as set forth below or specified on the face hereof or in an Addendum hereto, shall bear interest at the rate determined by reference to the applicable Interest Rate Basis or Bases (a) plus or minus the Spread, if any, and/or (b) multiplied by the Spread Multiplier, if any, in each case as specified on the face hereof. Commencing on the Initial Interest Reset Date, the rate at which interest on this Note shall be payable shall be reset as of each Interest Reset Date specified on the face hereof;provided, however,that the interest rate in effect f or the period, if any, from the Original Issue Date to the Initial Interest Reset Date shall be the Initial Interest Rate. | |||||||||||||||||||
Except as set forth above or specified on the face hereof or in an Addendum hereto, the interest rate in effect on each day shall be (i) if such day is an Interest Reset Date, the interest rate determined as of the Interest Determination Date (as defined below) immediately preceding such Interest Reset Date or (ii) if such day is not an Interest Reset Date, the interest rate determined as of the Interest Determination Date immediately preceding the most recent Interest Reset Date. If any Interest Reset Date would otherwise be a day that is not a Business Day, such Interest Reset Date shall be postponed to the next succeeding Business Day, except that if LIBOR is an applicable Interest Rate Basis and such Business Day falls in the next succeeding calendar month, such Interest Reset Date shall be the immediately preceding Business Day. In addition, if the Treasury Rate is an applicable Interest Rate Basis and the Interest Determination Date would otherwise fall on an Interest Reset Date, then such Interest Reset Date will be postponed to the next succeeding Business Day. | |||||||||||||||||||
Money Market Yield = D x 360 x 100 | |||||||||||||||||||
where "D" refers to the applicable per annum rate for commercial paper quoted on a bank discount basis and expressed as a decimal, and "M" refers to the actual number of days in the applicable Interest Reset Period. | |||||||||||||||||||
(i) liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; | |||||||||||||||||||
The Company (including its consolidated subsidiaries) will maintain a minimum tangible net worth (calculated in accordance with generally accepted accounting principles in effect on April 29, 1998) of at least $100,000,000. | |||||||||||||||||||
(i) default in the payment of any interest on its Note or in the payment of interest on or principal of any other Note issued pursuant to the Issuing and Paying Agency Agreement when due, which default continues and remains unremedied for at least thirty calendar days; or (ii) a decree or order by a court having jurisdiction shall have been entered adjudging the Company or Potomac Electric Power Company ("PEPCO") , a bankrupt or insolvent, or approving as properly filed a petition seeking reorganization of the Company or PEPCO under the Bankruptcy Code or any other similar applicable Federal or State law, and such decree or order shall have continued undischarged and unstayed for a period of sixty days; or a decree or order of a court having jurisdiction for the appointment of a receiver or liquidator or trustee or assignee in bankruptcy or insolvency of either the Company or PEPCO or of its proper ty, or for the winding up or liquidation of its affairs, shall have been entered, and such decree or order shall have continued undischarged and unstayed for a period of sixty days; or | |||||||||||||||||||
provided, however,that any default pursuant to clause (iv) or (v) of this paragraph may be waived prior to any declaration of acceleration with respect to such default by the written consent of the holders of at least a majority in aggregate principal amount of Notes at the time outstanding. | |||||||||||||||||||
ABBREVIATIONS | |||||||||||||||||||
The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: | |||||||||||||||||||
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto | |||||||||||||||||||
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OPTION TO ELECT REPAYMENT | |||||||||||||||||||
The undersigned hereby irrevocably request(s) and instruct (s) the Company to repay this Note (or portion hereof specified below) pursuant to its terms at a price equal to 100% of the principal amount to be repaid, together with unpaid interest accrued hereon to the Repayment Date, to the undersigned, at &nb sp; | |||||||||||||||||||
For this Note to be repaid, the Issuing and Paying Agent must receive at its corporate trust office in the Borough of Manhattan, The City of New York, currently located at 101 Barclay Street, Floor 7E, New York, New York 10286, not more than 60 nor less than 30 calendar days prior to the Repayment Date, this Note with this "Option to Elect Repayment" form duly completed. | |||||||||||||||||||
Principal Amount to be Repaid: $ | Notice: The signature(s) on this Option to Date: Elect Repayment must correspond with the name(s) as written upon the face of this Note in every particular, without alteration or enlargement or any change whatsoever. | ||||||||||||||||||
CERTIFICATE OF TRANSFER | |||||||||||||||||||
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE ISSUING AND PAYING AGENT IF THE UNDERSIGNED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER THIS NOTE: | |||||||||||||||||||
[CHECK ONE] | |||||||||||||||||||
[ ] (a) | Such Note is being transferred by the undersigned Holder to a "qualified institutional buyer", as defined in Rule 144A under the Securities Act of 1933, as amended, pursuant to the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder. | ||||||||||||||||||
or | |||||||||||||||||||
[ ] (b) | Such Note is being transferred by the undersigned Holder to an institutional investor which is an "accredited investor", as defined in Rule 501(a) under the Securities Act of 1933, as amended, and that the undersigned Holder has been advised by the prospective transferee that such transferee will hold such Note for its own account, or as a fiduciary or agent for others (which others are also institutional accredited investors, unless such transferee is a bank acting in its fiduciary capacity), for investment purposes and not for distribution, subject to any requirement of law that the disposition of such transferee's property shall at all times be and remain within its control. | ||||||||||||||||||
or | |||||||||||||||||||
[ ] (c) | Such Note is being transferred by the undersigned Holder to an institutional investor which is an "accredited investor", as defined in Rule 501 (a) under the Securities Act of 1933, as amended, in an "offshore transaction", as defined in Regulation S under the Securities Act of 1933, as amended, pursuant to the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder. | ||||||||||||||||||
If none of the foregoing boxes are checked, then, so long as this Note shall bear a legend on the face thereof restricting resales and other transfers thereof (except in the case of a resale or other transfer made to the Company or to, by, through, or in a transaction approved by, an Agent), the Issuing and Paying Agent shall not be obligated to register this Note in the name of any person other than the undersigned Holder and until the conditions to any such transfer of registration set forth in this Note and in the Issuing and Paying Agency Agreement shall have been satisfied. | |||||||||||||||||||
Dated: | | ||||||||||||||||||
TO BE COMPLETED BY TRANSFEREE IF (a) ABOVE IS CHECKED: | |||||||||||||||||||
The undersigned transferee represents and warrants that (i) it is a "qualified institutional buyer", as defined in Rule 144A under the Securities Act of 1933, as amended, (ii) this instrument has been executed on behalf of the undersigned transferee by one of its executive officers and (iii) it is aware that the Holder of this Note is relying upon the undersigned transferee's foregoing representations in order to claim the exemption from registration provided by Rule 144A. The undersigned transferee acknowledges and agrees that this Note has not been registered under the Securities Act of 1933, as amended, and may not be transferred except in accordance with the resale and other transfer restrictions set forth in the legend on the face hereof. | |||||||||||||||||||
Dated: | | ||||||||||||||||||
TO BE COMPLETED BY TRANSFEREE | |||||||||||||||||||
The undersigned transferee represents and warrants that it is an institutional investor and an "accredited investor", as defined in Rule 501(a) under the Securities Act of 1933, as amended, and that this instrument has been executed on behalf of the undersigned transferee by one if its executive officers. The undersigned transferee undertakes to hold this Note acquired from the Holder hereof for its own account, or as a fiduciary or agent for others (which others are also institutional accredited investors, unless such transferee is a bank acting in its fiduciary capacity), for investment purposes and not for distribution, subject to any requirement of law that the disposition of the undersigned transferee's property shall at all times be and remain within its control. The undersigned acknowledges and agrees that this Note has not been registered under the Securities Act of 1933, as amended, and may not be transferred except in accord ance with the resale and other transfer restrictions set forth in the legend on the face hereof. | |||||||||||||||||||
Dated: | | ||||||||||||||||||
TO BE COMPLETED BY TRANSFEREE | |||||||||||||||||||
The undersigned transferee represents and warrants that it is an institutional investor and an "accredited investor", as defined in Rule 501(a) under the Securities Act of 1933, as amended, and that this instrument has been executed on behalf of the undersigned transferee by one of its executive officers. In addition, the undersigned transferee represents and warrants that it is not a U.S. person (as defined in Regulation S under the Securities Act of 1933, as amended) and it is acquiring this Note from the Holder hereof in an "offshore transaction" (as defined in Regulation S) pursuant to the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder. The undersigned transferee acknowledges and agrees that this Note has not been registered under the Securities Act of 1933, as amended, and may not be transferred except in accordance with the resale and other transfer restrictions set forth in the legend on the face hereof. | |||||||||||||||||||
Dated: | | ||||||||||||||||||
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THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY OTHER SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD IN VIOLATION OF THE SECURITIES ACT OR SUCH OTHER SECURITIES LAWS. THIS NOTE MAY BE TRANSFERRED ONLY IN PRINCIPAL AMOUNTS OF $250,000 AND INTEGRAL MULTIPLES OF $1,000 IN EXCESS THEREOF. THE HOLDER HEREOF, BY PURCHASING OR ACCEPTING THIS NOTE, AGREES FOR THE BENEFIT OF POTOMAC CAPITAL INVESTMENT CORPORATION (THE "COMPANY") THAT THIS NOTE MAY BE RESOLD OR OTHERWISE TRANSFERRED ONLY (1) TO THE COMPANY OR MERRILL LYNCH & CO., MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED, GOLDMAN, SACHS & CO. AND SALOMON BROTHERS INC (EACH, AN "AGENT", AND COLLECTIVELY, THE "AGENTS"), OR BY, THROUGH, OR IN A TRANSACTION APPROVED BY, AN AGENT, (2) SO LONG AS THIS NOTE IS ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER, AS DEFINED IN RU LE 144A (A "QIB"), THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE QIBS) AND TO WHOM NOTICE IS GIVEN THAT THE RESALE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (4) TO AN INSTITUTIONAL INVESTOR THAT QUALIFIES AS AN ACCREDITED INVESTOR, AS DEFINED IN RULE 501 (a) UNDER THE SECURITIES ACT (AN "INSTITUTIONAL ACCREDITED INVESTOR"), THAT IS ACQUIRING THIS NOTE FOR ITS OWN ACCOUNT OR AS A FIDUCIARY OR AGENT FOR OTHERS (WHICH OTHERS MUST ALSO BE INSTITUTIONAL ACCREDITED INVESTORS UNLESS SUCH TRANSFEREE IS A BANK ACTING IN ITS FIDUCIARY CAPACITY) FOR INVESTMENT PURPOSES AND NOT FOR DISTRIBUTION IN VIOLATION OF THE SECURITIES ACT, (5) TO AN INSTITUTIONAL ACCREDITED INVESTOR ACQUIRING THIS NOTE IN AN OFFSHORE TRANSACTION PURSUANT TO AN EXEMPTION FROM REGISTRATION PROVIDED BY REGULATION S UNDER THE SECURITIES ACT OR (6) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY OTHER JURISDICTION; PROVIDED THAT THE AGREEMENT OF THE HOLDER HEREOF IS SUBJECT TO ANY REQUIREMENT OF LAW THAT THE DISPOSITION OF THE HOLDER'S PROPERTY SHALL AT ALL TIMES BE AND REMAIN WITHIN ITS CONTROL. WITH RESPECT TO ANY RESALE OR OTHER TRANSFER OF THIS NOTE (IF IN CERTIFICATED FORM) DESCRIBED IN CLAUSE (2), (4) OR (5) ABOVE, THE BANK OF NEW YORK, AS THE ISSUING AND PAYING AGENT FOR THE NOTES (THE "ISSUING AND PAYING AGENT"), WILL REQUIRE THE SUBMISSION TO IT OF THIS NOTE DULY COMPLETED OR A DULY COMPLETED BOND POWER IN THE FORM ATTACHED TO THE PRIVATE PLACEMENT MEMORANDUM RELATING TO THIS NOTE AS EXHIBIT A; PROVIDED THAT THE FOREGOING SUBMISSION SHALL NOT BE REQUIRED IF THIS LEGEND HAS BEEN REMOVED IN ACCORDANCE WITH THE PROCEDURES SET FORTH IN THE ISSUING AND PAYING AGENCY AGREEMENT BETWEEN THE COMPANY AND THE ISSUING AND PAYING AGENT, AS AM ENDED OR MODIFIED (THE "ISSUING AND PAYING AGENCY AGREEMENT"). 1This paragraph applies to Global Notes only. | |||||||||||||||||||
REGISTERED | CUSIP No.: | PRINCIPAL AMOUNT: | |||||||||||||||||
POTOMAC CAPITAL INVESTMENT CORPORATION | |||||||||||||||||||
ORIGINAL ISSUE DATE: | ORIGINAL ISSUE DATE: | STATED MATURITY DATE: | |||||||||||||||||
INTEREST PAYMENT DATE(S) | |||||||||||||||||||
INITIAL REDEMPTION DATE: | INTEREST RATE: % | ANNUAL REDEMPTION PERCENTAGE REDUCTION: % | |||||||||||||||||
OPTIONAL REPAYMENT DATE(S): | |||||||||||||||||||
AUTHORIZED DENOMINATION: | EXCHANGE RATE AGENT: | ||||||||||||||||||
ADDENDUM ATTACHED | |||||||||||||||||||
OTHER/ADDITIONAL PROVISIONS: | |||||||||||||||||||
POTOMAC CAPITAL INVESTMENT CORPORATION, a Delaware corporation (the "Company"), for value received, hereby promises to pay to , or registered assigns, the Principal Amount of , on the Stated Maturity Date specified above (or any Redemption Date or Repayment Date, each as defined on the reverse hereof, or any earlier date of acceleration of maturity) (each such date being hereinafter referred to as the "Maturity Date" with respect to the principal repayable on such date) and to pay interest thereon (and on any overdue principal, premium and/or interest to the extent legally enforceable), at the Interest Rate per annum is paid or duly made available for payment. The Company will pay interest in arrears on each Interest Payment Date, if any, specified above (each, an "Interest Payment Date"), commencing with the first Interest Payment Date next succeeding the Original Issue Date specified above, and on the Maturity Date;provided, however,that if the Original Issue Date occurs between a Record Date (as defined below) and the next succeeding Interest Payment Date, interest payments will commence on the second Interest Payment Date next succeeding the Original Issue Date to the registered holder (the "Holder") of this Note on the Record Date with respect to such second Interest Payment Date. Interest on this Note will be computed on the basis of a 360-day year of twelve 30-day months. | |||||||||||||||||||
Payment of principal, premium, if any, and interest in respect of this Note due on the Maturity Date will be made in immediately available funds upon presentation and surrender of this Note (and, with respect to any applicable repayment of this Note, upon delivery of a duly completed election form as contemplated on the reverse hereof) at the corporate trust office of the Issuing and Paying Agent maintained for that purpose in the Borough of Manhattan, The City of New York, currently located at 101 Barclay Street, Floor 7E, New York, New York 10286, or at such other paying agency in the Borough of Manhattan, The City of New York, as the Company may determine. Payment of interest due on any Interest Payment Date other than the Maturity Date will be made by check mailed to the address of the person entitled thereto as such address shall appear in the Security Register maintained at the aforementioned office of the Issuing and Paying Age nt;provided, however,that a Holder of U.S.$10,000,000 or more in aggregate principal amount of Notes (whether having identical or different terms and provisions) will be entitled to receive interest payments on such Interest Payment Date by wire transfer of immediately available funds if appropriate wire transfer instructions have been received in writing by the Issuing and Paying Agent not less than 15 calendar days prior to such Interest Payment Date. Any such wire transfer instructions received by the Issuing and Paying Agent shall remain in effect until revoked by such Holder. | |||||||||||||||||||
POTOMAC CAPITAL INVESTMENT CORPORATION | |||||||||||||||||||
Dated: | |||||||||||||||||||
[REVERSE OF NOTE] | |||||||||||||||||||
This Note is one of a duly authorized series of debt securities of the Company designated as "Medium-Term Notes, Series D, With Maturities from 9 Months and 1 Day from Date of Issue Through November 30, 2008" (the "Notes") issued and to be issued under an Issuing and Paying Agency Agreement, dated as of April 29, 1998, as amended or modified from time to time (the "Issuing and Paying Agency Agreement"), between the Company and The Bank of New York, as Issuing and Paying Agent (the "Issuing and Paying Agent", which term includes any successor Issuing and Paying Agent under the Issuing and Paying Agency Agreement). Reference is hereby made to the Issuing and Paying Agency Agreement for a statement of the respective rights, limitations of rights, duties and immunities thereunder of the Company, the Issuing and Paying Agent and the Holders of the Notes. In acting under the Issuing and Paying Agency Agreement, the Issuing and Paying Agent is acting solely as an agent of the Company and does not assume any obligation or relationship of agency or trust for any of the owners or Holders of Notes, except with respect to any funds held by the Issuing and Paying Agent for any payment in respect of this Note as provided below. | |||||||||||||||||||
(i) liens securing taxes, assessments or governmental charges or levies or the claims or demands of materialmen, mechanics, carriers, warehousemen, landlords and other like persons; | |||||||||||||||||||
The Company (including its consolidated subsidiaries) will maintain a minimum tangible net worth (calculated in accordance with generally accepted accounting principles in effect on April 29, 1998) of at least $100,000,000. | |||||||||||||||||||
(i) default in the payment of any interest on its Note or in the payment of interest on or principal of any other Note issued pursuant to the Issuing and Paying Agency Agreement when due, which default continues and remains unremedied for at least thirty calendar days; or | |||||||||||||||||||
provided, however,that any default pursuant to clause (iv) or (v) of this paragraph may be waived prior to any declaration of acceleration with respect to such default by the written consent of the holders of at least a majority in aggregate principal amount of Notes at the time outstanding. | |||||||||||||||||||
ABBREVIATIONS | |||||||||||||||||||
The following abbreviations, when used in the inscription on the face of this Note, shall be construed as though they were written out in full according to applicable laws or regulations: | |||||||||||||||||||
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s) unto | |||||||||||||||||||
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OPTION TO ELECT REPAYMENT | |||||||||||||||||||
The undersigned hereby irrevocably request(s) and instruct (s) the Company to repay this Note (or portion hereof specified below) pursuant to its terms at a price equal to 100% of the principal amount to be repaid, together with unpaid interest accrued hereon to the Repayment Date, to the undersigned, at &nb sp; | |||||||||||||||||||
For this Note to be repaid, the Issuing and Paying Agent must receive at its corporate trust office in the Borough of Manhattan, The City of New York, currently located at 101 Barclay Street, Floor 7E, New York, New York 10286, not more than 60 nor less than 30 calendar days prior to the Repayment Date, this Note with this "Option to Elect Repayment" form duly completed. | |||||||||||||||||||
Principal Amount to be Repaid: $ | Notice: The signature(s) on this Option to Date: Elect Repayment must correspond with the name(s) as written upon the face of this Note in every particular, without alteration or enlargement or any change whatsoever. | ||||||||||||||||||
CERTIFICATE OF TRANSFER | |||||||||||||||||||
TO BE COMPLETED AND DELIVERED WITH THIS NOTE TO THE ISSUING AND PAYING AGENT IF THE UNDERSIGNED HOLDER WISHES TO SELL, ASSIGN AND TRANSFER THIS NOTE: | |||||||||||||||||||
[CHECK ONE] | |||||||||||||||||||
[ ] (a) | Such Note is being transferred by the undersigned Holder to a "qualified institutional buyer", as defined in Rule 144A under the Securities Act of 1933, as amended, pursuant to the exemption from registration under the Securities Act of 1933, as amended, provided by Rule 144A thereunder. | ||||||||||||||||||
or | |||||||||||||||||||
[ ] (b) | Such Note is being transferred by the undersigned Holder to an institutional investor which is an "accredited investor", as defined in Rule 501(a) under the Securities Act of 1933, as amended, and that the undersigned Holder has been advised by the prospective transferee that such transferee will hold such Note for its own account, or as a fiduciary or agent for others (which others are also institutional accredited investors, unless such transferee is a bank acting in its fiduciary capacity), for investment purposes and not for distribution, subject to any requirement of law that the disposition of such transferee's property shall at all times be and remain within its control. | ||||||||||||||||||
or | |||||||||||||||||||
[ ] (c) | Such Note is being transferred by the undersigned Holder to an institutional investor which is an "accredited investor", as defined in Rule 501 (a) under the Securities Act of 1933, as amended, in an "offshore transaction", as defined in Regulation S under the Securities Act of 1933, as amended, pursuant to the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder. | ||||||||||||||||||
If none of the foregoing boxes are checked, then, so long as this Note shall bear a legend on the face thereof restricting resales and other transfers thereof (except in the case of a resale or other transfer made to the Company or to, by, through, or in a transaction approved by, an Agent), the Issuing and Paying Agent shall not be obligated to register this Note in the name of any person other than the undersigned Holder and until the conditions to any such transfer of registration set forth in this Note and in the Issuing and Paying Agency Agreement shall have been satisfied. | |||||||||||||||||||
Dated: | | ||||||||||||||||||
TO BE COMPLETED BY TRANSFEREE IF (a) ABOVE IS CHECKED: | |||||||||||||||||||
The undersigned transferee represents and warrants that (i) it is a "qualified institutional buyer", as defined in Rule 144A under the Securities Act of 1933, as amended, (ii) this instrument has been executed on behalf of the undersigned transferee by one of its executive officers and (iii) it is aware that the Holder of this Note is relying upon the undersigned transferee's foregoing representations in order to claim the exemption from registration provided by Rule 144A. The undersigned transferee acknowledges and agrees that this Note has not been registered under the Securities Act of 1933, as amended, and may not be transferred except in accordance with the resale and other transfer restrictions set forth in the legend on the face hereof. | |||||||||||||||||||
Dated: | | ||||||||||||||||||
TO BE COMPLETED BY TRANSFEREE | |||||||||||||||||||
The undersigned transferee represents and warrants that it is an institutional investor and an "accredited investor", as defined in Rule 501(a) under the Securities Act of 1933, as amended, and that this instrument has been executed on behalf of the undersigned transferee by one if its executive officers. The undersigned transferee undertakes to hold this Note acquired from the Holder hereof for its own account, or as a fiduciary or agent for others (which others are also institutional accredited investors, unless such transferee is a bank acting in its fiduciary capacity), for investment purposes and not for distribution, subject to any requirement of law that the disposition of the undersigned transferee's property shall at all times be and remain within its control. The undersigned acknowledges and agrees that this Note has not been registered under the Securities Act of 1933, as amended, and may not be transferred except in accord ance with the resale and other transfer restrictions set forth in the legend on the face hereof. | |||||||||||||||||||
Dated: | | ||||||||||||||||||
TO BE COMPLETED BY TRANSFEREE | |||||||||||||||||||
The undersigned transferee represents and warrants that it is an institutional investor and an "accredited investor", as defined in Rule 501(a) under the Securities Act of 1933, as amended, and that this instrument has been executed on behalf of the undersigned transferee by one of its executive officers. In addition, the undersigned transferee represents and warrants that it is not a U.S. person (as defined in Regulation S under the Securities Act of 1933, as amended) and it is acquiring this Note from the Holder hereof in an "offshore transaction" (as defined in Regulation S) pursuant to the exemption from registration under the Securities Act of 1933, as amended, provided by Regulation S thereunder. The undersigned transferee acknowledges and agrees that this Note has not been registered under the Securities Act of 1933, as amended, and may not be transferred except in accordance with the resale and other transfer restrictions set forth in the legend on the face hereof. | |||||||||||||||||||
Dated: | |
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10-K Filing
Conectiv (CIV) Inactive 10-K2002 FY Annual report
Filed: 23 Apr 03, 12:00am