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EXHIBIT 4-B
AMENDMENT TO THE AMENDED AND RESTATED TRUST
AGREEMENT
This AMENDMENT (the "AMENDMENT") is made as of July 6, 1999, by Israel J.
Floyd, Jan M. King, Stuart C. Shears (collectively, the "ADMINISTRATIVE
TRUSTEES"), The Chase Manhattan Bank, as Property Trustee ("Chase"), Hercules
Incorporated, a Delaware corporation (the "SPONSOR"), and by the Holders, from
time to time, of undivided beneficial interests in the assets of Hercules Trust
V (the "TRUST"), a business trust created pursuant to a Trust Agreement dated as
of October 14, 1998, as amended by the Amended and Restated Trust Agreement
dated as of November 12, 1998 (as amended, the "TRUST AGREEMENT").
WHEREAS, the Trustees and the Sponsor have established the Trust pursuant
to the Trust Agreement for the sole purpose of issuing and selling certain
securities representing undivided beneficial interests in the assets of the
Trust and investing the proceeds thereof in the Auction Rate Reset Junior
Subordinated Notes Series A (the "SUBORDINATED NOTES") and engaging in only
those activities necessary, advisable or incidental thereto;
WHEREAS, the Trust Agreement provides for the issuance of one class of
preferred securities representing undivided beneficial interests in the assets
of the Trust (the "PREFERRED SECURITIES") having such terms as are set forth in
Annex I thereto ("ANNEX I");
WHEREAS, the Trust Agreement and Annex I provide for amendment of the Trust
Agreement and the Preferred Securities, subject to satisfaction of certain
requirements;
WHEREAS, the parties hereto desire to modify certain provisions of the
Preferred Securities to reflect a modification in the manner of calculation in
the Distribution Rate on the Preferred Securities and to provide that no
Remarketing (as defined in the Trust Agreement) of the Preferred Securities
shall occur;
WHEREAS, this Amendment does not affect the rights, powers, duties,
obligations or immunities of the Property Trustee or of the Delaware Trustee;
WHEREAS, all things necessary to make this Amendment a valid amendment and
agreement according to its terms have been done;
NOW THEREFORE, in consideration of their mutual covenants contained herein
and in the Trust Agreement, the parties hereto, intending to be legally bound,
hereby mutually covenant and agree as follows:
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Article 1
Section 1.01. Application of Articles 1 and 2. The provisions of Article
One and Article Two hereof shall apply to the Preferred Securities and the
Common Securities and the certificates thereto shall be appropriately amended.
Section 1.02. Amendment of Distribution Rate Calculation on the Preferred
Securities. Section 2 of Annex I is hereby amended to read in its entirety as
follows:
"2. Distributions.
(a) Distributions with respect to the Liquidation Amount of
$1,000 per Security (the "LIQUIDATION AMOUNT") of each Security
will accrue and be payable at a rate (the "DISTRIBUTION RATE")
(such rate being the rate of interest payable on the Subordinated
Notes to be held by the Property Trustee) per annum, from and
including the date of issuance to but excluding the date such
Securities are redeemed, equal to LIBOR plus 175 basis points,
compounded quarterly; provided that, notwithstanding the
foregoing, if the Securities are not redeemed because the Sponsor
fails to pay the principal amount of the Subordinated Notes on
the date such amount becomes due, then from and including such
due date to but excluding the date the Securities are redeemed,
the Distribution Rate shall equal the Default Rate, compounded
quarterly, but only to the extent permitted by applicable law.
(b) Distributions that are not paid when due will bear
additional distributions thereon compounded quarterly at the
applicable periodic Distribution Rate specified above (to the
extent permitted by applicable law). Distributions are payable if
and to the extent the Subordinated Note Issuer makes a payment of
Additional Interest (as defined in the Indenture) upon the
occurrence of certain events specified in the Indenture. The term
"DISTRIBUTIONS", as used herein, includes any such additional
distributions unless otherwise stated. A Distribution is payable
only to the extent that payments are made in respect of the
Subordinated Notes held by the Property Trustee and to the extent
the Property Trustee has funds on hand legally available
therefor.
(c) Distributions on the Securities will be cumulative, will
be payable quarterly in arrears on February 12, May 12, August 12
and November 12 of each year, commencing February 12, 1999, and
on the Mandatory Redemption Date (each a "DISTRIBUTION Date"),
will accumulate from and including the most recent date to which
Distributions have been paid or, if no Distributions have been
paid, from November 12, 1998, to but excluding the related
Distribution Date, except as otherwise described below.
The Distribution Rate in effect for the period from and
including November 12, 1998 to but excluding February 12, 1999
shall be the rate determined by the Calculation Agent two London
Banking Days prior to November 12, 1998 and shall
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equal LIBOR plus 175 basis points. The Distribution Rate in
effect thereafter, for each quarterly period from and including
the immediately preceding Distribution Date to but excluding the
applicable Distribution Date, shall be determined by the
Calculation Agent two London Banking Days prior to such
immediately preceding Distribution Date and shall equal LIBOR
plus 175 basis points. The amount of Distributions payable for
any quarterly period shall be computed on the basis of year of
360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day). Except as
provided in the last sentence of this paragraph, the amount of
Distributions payable for any period shorter than a full
quarterly period for which Distributions are computed will be
computed on the basis of the actual number of days elapsed per
30-day month. If a Distribution Date is not a Business Day, then
such Distribution Date will be the next succeeding Business Day,
except if such Business Day is in the next succeeding calendar
month, such Distribution Date will be the immediately preceding
Business Day.
As used herein, "LONDON BANKING DAY" means any day on which
dealings in deposits in U.S. Dollars are transacted in the London
interbank market.
(d) Distributions on the Securities will be payable to the
Holders thereof as they appear on the books and records of the
Trust on the fifteenth day prior to each Distribution Date.
Subject to any applicable laws and regulations and the provisions
of the Agreement, each such payment in respect of the Preferred
Securities will be made in respect of any global certificate
representing Securities, to the Depository (or other applicable
Depository), which shall credit the relevant accounts at the
Depository (or such other Depository) on the applicable payment
dates, or in respect of Securities in certified form, by check
mailed to the address of the Holder entitled thereto as such
address shall appear on the register; provided, however, that at
the written request of any Holder of at least $10,000,000
aggregate Liquidation Amount of Preferred Securities received by
the Property Trustee not later than the fifteenth day prior to
the applicable Distribution Date, Distributions accrued on such
Preferred Securities will be payable by wire transfer within the
continental United States in immediately available funds to the
bank account number of such Holder specified in such request. The
relevant record dates for the Common Securities shall be the same
as the record dates for the Preferred Securities. Distributions
payable on any Securities that are not punctually paid on any
Distribution Date, as a result of the Subordinated Note Issuer
having failed to make a payment under the Subordinated Notes,
will cease to be payable to the Holder on the relevant record
date, and such defaulted Distributions will instead be payable to
the Person in whose name such Securities are registered on the
special record date or other specified date determined in
accordance with the Indenture.
(e) In the event that there is any money or other property
held by or for the Trust that is not accounted for hereunder,
such property shall be distributed Pro Rata (as defined herein)
among the Holders of the Securities."
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Section 1.03. Certain Definitions. Section 1.01 of the Trust Agreement is
hereby amended by deleting the definitions of "Pre-Remarketing Distribution
Date." Any and all remaining references to such term in the Trust Agreement
shall be deemed to refer to "DISTRIBUTION DATE."
Section 1.04. Amendment of Securities. The Holder of the Common Securities
and the Holder of the Preferred Securities (by signing separate consents to this
Amendment) agree to surrender the certificates representing the Securities to
the Property Trustee in exchange for new certificates reflecting the amended
terms provided for in this Amendment in the forms set forth as Exhibits A-1 and
A-2 attached hereto. Such replacement certificates shall be executed by an
Administrative Trustee, and authenticated and delivered by the Property Trustee
to such Holders upon surrender of the old certificates. The surrendered
certificates shall be canceled by the Property Trustee and shall no longer be
outstanding.
Article 2
Section 2.01. Elimination of Remarketing. (a) The definition of "Mandatory
Redemption Date" contained in Section 1.01 of the Trust Agreement is hereby
amended to read in its entirety as follows:
""MANDATORY REDEMPTION DATE" means the earlier to occur of: (i)
November 10, 1999 and (ii) the ninetieth day following the
issuance of the Sponsor of shares of Common Stock in a public
offering occurring after the date hereof, underwritten by Banc of
America Securities, LLC and generating gross proceeds from sales
to the public of not less than $150 million. The Sponsor shall
promptly notify the Trustees of an event specified in clause
(ii), specifying the date thereof."
(b) Section 4.03(e) of the Trust Agreement is hereby amended to
read in its entirety as follows:
"(e) to negotiate the terms of, execute, enter into, sign on
behalf of the Trust and deliver the Purchase Agreement, in the
form of Exhibit C, providing for the sale of the Preferred
Securities."
(c) Article 6 of the Trust Agreement is hereby amended by:
(i) inserting as the first section thereof the following new
Section 6.01A:
"Notwithstanding anything contained herein to the contrary,
no Remarketing shall occur, no Reset Settlement Date shall
be designated or shall occur and the Securities shall be
redeemed at the Mandatory
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Redemption Price on the Mandatory Redemption Price."
(ii) deleting each of Sections 6.02, 6.03, 6.04, 6.05, 6.06
and 6.07 in its entirety.
(d) The Trust Agreement is further amended by deleting Section 3
of Annex I in its entirety.
Article 3
Section 3.01. Ratification of the Trust Agreement; this Amendment. The
Trust Agreement is in all respects ratified and confirmed, and this Amendment
shall be deemed part of the Trust Agreement in the manner and to the extent
herein and therein provided. The provisions of this Amendment shall supersede
the provisions of the Trust Agreement to extent the Trust Agreement is
inconsistent herewith.
Section 3.02. Trustees Not Responsible for Recitals. The recitals herein
contained are made by the Sponsor and not by the Trustees, and the Trustees
assumes no responsibility for the correctness thereof. The Trustees make no
representation as to the validity or sufficiency of this Amendment.
Section 3.03. Governing Law. This Amendment and the rights of the parties
hereunder shall be governed by and construed in accordance with the laws of the
State of Delaware, and all rights and remedies shall be governed by such laws,
without regard to its principles of conflicts of laws.
Section 3.04. Severability. If any provision in the Trust Agreement or this
Amendment shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 3.05. Counterparts. The parties may sign any number of copies of
this Amendment. Each signed copy shall be an original, but all of them together
represent the same agreement. Any signed copy shall be sufficient proof of this
Amendment.
Section 3.06. Terms Defined. All terms defined elsewhere in the Trust
Agreement shall have the same meanings when used herein.
Section 3.07. Waiver of Tax Opinion.. The parties hereto (including the
Holder of the Preferred Securities by its separate consent to this Amendment)
waive the requirement set out in Section 8 of Annex I to the Trust Agreement for
a reasoned Opinion of Counsel of independent tax counsel.
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IN WITNESS WHEREOF, the parties have signed this Amendment as of the date
and year first above written.
/s/ Israel J. Floyd
-----------------------------------------
Israel J. Floyd, not in his individual
capacity but solely as
Administrative Trustee of the Trust
/s/ Jan M. King
-----------------------------------------
Jan M. King, not in her individual
capacity but solely as
Administrative Trustee of the Trust
/s/ Stuart C. Shears
-----------------------------------------
Stuart C. Shears, not in his individual
capacity but solely as
Administrative Trustee of the Trust
HERCULES INCORPORATED,
as Sponsor and Holder of the
Common Securities
By: /s/ George MacKenzie
--------------------------------------
Name: George MacKenzie
Title: Senior Vice President and Chief
Financial Officer
THE CHASE MANHATTAN BANK, not
in its individual capacity, but solely as
Property Trustee of the Trust
By: /s/ Joseph C. Progar
-------------------------------------
Name: Joseph C. Progar
Title: Authorized Officer
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EXHIBIT A-1
[FORM OF PREFERRED SECURITY CERTIFICATE]
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED UNDER THE U.S.
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND, ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING SENTENCE. BY ITS
ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2)
AGREES THAT IT WILL NOT PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE
TO SALES OF THE SECURITIES EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION) RESELL OR OTHERWISE TRANSFER THE
SECURITIES EVIDENCED HEREBY EXCEPT (A) TO HERCULES INCORPORATED OR ANY
SUBSIDIARY THEREOF OR (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH
RULE 144A UNDER THE SECURITIES ACT (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE SECURITIES EVIDENCED HEREBY ARE TRANSFERRED A NOTICE
SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND AND (4) AGREES, WITH RESPECT TO ANY
TRANSFER, TO PROVIDE TO THE PROPERTY TRUSTEE A DULY EXECUTED CERTIFICATE
SUBSTANTIALLY TO THE EFFECT OF CLAUSES (1), (2) AND (3), ABOVE. THIS LEGEND WILL
BE REMOVED AFTER THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO THE SALES OF
THE SECURITIES EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT.
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Certificate Number Number of Preferred Securities
- ------------------ ------------------------------
CUSIP NO. 427099 20 5
Certificate Evidencing Preferred Securities
of
HERCULES TRUST V
Auction Rate Reset Preferred Securities
(Liquidation Amount $1,000 per Preferred Security)
HERCULES TRUST V, a statutory business trust created under the laws of the
State of Delaware (the "TRUST"), hereby certifies that ______________ (the
"HOLDER") is the registered owner of __________ securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the Auction Reset Rate Preferred Securities (Liquidation Amount
$1,000 per Preferred Security) (the "PREFERRED SECURITIES"). This Preferred
Security is transferable on the books and records of the Trust, in person or by
a duly authorized attorney, upon surrender of this certificate duly endorsed and
in proper form for transfer. The designation, rights, privileges, restrictions,
preferences and other terms and provisions of the Preferred Securities
represented hereby are issued and shall in all respects be subject to the
provisions of the Amended and Restated Trust Agreement of the Trust dated as of
November 12, 1998, as the same may be amended from time to time, including the
designation of the terms of the Preferred Securities as set forth in Annex I to
the Agreement (the "AGREEMENT"). Capitalized terms used but not defined herein
shall have the meaning given them in the Agreement. The Sponsor will provide a
copy of the Agreement, the Preferred Securities Guarantee and the Indenture to a
Holder without charge upon written request to the Trust at its principal place
of business.
Upon receipt of this certificate, the Holder is bound by the Agreement and
is entitled to the benefits thereunder and to the benefits of the Preferred
Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal income
tax purposes, the Subordinated Notes as indebtedness and the Preferred
Securities as evidence of indirect beneficial ownership in the Subordinated
Notes.
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IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
___________, ____.
HERCULES TRUST V
By:
---------------------------
Name:
Title: Administrative Trustee
PROPERTY TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Preferred Securities referred to in the
within-mentioned Agreement.
Dated: __________, ____
THE CHASE MANHATTAN BANK,
as Property Trustee
By:
--------------------------
Authorized Signatory
A1-3
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[FORM OF REVERSE OF SECURITY]
Distributions with respect to the Liquidation Amount of $1,000 per
Preferred Security (the "LIQUIDATION AMOUNT") will accrue and be payable at a
rate (the "DISTRIBUTION RATE") (such rate being the rate of interest payable on
the Subordinated Notes to be held by the Property Trustee) per annum, from and
including the date of issuance to but excluding the date such Securities are
redeemed, equal to LIBOR plus 175 basis points, compounded quarterly; provided
that, notwithstanding the foregoing, if the Securities are not redeemed because
the Sponsor fails to pay the principal amount of the Subordinated Notes on the
date such amount becomes due, then from and including such due date to but
excluding the date the Securities are redeemed, the Distribution Rate shall
equal the Default Rate, compounded quarterly, but only to the extent permitted
by applicable law.
Distributions that are not paid when due will bear additional distributions
thereon compounded quarterly at the applicable periodic Distribution Rate
specified above (to the extent permitted by applicable law). Distributions are
payable if and to the extent the Subordinated Note Issuer makes a payment of
Additional Interest (as defined in the Indenture) upon the occurrence of certain
events specified in the Indenture. The term "DISTRIBUTIONS", as used herein,
includes any such additional distributions unless otherwise stated. A
Distribution is payable only to the extent that payments are made in respect of
the Subordinated Notes held by the Property Trustee and to the extent the
Property Trustee has funds on hand legally available therefor.
Distributions on this Preferred Security will be cumulative, will be
payable quarterly in arrears on February 12, May 12, August 12 and November 12
of each year, commencing February 12, 1999, and on the Mandatory Redemption Date
(each a "DISTRIBUTION DATE"), will accumulate from and including the most recent
date to which Distributions have been paid or, if no Distributions have been
paid, from November 12, 1998, to but excluding the related Distribution Date,
except as otherwise described below.
The Distribution Rate in effect for the period from and including November
12, 1998 to but excluding February 12, 1999 shall be the rate determined by the
Calculation Agent two London Banking Days prior to November 12, 1998 and shall
equal LIBOR plus 175 basis points. The Distribution Rate in effect thereafter,
for each quarterly period from and including the immediately preceding
Distribution Date to but excluding the applicable Distribution Date, shall be
determined by the Calculation Agent two London Banking Days prior to such
immediately preceding Distribution Date and shall equal LIBOR plus 175 basis
points. The amount of Distributions payable for any quarterly period shall be
computed on the basis of year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day). Except as provided
in the last sentence of this paragraph, the amount of Distributions payable for
any period shorter than a full quarterly period for which Distributions are
computed will be computed on the basis of the actual number of days elapsed per
30-day month. If a Distribution Date is not a Business Day, then such
Distribution Date will be the next succeeding Business Day, except if such
Business Day is in the
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next succeeding calendar month, such Distribution Date will be the immediately
preceding Business Day.
As used herein, "LONDON BANKING DAY" means any day on which dealings in
deposits in U.S. Dollars are transacted in the London interbank market.
Subject to other conditions set forth in the Agreement and the Indenture,
the Property Trustee may, at the direction of the Sponsor, at any time dissolve
the Trust and cause the Subordinated Notes to be distributed to the Holders of
the Securities in liquidation of the Trust or, simultaneously with any
redemption of the Subordinated Notes, cause a Like Amount of the Securities to
be redeemed by the Trust.
This Preferred Security shall be redeemable as provided in the Agreement.
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---------------------
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned assigns and transfers this Preferred
Security Certificate to:
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax identification number)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Insert address and zip code of assignee)
and irrevocably appoints
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
to transfer this Preferred Security Certificate on the books of the Trust. The
agent may substitute another to act for him or her.
Date:
------------------------
Signature:
-------------------
(Sign exactly as your name appears on the other side of this Preferred Security
Certificate)
Signature Guarantee(1):
--------------------------------------
- ---------------------
(1) Signature must be guaranteed by an "eligible guarantor institution" that is
a bank, stockbroker, savings and loan association or credit union meeting
the requirements of the Registrar, which requirements include membership or
participation in the Securities Transfer Agents Medallion Program ("STAMP")
or such other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in accordance
with the Securities and Exchange Act of 1934, as amended.
A1-6
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EXHIBIT A-2
[FORM OF COMMON SECURITY CERTIFICATE]
THIS CERTIFICATE IS NOT TRANSFERABLE EXCEPT IN COMPLIANCE WITH APPLICABLE LAW
AND THE PROVISIONS OF THE AMENDED AND RESTATED TRUST AGREEMENT OF HERCULES TRUST
V DATED AS OF NOVEMBER 12, 1998, AS AMENDED FROM TIME TO TIME.
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Certificate Number Number of Common Securities
- ------------------ 6,200
Certificate Evidencing Common Securities
of
HERCULES TRUST V
Auction Rate Reset Common Securities
(Liquidation Amount $1,000 per Common Security)
HERCULES TRUST V, a statutory business trust created under the laws of the
State of Delaware (the "TRUST"), hereby certifies that Hercules Incorporated
(the "HOLDER") is the registered owner of __________ securities of the Trust
representing undivided beneficial interests in the assets of the Trust
designated the Auction Rate Reset Common Securities (Liquidation Amount $1,000
per Common Security) (the "COMMON SECURITIES"). Except as set forth in the
Agreement (as defined herein), the Common Securities are not transferable. The
designation, rights, privileges, restrictions, preferences and other terms and
provisions of the Common Securities represented hereby are issued and shall in
all respects be subject to the provisions of the Amended and Restated Trust
Agreement of the Trust dated as of November 12, 1998, as the same may be amended
from time to time, including the designation of the terms of the Common
Securities as set forth in Annex I to the Agreement (the "AGREEMENT").
Capitalized terms used but not defined herein shall have the meaning given them
in the Agreement. The Sponsor will provide a copy of the Agreement, the Common
Securities Guarantee and the Indenture to a Holder without charge upon written
request to the Trust at its principal place of business.
Upon receipt of this certificate, the Holder is bound by the Agreement and
is entitled to the benefits thereunder and to the benefits of the Common
Securities Guarantee to the extent provided therein.
By acceptance, the Holder agrees to treat, for United States Federal income
tax purposes, the Subordinated Notes as indebtedness and the Common Securities
as evidence of indirect beneficial ownership in the Subordinated Notes.
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IN WITNESS WHEREOF, the Trust has executed this certificate this ___ day of
___________, ____.
HERCULES TRUST V
By:
-------------------------------
Name:
Title: Administrative Trustee
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[FORM OF REVERSE OF COMMON SECURITY]
Distributions with respect to the Liquidation Amount of $1,000 per common
Security (the "LIQUIDATION AMOUNT") will accrue and be payable at a rate (the
"DISTRIBUTION RATE") (such rate being the rate of interest payable on the
Subordinated Notes to be held by the Property Trustee) per annum, from and
including the date of issuance to but excluding the date such securities are
redeemed, equal to LIBOR plus 175 basis points, compounded quarterly; provided
that, notwithstanding the foregoing, if the securities are not redeemed because
the Sponsor fails to pay the principal amount of the Subordinated Notes on the
date such amount becomes due, then from and including such due date to but
excluding the date the Securities are redeemed, the Distribution Rate shall
equal the Default Rate, compounded quarterly, but only to the extent permitted
by applicable law.
Distributions that are not paid when due will bear additional distributions
thereon compounded quarterly at the applicable periodic Distribution Rate
specified above (to the extent permitted by applicable law). Distributions are
payable if and to the extent the Subordinated Note Issuer makes a payment of
Additional Interest (as defined in the indenture) upon the occurrence of certain
events specified in the indenture. The term "DISTRIBUTIONS", as used herein,
includes any such additional distributions unless otherwise stated. A
distribution is payable only to the extent that payments are made in respect of
The Subordinated Notes held by the Property Trustee and to the extent the
Property Trustee has funds on hand legally available therefor.
Distributions on this Common Security will be cumulative, will be payable
quarterly in arrears on February 12, May 12, August 12 and November 12 of each
year, commencing February 12, 1999, and on the Mandatory Redemption date (each a
"DISTRIBUTION DATE"), will accumulate from and including the most recent date to
which distributions have been paid or, if no Distributions have been paid, from
November 12, 1998, to but excluding the related Distribution Date, except as
otherwise described below.
The Distribution Rate in effect for the period from and including November
12, 1998 to but excluding February 12, 1999 shall be the rate determined by the
Calculation Agent two London Banking days prior to November 12, 1998 and shall
equal LIBOR plus 175 basis points. The Distribution Rate in effect thereafter,
for each quarterly period from and including the immediately preceding
Distribution Date to but excluding the applicable Distribution Date, shall be
determined by the Calculation Agent two London Banking days prior to such
immediately preceding Distribution Date and shall equal LIBOR plus 175 basis
points. The amount of Distributions payable for any quarterly period shall be
computed on the basis of year of 360 days and paid for the actual number of days
elapsed (including the first day but excluding the last day). Except as provided
in the last sentence of this paragraph, the amount of Distributions payable for
any period shorter than a full quarterly period for which Distributions are
computed will be computed on the basis of the actual number of days elapsed per
30-day month. If a Distribution Date is not a Business Day, then such
Distribution Date will be the next succeeding Business Day, except if such
Business Day is in the next succeeding calendar month, such Distribution Date
will be the immediately preceding Business Day.
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As used herein, "LONDON BANKING DAY" means any day on which dealings iN
deposits in U.S. Dollars are transacted in the london interbank market.
Subject to other conditions set forth in the Agreement and the Indenture,
the Property Trustee may, at the direction of the Sponsor, at any time dissolve
the Trust and cause the Subordinated Notes to be distributed to the Holders to
the Securities in liquidation of the Trust or, simultaneously with any
redemption of the Subordinated Notes, cause a Like Amount of the Securities to
be redeemed by the Trust.
This Common Security shall be redeemable as provided in the Agreement.
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