Exhibit 4(l)
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HAWAIIAN ELECTRIC INDUSTRIES, INC.
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Officers' Certificate Pursuant to
Sections 2.01 and 13.06 of the Indenture
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The undersigned hereby certify, pursuant to the Indenture for Junior
Subordinated Debentures, dated as of ____________, 1997 (the "Indenture"),
between Hawaiian Electric Industries, Inc., a Hawaii corporation (the
"Company"), and The Bank of New York, a New York banking corporation, as Trustee
(the "Trustee"), that:
A. There has been established pursuant to resolutions duly adopted by
the Board of Directors of the Company at its meeting held on December 19, 1996,
as supplemented by resolutions adopted by the Board of Directors at its meeting
held on January 21, 1997, a series of Debentures (as that term is defined in the
Indenture) to be issued under the Indenture, which Debentures shall be in the
form and shall include the Certificate of Authentication attached hereto and
shall have the following terms (capitalized terms defined in the Indenture but
not herein shall have the meanings given to such terms in the Indenture):
1. The title of the Debentures of the series is "Junior
Subordinated Debentures, Series A" (the "Series A Debentures");
2. The limit upon the aggregate principal amount of the Series A
Debentures which may be authenticated and delivered under this Indenture
(except for Debentures authenticated and delivered upon registration of
transfer of, or in exchange for, or in lieu of, other Debentures of that
series) is $103,000,000;
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3. The date on which the principal of each of the Series A
Debentures is payable shall be ______________, 2017 (the "Stated
Maturity");
4. Each Debenture will bear interest at the rate of _____% per
annum ("Interest Rate");
5. The principal of (and premium, if any) and interest on the
Series A Debentures shall be payable and the Series A Debentures shall be
surrendered for registration of transfer or exchange at the offices and
agencies of the Company maintained for that purpose in the Borough of
Manhattan, the City and State of New York, or at such other location or
locations selected by the Company, agreed to by the Trustee and consistent
with the Indenture. Payment of the principal (and premium, if any) and
interest due with respect to any Debenture at maturity will be made in
immediately available funds upon surrender of the Debenture at the place or
places provided hereinabove; provided that the Debenture is presented to
the Paying Agent in time for the Paying Agent to make such payments in such
funds in accordance with its normal procedures. Payments of interest other
than at maturity will be made at the place or places provided hereinabove;
provided that payment of interest on Debentures that are not registered to
a Hawaiian Electric Industries Capital Trust or the Partnership may be made
at the option of the Company by check mailed to the address of the Person
entitled thereto as it appears on the Debenture Register or by wire
transfer to an account appropriately designated by the Person entitled
thereto as it appears on the Debenture Register;
6. Interest shall accrue from the original date of issuance
until the principal thereof becomes due and payable, and on any overdue
principal and, to the extent that payment of such interest is enforceable
under applicable law, on any overdue installment of interest at the
Interest Rate, payable quarterly in arrears on March 31, June 30, September
30 and December 31 of each year (each, an "Interest Payment Date"),
commencing on March 31, 1997;
7. The Company shall have the right at any time during the term
of the Series A Debentures, from time to time, to extend the interest
payment period of
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such Debenture for up to six consecutive quarters (an "Extension Period"),
during which periods interest will compound quarterly and the Company shall
have the right to make partial payments of interest on any Interest Payment
Date, and at the end of which Extension Period the Company shall pay all
interest then accrued and unpaid (together with Additional Interest thereon
to the extent that payment of such interest is permitted by applicable
law). 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
thereof shall not exceed six consecutive quarters or extend beyond the
Stated Maturity of this Debenture. 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 foregoing requirements. No interest shall
be due and payable during an Extension Period except at the end thereof.
The Company shall give the holder of this Debenture and the Trustee written
notice of its selection of an Extension Period at least one Business Day
prior to the earlier of (i) the Interest Payment Date or (ii) the date
Hawaiian Electric Industries Capital Trust I is required to give notice to
the New York Stock Exchange or other applicable self-regulatory
organization or to holders of the Trust Preferred Securities of the record
date or the date such distributions are payable, but in any event not less
than one Business Day prior to such record date;
8. At any time on or after February ___, 2002, the Company shall
have the right to redeem the Series A Debentures, in whole or in part, from
time to time, at a redemption price equal to 100% of the principal amount
of Debentures to be redeemed plus accrued but unpaid interest, including
any Additional Interest, if any, to the redemption date. If, at any time, a
Partnership Tax Event or a Partnership Investment Company Event, each a
Partnership Special Event, shall occur and be continuing, the Company may,
within 90 days following the occurrence of such Partnership Special Event,
elect to redeem the Series A Debentures in whole (but not in part), upon
not less than 30 or more than 60 days' notice at the redemption price,
provided that, if at the time there is available
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to the Company or the Partnership the opportunity to eliminate, within such
90-day period, the Partnership Special Event by taking some ministerial
action, such as filing a form or making an election, or pursuing some other
similar reasonable such measure that in the sole judgment of the Company
has or will cause no adverse effect on the Partnership, the Trust or the
Company, the Company will pursue such measure in lieu of redemption;
For the purposes of this Certificate:
"Partnership Special Event" shall mean either a Partnership
Investment Company Event or a Partnership Tax Event;
"Partnership Investment Company Event", when used with respect to
the Series A Debentures that are held as trust assets of a Hawaiian
Electric Industries Capital Trust as to which a Security Exchange has not
theretofore occurred or as partnership assets of the Partnership, shall
mean that the General Partner shall have requested and received an opinion
of nationally recognized independent legal counsel experienced in such
matters to the effect that as a result of the occurrence, on or after the
date of the prospectus supplement relating to the Trust Preferred
Securities of such Hawaiian Electric Industries Capital Trust, of a change
in law or regulation or a 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
Partnership is or will be considered an "investment company" which is
required to be registered under the Investment Company Act of 1940;
"Partnership Tax Event" shall mean that the General Partner shall
have requested and received an opinion of nationally recognized independent
tax counsel experienced in such matters to the effect that there has been a
Tax Action resulting in there being more than an insubstantial risk that
(a) the Partnership is, or will be, subject to United States federal income
tax with respect to income accrued or received on the Affiliate Investment
Instruments or the Eligible Debt Securities (each as defined in the Limited
Partnership Agreement), (b) the Partnership is, or will be, subject to more
than a de minimus amount of other taxes, duties or other
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governmental charges, or (c) interest payable by one or more of the
obligors with respect to the Affiliate Investment Instruments to the
Partnership is not, or will not be, deductible by the Company for United
States federal income tax purposes;
"Tax Action", when used with respect to the Series A Debentures
that are held as trust assets of a Hawaiian Electric Industries Capital
Trust as to which a Security Exchange has not theretofore occurred or as
partnership assets of the Partnership, shall mean that there has been (a)
an amendment to, change in or announced proposed change in the laws (or any
regulations thereunder) of the United States or any political subdivision
or taxing authority thereof or therein, (b) a judicial decision
interpreting, applying or clarifying such laws or regulations, (c) an
administrative pronouncement or action that represents an official position
(including a clarification of any official position) of the governmental
authority or regulatory body making such administrative pronouncement or
taking such action, or (d) a threatened challenge asserted in connection
with an audit of the Company or any of its Subsidiaries, the Partnership,
or the Trust, or a threatened challenge asserted in writing in connection
with any other taxpayer that has raised capital through the issuance of
securities that are substantially similar to the Series A Debentures, the
Partnership Preferred Securities, or the Trust Preferred Securities, which
amendment or change is adopted or which decision or pronouncement is
announced or which action, clarification or challenge occurs on or after
the date of the prospectus supplement relating to the Trust Preferred
Securities of such Hawaiian Electric Industries Capital Trust;
9. There is no obligation of the Company to redeem or purchase
the Series A Debentures pursuant to any sinking fund or analogous
provision, or at the option of the holder thereof;
10. The form of Series A Debenture, including the form of
Certificate of Authentication, is attached hereto;
11. The Series A Debentures shall be issued in denominations of
$25 or any integral multiple thereof;
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12. The Series A Debentures will not be issued as a Global
Debenture and there shall not be a Depository for any Global Debenture for
the Series A Debentures;
13. The Series A Debentures will not be deposited as trust assets
in a Hawaiian Electric Industries Capital Trust;
14. The Series A Debentures will be deposited as partnership
assets in HEI Preferred Funding, LP, a limited partnership created by the
Agreement of Limited Partnership dated as of December 23, 1996, as amended,
modified or otherwise supplemented from time to time;
15. The Series A Debentures will not be sold to Persons who are
not directly or indirectly owned or controlled by the Company and who are
not Affiliates of the Company; and
16. In case of any conflict between this certificate and the
Series A Debentures in the form attached hereto, or between the above-
mentioned Board resolutions and the Series A Debentures in such forms, the
Series A Debentures shall control.
B. Each of the undersigned has read the Indenture, including the
provisions of Sections 2.01 and 13.06 and the definitions relating thereto, and
the resolutions adopted by the Board of Directors of the Company referred to
above. In the opinion of each of the undersigned, he or she has made such
examination or investigation as is necessary to enable him or her to express an
informed opinion as to whether or not all conditions precedent provided in the
Indenture relating to the establishment of the title and terms of a series of
Debentures under the Indenture, designated as the Series A Debentures in this
Officers' Certificate, and to the authentication and delivery by the Trustee of
such Debentures, have been complied with. In the opinion of the undersigned, all
such conditions precedent have been complied with.
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IN WITNESS WHEREOF, the undersigned has hereunto executed this Officers'
Certificate as of the ____ day of __________, 1997.
________________________________
Name:
Title:
________________________________
Name:
Title:
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(FORM OF FACE OF DEBENTURE)
No. __________
HAWAIIAN ELECTRIC INDUSTRIES, INC.
______% JUNIOR SUBORDINATED DEBENTURE, SERIES A
DUE 2017
$_____________ PRINCIPAL AMOUNT
HAWAIIAN ELECTRIC INDUSTRIES, INC., a Hawaii corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _________________ or
registered assigns, the principal sum of ___________________ Dollars
($___________) on _________, _____ (the "Stated Maturity"), and to pay interest
on said principal sum from the original date of issuance or from the most recent
interest payment date (each such date, an "Interest Payment Date") to which
interest has been paid or duly provided for, quarterly (subject to deferral as
set forth herein) in arrears on March 31, June 30, September 30 and December 31
of each year commencing March 31, 1997, at the rate of ______% per annum, plus
Additional Interest, if any, until the principal hereof shall have become due
and payable, and on any overdue principal and premium, if any. The amount of
interest payable on any Interest Payment Date shall be computed on the basis of
a 360-day year of twelve 30-day months. For any period shorter than a full 90-
day quarter, interest will be computed on the basis of the actual number of days
elapsed in such 90-day quarter. In the event that any date on which interest
is payable on this Debenture is not a Business Day, then payment of 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 such date. The interest
installment so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the person
in whose name this Debenture (or one or more Predecessor Debentures, as defined
in said Indenture) is registered at the close of
business on the regular record date for such interest installment.
Any interest on this Debenture which is payable, but is not punctually paid
or duly provided for, on any Interest Payment Date for Debentures of the same
series (herein called "Defaulted Interest") shall forthwith cease to be payable
to the registered holder on the relevant regular record date by virtue of having
been such holder; and such Defaulted Interest shall be paid by the Company, at
its election, as provided in clause (1) or clause (2) below:
(1) The Company may make payment of any Defaulted Interest on this
Debenture to the person or persons in whose names this Debenture (or one or
more Predecessor Debentures) are registered at the close of business on a
special record date for the payment of such Defaulted Interest, which shall
be fixed in the following manner: the Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid on this
Debenture and the date of the proposed payment, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such deposit
prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the persons entitled to such Defaulted
Interest as in this clause provided. Thereupon the Trustee shall fix a
special record date for the payment of such Defaulted Interest which shall
not be more than 15 nor less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of the
notice of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense of
the Company, shall cause notice of the proposed payment of such Defaulted
Interest and the special record date therefor to be mailed, first class
postage prepaid, to each Debentureholder at his or her address as it
appears in the Debenture Register, not less than 10 days prior to such
special record date. Notice of the proposed payment of such Defaulted
Interest and the special record date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the person or persons
in whose names this Debenture (or one or more Predecessor Debentures) is
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registered on such special record date and shall be no longer payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on this
Debenture in any other lawful manner not inconsistent with the requirements
of any Securities Exchange on which this Debenture may be listed, and upon
such notice as may be required by such exchange, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
The Company shall have the right at any time during the term of this
Debenture, from time to time, to extend the interest payment period of this
Debenture for up to six consecutive quarters (an "Extension Period"), during
which periods interest will compound quarterly and the Company shall have the
right to make partial payments of interest on any Interest Payment Date, and at
the end of which Extension Period the Company shall pay all interest then
accrued and unpaid (together with Additional Interest thereon to the extent that
payment of such interest is permitted by applicable law). 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 thereof shall not exceed six consecutive
quarters or extend beyond the Stated Maturity of this Debenture. 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 foregoing requirements. No interest shall
be due and payable during an Extension Period except at the end thereof. The
Company shall give the holder of this Debenture and the Trustee written notice
of its selection of an Extension Period at least one Business Day prior to the
earlier of (i) the Interest Payment Date or (ii) the date Hawaiian Electric
Industries Capital Trust I is required to give notice to the New York Stock
Exchange or other applicable self-regulatory organization or to holders of the
Trust Preferred Securities of the record date or the date such distributions are
payable, but in any event not less than one Business Day prior to such record
date.
The principal of (and premium, if any) and interest on this Debenture shall
be payable and this Debenture shall be surrendered for registration of transfer
or exchange at
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the offices and agencies of the Company maintained for that purpose in the
Borough of Manhattan, the City and State of New York, or at such other location
or locations selected by the Company, agreed to by the Trustee and consistent
with the Indenture. Payment of the principal (and premium, if any) and interest
due with respect to any Debenture at maturity will be made in immediately
available funds upon surrender of the Debenture at the place or places provided
hereinabove; provided that this Debenture is presented to the Paying Agent in
time for the Paying Agent to make such payments in such funds in accordance with
its normal procedures. Payments of interest other than at maturity will be made
at the place or places provided hereinabove; provided that payment of interest
on this Debenture if not registered to a Hawaiian Electric Industries Capital
Trust or the Partnership may be made at the option of the Company by check
mailed to the address of the Person entitled thereto as it appears on the
Debenture Register or by wire transfer to an account appropriately designated by
the Person entitled thereto as it appears on the Debenture Register.
The indebtedness evidenced by this Debenture is, to the extent provided in
the Indenture, subordinate and junior in right of payment to the prior payment
in full of all Senior Indebtedness, and this Debenture is issued subject to the
provisions of the Indenture with respect thereto. Each holder of this Debenture,
by accepting the same, (a) agrees to and shall be bound by such provisions, (b)
authorizes and directs the Trustee on his or her behalf to take such action as
may be necessary or appropriate to acknowledge or effectuate the subordination
so provided and (c) appoints the Trustee his or her attorney-in-fact for any and
all such purposes. Each holder hereof, by his or her acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such holder upon
said provisions.
This Debenture shall not be entitled to any benefit under the Indenture
hereinafter referred to, be valid or become obligatory for any purpose until the
Certificate of Authentication hereon shall have been signed by or on behalf of
the Trustee by manual signature.
The provisions of this Debenture are continued on the reverse side hereof
and such continued provisions shall
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for all purposes have the same effect as though fully set forth at this place.
IN WITNESS WHEREOF, the Company has caused this instrument to be executed.
Dated: HAWAIIAN ELECTRIC INDUSTRIES, INC.
By:
__________________________
Name:
Title:
By:
__________________________
Name:
Title:
Attest:
By:
__________________________
Name:
Title:
(FORM OF REVERSE OF DEBENTURE)
This Debenture is one of a duly authorized series of Debenture of the
Company (herein sometimes referred to as the "Debenture"), limited in aggregate
principal amount to $103,000,000, all issued or to be issued in one or more
series under and pursuant to an Indenture dated as of _______________ (the
"Indenture") duly executed and delivered between the Company and The Bank of New
York, as Trustee (the "Trustee", which term includes any successor trustee under
the Indenture), and pursuant to an Officers' Certificate dated as of
________________, (the "Officers' Certificate") duly executed by ______________,
________________, and ________________, ____________________, of the Company, to
which Indenture and said Officers' Certificate thereto reference is hereby made
for a description of the rights, limitations of rights,
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obligations, duties and immunities thereunder of the Trustee, the Company and
the holders of the Debentures and of the terms upon which the Debentures are,
and are to be, authenticated and delivered. By the terms of the Indenture, the
Debentures are issuable in series that may vary as to amount, date of maturity,
rate of interest and in other respects as provided in the Indenture.
At any time on or after February ___, 2002, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, at a
redemption price equal to 100% of the principal amount of Debentures to be
redeemed plus accrued but unpaid interest, including any Additional Interest, if
any, to the redemption date.
If, at any time, a Partnership Tax Event or a Partnership Investment
Company Event, each a Partnership Special Event, shall occur and be continuing,
the Company may, within 90 days following the occurrence of such Partnership
Special Event, elect to redeem the Debentures in whole (but not in part), upon
not less than 30 or more than 60 days' notice at the redemption price, provided
that, if at the time there is available to the Company or the Partnership the
opportunity to eliminate, within such 90-day period, the Partnership Special
Event by taking some ministerial action, such as filing a form or making an
election, or pursuing some other similar reasonable such measure that in the
sole judgment of the Company has or will cause no adverse effect on the
Partnership, the Trust or the Company, the Company will pursue such measure in
lieu of redemption.
For the purposes of this Debenture:
"Partnership Special Event" shall mean either a Partnership Investment
Company Event or a Partnership Tax Event;
"Partnership Investment Company Event", if this Debenture is held as trust
assets of a Hawaiian Electric Industries Capital Trust as to which a Security
Exchange has not theretofore occurred or as partnership assets of the
Partnership, shall mean that the General Partner shall have requested and
received an opinion of nationally recognized independent legal counsel
experienced in such matters to the effect that as a result of the occurrence, on
or after the date of the prospectus supplement relating to the Trust Preferred
Securities of such Hawaiian Electric Industries
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Capital Trust, of a change in law or regulation or a 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 Partnership is or will be considered an "investment company" which is
required to be registered under the Investment Company Act of 1940;
"Partnership Tax Event" shall mean that the General Partner shall have
requested and received an opinion of nationally recognized independent tax
counsel experienced in such matters to the effect that there has been a Tax
Action resulting in there being more than an insubstantial risk that (a) the
Partnership is, or will be, subject to United States federal income tax with
respect to income accrued or received on the Affiliate Investment Instruments or
the Eligible Debt Securities (each as defined in the Limited Partnership
Agreement), (b) the Partnership is, or will be, subject to more than a de
minimus amount of other taxes, duties or other governmental charges, or (c)
interest payable by one or more of the obligors with respect to the Affiliate
Investment Instruments to the Partnership is not, or will not be, deductible by
the Company for United States federal income tax purposes; and
"Tax Action", if this Debenture is held as trust assets of a Hawaiian
Electric Industries Capital Trust as to which a Security Exchange has not
theretofore occurred or as partnership assets of the Partnership, shall mean
that there has been (a) an amendment to, change in or announced proposed change
in the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein, (b) a judicial
decision interpreting, applying or clarifying such laws or regulations, (c) an
administrative pronouncement or action that represents an official position
(including a clarification of any official position) of the governmental
authority or regulatory body making such administrative pronouncement or taking
such action, or (d) a threatened challenge asserted in connection with an audit
of the Company or any of its Subsidiaries, the Partnership, or the Trust, or a
threatened challenge asserted in writing in connection with any other taxpayer
that has raised capital through the issuance of securities that are
substantially similar to the Debentures, the Partnership Preferred Securities,
or the Trust Preferred Securities, which amendment or change is adopted or which
decision or pronouncement is announced or
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which action, clarification or challenge occurs on or after the date of the
prospectus supplement relating to the Trust Preferred Securities of such
Hawaiian Electric Industries Capital Trust.
In the event of redemption of this Debenture in part only, a new Debenture
or Debentures for the unredeemed portion hereof will be issued in the name of
the holder hereof upon the cancellation hereof.
In case an Event of Default with respect to this series of Debentures, as
defined in the Indenture, shall have occurred and be continuing, the principal
of all of the Debentures may be declared, and upon such declaration shall
become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions for satisfaction and discharge at any
time of the entire indebtedness of this Debenture upon compliance by the Company
with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the Debentures of each series affected at the time
outstanding, as defined in the Indenture, to modify the Indenture in a manner
affecting the rights of the holders of the Debentures; provided, however, that
no such modification may, without the consent of the holder of each outstanding
Debenture (and, in the case of any series of Debentures held as trust assets of
a Hawaiian Electric Industries Capital Trust as to which a Security Exchange has
not theretofore occurred or as partnership assets of the Partnership, such
consent of the holders of the Trust Preferred Securities and the Trust Common
Securities of such Hawaiian Electric Industries Capital Trust as may be required
under the Trust Agreement of such Hawaiian Electric Industries Capital Trust),
(i) extend the fixed maturity of any Debentures of any series, or reduce the
principal amount thereof (including in the case of a discounted Debenture the
amount payable thereon in the event of acceleration or the amount provable in
bankruptcy) or any premium thereon, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable upon the redemption
thereof, or make the principal of or interest or premium, if any, on the
Debentures payable in any coin or currency other than that provided in the
Debentures,
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or impair or affect the right of any Debentureholder to institute suit for the
payment thereof or the right of prepayment, if any, at the option of the
Debentureholder, (ii) reduce the aforesaid percentage of Debentures, the holders
of which are required to consent to any such modification, or (iii) otherwise
adversely affect the interest of the holders of any series of Debentures.
No reference herein to the Indenture and no provision of this Debenture or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Debenture at the time and place and at the rate and in the
currency herein prescribed, in accordance with the terms of the Indenture, this
Debenture and the Officers' Certificate.
As provided in the Indenture and subject to certain limitations therein set
forth, this Debenture is transferable by the registered holder hereof on the
Debenture Register of the Company, upon surrender of this Debenture for
registration of transfer at the office or agency provided by the Company for
that purpose accompanied by a written instrument or instruments of transfer in
form satisfactory to the Company or the Trustee duly executed by the registered
holder hereof or his attorney duly authorized in writing, and thereupon one or
more new Debentures of authorized denominations and for the same aggregate
principal amount and series will be issued to the designated transferee or
transferees. No service charge will be made for any such transfer, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge payable in relation thereto, subject to certain limitations
set forth in the Indenture.
Prior to due presentment for registration of transfer of this Debenture,
the Company, the Trustee, any Paying Agent and the Debenture Registrar may deem
and treat the registered holder hereof as the absolute owner hereof (whether or
not this Debenture shall be overdue and notwithstanding any notice of ownership
or writing hereon made by anyone other than the Debenture Registrar) for the
purpose of receiving payment of or on account of the principal hereof and
premium, if any, and interest due hereon and for all other purposes, and neither
the Company nor the Trustee nor any paying agent nor any Debenture Registrar
shall be affected by any notice to the contrary.
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No recourse shall be had for the payment of the principal of or the
interest on this Debenture, or for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture, against any
incorporator, stockholder, officer or director, past, present or future, as
such, of the Company or of any predecessor or successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the acceptance
hereof and as part of the consideration for the issuance hereof, expressly
waived and released.
The Debentures 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 herein and therein set
forth, Debentures of this series so issued are exchangeable for a like aggregate
principal amount of Debentures of this series of a different authorized
denomination, as requested by the holder surrendering the same.
All terms used in this Debenture that are defined in the Indenture and the
Officers' Certificate shall have the meanings assigned to them in the Indenture
and the Officers' Certificate.
THIS DEBENTURE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
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(FORM OF CERTIFICATE OF AUTHENTICATION)
CERTIFICATE OF AUTHENTICATION
This is one of the Debentures of the series designated herein referred to
in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By:
__________________________
Authorized Officer