Exhibit 4(g)
MIDAMERICAN ENERGY COMPANY
TO
THE FIRST NATIONAL BANK OF CHICAGO,
AS TRUSTEE
___________________
______ SUPPLEMENTAL INDENTURE
Dated as of ___________, ____
TO
INDENTURE
Dated as of ___________, ____
___________________
_____% Deferrable Interest Subordinated
Debentures, Series [ ] Due ____
______ SUPPLEMENTAL INDENTURE, dated as of __________, ____ (the
"______ Supplemental Indenture"), between MidAmerican Energy Company, an Iowa
corporation (the "Company"), and The First National Bank of Chicago, as trustee
(the "Trustee") under the Indenture dated as of ___________, 199_, from the
Company to the Trustee (the "Indenture").
WHEREAS, the Company has executed and delivered the Indenture to the
Trustee in order to provide for the future issuance of its subordinated
debentures (the "Securities"), such Securities to be issued from time to time in
one or more series as may be determined by the Company under the Indenture, in
an unlimited aggregate principal amount that may be authenticated and delivered
thereunder as provided in the Indenture;
WHEREAS, MidAmerican Energy Financing [I][II] (the "Series [ ] Trust")
may pursuant to the Underwriting Agreement dated _________, 199_ among the
Company, the Series [ ] Trust and the Underwriters named therein issue
$_________ aggregate liquidation amount of its ___% cumulative quarterly income
preferred securities, Series [ ] (the "Series [ ] Preferred Securities") with a
liquidation amount of $25 per Series [ ] Preferred Security;
WHEREAS, the Company is guaranteeing (the "Parent Guarantee") the
payment of distributions on the Series [ ] Preferred Securities, the payment of
the redemption price and the payment on liquidation with respect to the Series [
] Preferred Securities, to the extent provided in the Guarantee Agreement of
even date herewith between the Company and The First National Bank of Chicago,
as guarantee trustee for the benefit of the holders of the Series [ ] Preferred
Securities;
WHEREAS, the Company wishes to sell to the Series [ ] Trust, and the
Series [ ] Trust wishes to purchase from the Company, Series [ ] Securities (as
defined below) in an aggregate principal amount equal to $_________, and in
satisfaction of the purchase price for such Series [ ] Securities, the
Administrative Trustees of the Series [ ] Trust, on behalf of the Series [ ]
Trust, wish to (i) execute and deliver to the Company Common Securities
certificates representing Common Securities of the Series [ ] Trust, registered
in the name of the Company, having an aggregate liquidation amount of $_________
(the "Series [ ] Common Securities") and (ii) deliver to the Company the sum of
$___________;
WHEREAS, the Company has duly authorized the creation of an issue of
its _____% Deferrable Interest Subordinated Debentures, Series [ ] (the "Series
[ ] Securities"), of the tenor and amount hereinafter set forth, and to provide
therefor
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the Company has duly authorized the execution and delivery of this ______
Supplemental Indenture; and
WHEREAS, all things necessary to make the Securities, when executed by
the Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this ______
Supplemental Indenture a valid agreement of the Company, each in accordance with
their terms, have been done; and
WHEREAS, capitalized terms used herein without definition shall have
the meanings specified in the Indenture.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Series [ ]
Securities by the Holders thereof, it is mutually agreed, for the equal and
proportionate benefit of all Holders of the Series [ ] Securities as follows:
ARTICLE ONE
GENERAL TERMS OF THE SERIES [ ] SECURITIES
SECTION 101. Title; Stated Maturity; Interest.
The aggregate principal amount of Securities which may be
authenticated and delivered under this ______ Supplemental Indenture is limited
to $__________ at any time Outstanding; provided, however, that such amount may
be increased by a Board Resolution to that effect.
The Securities shall be known and designated as the "____% Deferrable
Interest Subordinated Debentures, Series [ ]" of the Company. The principal
amount of the Series [ ] Securities (together with any accrued and unpaid
interest thereon) shall be payable in a single installment on __________, ____;
PROVIDED, that the Company may (i) change the Maturity Date upon the occurrence
of an exchange of the Series [ ] Securities for the Series [ ] Preferred
Securities subject to certain conditions set forth in Section 314 of the
Indenture, which changed Maturity Date shall in no case be earlier than
__________, ____ or later than __________, ____ and (ii) extend the Maturity
Date subject to certain conditions specified in Section 314 of the Indenture,
which extended Maturity Date shall
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in no case be later than __________, _____. The Series [ ] Securities shall
bear interest at the rate of ____% per annum, from _________, ____, or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, as the case may be, payable quarterly (subject to deferral as set
forth herein), in arrears, on the first day of March, June, September and
December of each year, commencing _________, ____. The amount of interest
payable for any such period will be computed on the basis of a 360-day year of
twelve 30-day months and for any period shorter than a full month, on the basis
of the actual number of days elapsed in such period. In the event that any
Interest Payment Date is not a Business Day, then payment of interest payable on
such date will be made on the next succeeding day which 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 Interest
Payment Date shall be the immediately preceding Business Day, in each case with
the same force and effect as if made on such Interest Payment Date. Any
interest installment in arrears or deferred during an extension of an Interest
Payment Period as set forth below will bear interest at the rate of __% per
annum, compounded quarterly (to the extent permitted by applicable law).
Each installment of interest on a Series [ ] Security shall be
payable to the Person in whose name such Series [ ] Security is registered at
the close of business on the Business Day 15 days preceding the corresponding
Interest Payment Date (the "Regular Record Date") for the Series [ ]
Securities; provided, however, that if the Series [ ] Securities are held
neither by the Series [ ] Trust nor by a securities depositary, the Company
shall have the right to change the Regular Record Date by one or more Officer's
Certificates. Any installment of interest on the Series [ ] Securities not
punctually paid or duly provided for shall forthwith cease to be payable to the
Holders of such Series [ ] Securities on such Regular Record Date, and may be
paid to the Persons in whose name the Series [ ] Securities are registered at
the close of business on a Special Record Date to be fixed by the Trustee for
the payment of such Defaulted Interest. Notice of such Defaulted Interest and
Special Record Date shall be given to the Holders of the Series
[ ] Securities not less than 10 days prior to such Special Record Date, or may
be paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Series [ ] Securities may
be listed, and upon such notice as may be required by such exchange, all as more
fully provided in the Indenture.
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The Company shall have the right, at any time during the term of the
Series [ ] Securities, from time to time to extend the interest payment period
thereon for up to 20 consecutive quarters (the "Extension Period") during which
period interest will compound quarterly and the Company shall have the right to
make partial payments of interest on any Interest Payment Date; provided that no
Extension Period may extend beyond the Maturity Date of the Securities and
provided further that the Company shall not defer the interest payment period
with respect to Additional Interest Attributable to Taxes and shall make payment
thereof on the relevant Interest Payment Date. At the end of the Extension
Period, the Company shall pay all interest then accrued and unpaid thereon
(together with additional interest thereon at the rate of __% per annum,
compounded quarterly, to the extent permitted by applicable law). During any
such Extension Period the Company will not, and will not permit any subsidiary
of the Company to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Company's outstanding capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company (including other Securities) that rank PARI PASSU with
or junior in interest to the Series [ ] Securities or make any guarantee
payments with respect to any guarantee by the Company of the debt securities of
any subsidiary of the Company if such guarantee ranks PARI PASSU or junior in
interest to the Series [ ] Securities (other than (a) dividends or
distributions in common stock of the Company, (b) payments under any Guarantee,
and (c) purchases of common stock related to the issuance of common stock under
any of the Company's benefit plans for its directors, officers or employees).
Prior to the termination of any such Extension Period, the Company may further
extend the interest payment period, PROVIDED that no Extension Period shall
exceed 20 consecutive quarters or extend beyond the Maturity Date of the Series
[ ] Securities. Upon the termination of any Extension Period and upon the
payment of all amounts then due, the Company may select a new Extension Period,
subject to the foregoing requirements. Except for Additional Interest
Attributable to Taxes, no interest shall be due and payable during an Extension
Period, except at the end thereof. The Company shall give the Trustee and, if
any Series [ ] Preferred Securities are Outstanding, the Administrative
Trustees of the Series [ ] Trust notice of its election of an Extension Period
no less than 15 Business Days prior to the later of (i) the Regular Record Date
next preceding the first Interest Payment Date on which a distribution would
occur but for such election and (ii) five Business Days prior to such Interest
Payment Date. Upon
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receipt of any such notice, the Trustee shall give written notice of the
Company's election by mail to the Holders of the Series
[ ] Securities not less than 10 Business Days prior to such Interest Payment
Date. The Company also shall make a public announcement of such election in
accordance with New York Stock Exchange Rules not less than five Business Days
prior to such Regular Record Date.
The principal of and interest on the Series [ ] Securities shall be
payable at, and registration and registration of transfers of the Series [ ]
Securities may be effected at, the office or agency of the Company in
______________________; provided, however, that, at the option of the Company,
payment of interest may be made (i) by check mailed to the address of the
Persons entitled thereto under the Indenture or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto under the Indenture; provided further,
that for so long as any Series [ ] Security is registered in the name of the
Property Trustee of the Series [ ] Trust, payment of principal (including
Redemption Price and interest) shall be made by wire transfer in immediately
available funds at such place and to such account as may be designated by the
Property Trustee of the Series [ ] Trust. The Trustee will initially be the
agent of the Company for such service of notices and demands; provided,
however, that the Company reserves the right to change, by one or more Officer's
Certificates, any such office or agent. The Company will be the Security
Registrar and the Paying Agent for the Series [ ] Securities.
The Series [ ] Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Fifteen of the Indenture. The Series
[ ] Securities shall be pari passu with the Parent Guarantee.
The Series [ ] Securities shall be redeemable as provided in Section
102 below and in Article Four of the Indenture.
SECTION 102. Redemption.
At any time on or after _____________, the Company shall have the
right to redeem the Series [ ] Securities, in whole or, subject to the last
paragraph of this Section 102, in part, from time to time, at a Redemption Price
equal to 100% of the principal amount of Series [ ] Securities to be redeemed
plus accrued but unpaid interest, including any Additional Interest Attributable
to Taxes, if any, to the Redemption Date.
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If a Special Event shall occur and be continuing, the Company shall
have the right to redeem the Series [ ] Securities within 90 days of the
occurrence of such Special Event in whole but not in part, at a Redemption
Price equal to 100% of the principal amount thereof plus accrued but unpaid
interest, including Additional Interest Attributable to Taxes, if any, to the
Redemption Date.
The Series [ ] Securities will also be redeemable, in whole but not
in part, at the option of the Company upon the termination and liquidation of
the Series [ ] Trust pursuant to an order for the dissolution, termination or
liquidation of the Series [ ] Trust entered by a court of competent
jurisdiction at a Redemption Price equal to 100% of the principal amount of the
Series [ ] Securities then Outstanding plus any accrued and unpaid interest,
including Additional Interest Attributable to Taxes, if any, to the Redemption
Date.
"Special Event" means a Tax Event or an Investment Company Event.
"Tax Event" means the receipt by the Series [ ] Trust of an opinion
of counsel (which may be counsel to the Company or an affiliate but not an
employee thereof and which must be acceptable to the Property Trustee of the
Series [ ] Trust) experienced in such matters to the effect that, as a result
of (a) any amendment to, or change (including any announced prospective change)
in, the laws (or any regulations thereunder) of the United States or any
political subdivision or taxing authority thereof or therein affecting taxation,
or (b) any amendment to, or change in an interpretation or application of, such
laws or regulations by any legislative body, court, governmental agency or
regulatory authority (including the enactment of any legislation and the
publication of any judicial decision or regulatory determination on or after the
date of issuance of the Series [ ] Preferred Securities), there is more than an
insubstantial risk that (i) the Series [ ] Trust is, or will be within 90 days
of the date of such opinion, subject to United States federal income tax with
respect to interest income received or accrued on the Series [ ] Securities,
(ii) interest payable by the Company on the Series [ ] Securities is not, or
within 90 days of the date of such opinion, will not be, deductible by the
Company, in whole or in part, for United States federal income tax purposes, or
(iii) the Series [ ] Trust is, or will be within 90 days of the date of such
opinion, subject to more than a de minimis amount of other taxes, duties or
other governmental charges.
"Investment Company Event" means the occurrence of a change in law or
regulation or a change in interpretation or application of law or regulation by
any legislative body, court,
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governmental agency or regulatory authority to the effect that the Series [ ]
Trust is or will be considered an "investment company" that is required to be
registered under the Investment Company Act of 1940, as amended, which change in
law becomes effective on or after the date of original issuance of the Series
[ ] Preferred Securities.
The Company shall not redeem the Series [ ] Securities in part unless
all accrued and unpaid interest (including any Additional Interest Attributable
to Taxes) has been paid in full on all Series [ ] Securities Outstanding for all
quarterly interest periods terminating on or prior to the Redemption Date or if
a partial redemption of the Series [ ] Preferred Securities would result in a
delisting of such securities by any national securities exchange on which they
are then listed.
SECTION 103. Global Security.
In the event that, at any time subsequent to the initial
authentication and delivery of the Series [ ] Securities, the Series [ ]
Securities are to be held by a securities depositary, the Company may at such
time establish the matters contemplated in clause (r) in the second paragraph of
Section 301 of the Indenture in an Officer's Certificate supplemental to this
Supplemental Indenture.
SECTION 104. Exchange.
At any time, the Company may terminate the Series [ ] Trust and cause
the Series [ ] Securities to be distributed to holders of the Series [ ]
Preferred Securities and Series [ ] Common Securities in liquidation of the
Series [ ] Trust.
SECTION 105. Registration of Transfer or Exchange.
No service charge shall be made for the registration of transfer or
exchange of the Series [ ] Securities; provided, however, that the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in connection with the exchange or transfer.
SECTION 106. Form of Series [ ] Security.
Series [ ] Securities shall have such other terms and provisions as
are provided in the form set forth in Exhibit A hereto, and shall be issued in
substantially such form.
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SECTION 107. Listing.
In the event that the Series [ ] Securities are distributed to
holders of the Preferred Securities as a result of the termination of Series
[ ] Trust, the Company will use its best efforts to list the Series [ ]
Securities on the New York Stock Exchange or on such other exchange as the
Series [ ] Preferred Securities are then listed.
ARTICLE TWO
MISCELLANEOUS PROVISIONS
SECTION 201. Definitions of Terms.
Except as otherwise expressly provided in this _____ Supplemental
Indenture or in the form of Series [ ] Security otherwise clearly required by
the context hereof or thereof, all terms used herein that are defined in the
Indenture shall have the meanings assigned to them therein.
SECTION 202. Ratification of Indenture.
The Indenture, as supplemented by this _____ Supplemental Indenture,
is in all respects ratified and confirmed, and this _____ Supplemental Indenture
shall be deemed part of the Indenture in the manner and to the extent herein and
therein provided.
SECTION 203. Recitals.
The recitals herein contained are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representation as to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 204. Counterparts.
This _____ Supplemental Indenture may be executed in any number of
counterparts each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and attested, on
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the date or dates indicated in the acknowledgments and as of the day and year
first above written.
MIDAMERICAN ENERGY COMPANY
By_______________________
Name:
Title:
Attest:
_______________________
Name:
Title:
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By_______________________
Name:
Title:
Attest:
_______________________
Name:
Title:
(Seal)
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EXHIBIT A
[FORM OF FACE OF SERIES [ ] SECURITY]
MIDAMERICAN ENERGY COMPANY
____% Deferrable Interest Subordinated
Debenture, Series [ ] Due ____
No.
$________
MIDAMERICAN ENERGY COMPANY, a corporation duly organized and existing
under the laws of the State of Iowa (herein called the "Company," which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _________________, or registered
assigns, the principal sum of __________ DOLLARS ($__________) on _________,
____, and to pay interest on said principal sum from ___________, ____, or from,
and excluding, the most recent Interest Payment Date through which interest has
been paid or duly provided for, quarterly in arrears on the first day of March,
June, September and December of each year, commencing __________, ____, at the
rate of ____% per annum until the principal hereof is paid or made available for
payment. The amount payable on any Interest Payment Date shall be computed on
the basis of a 360-day year of twelve 30-day months. Interest on the
Securities of this series will accrue from, and including, __________, ____
through the first Interest Payment Date, and thereafter will accrue, from, and
excluding, the last Interest Payment Date through which interest has been paid
or duly provided for. In the event that any Interest Payment Date is not a
Business Day, then payment of interest payable on such date will be made on the
next succeeding day which 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 Interest Payment Date. The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the Business Day 15 days preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall
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forthwith cease to be payable to the Holder on such Regular Record Date and may
either be paid to the Person in whose name this Security (or one or more
Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, of which notice shall be given to Holders of Securities not less than
10 days prior to such Special Record Date, or be paid at any time in any other
lawful manner not inconsistent with the requirements of any securities exchange
on which the Securities of this series may be listed, and upon such notice as
may be required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and premium, if any, and interest on this
Security will be made at the office or agency of the Company maintained for that
purpose in [The City of New York], in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts; provided, however, that at the option of the Company payment of
interest may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Securities Register or (ii) by wire
transfer in immediately available funds at such place and to such account as may
be designated by the Person entitled thereto as specified in the Securities
Register.
Reference is hereby made to the further provisions of this Security
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
Dated: ____________, ___
MIDAMERICAN ENERGY COMPANY
By:____________________
Name:
Title:
Attest:
____________________
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
By:___________________________
Authorized Signatory
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FORM OF REVERSE OF SERIES [ ] SECURITY
This Security is one of a duly authorized issue of securities of the
Company, designated as its ____% Deferrable Interest Subordinated Debentures
(herein called the "Securities"), limited in aggregate principal amount to
$__________ issued under an Indenture, dated as of __________, ____,
supplemented by a ______ Supplemental Indenture, dated as of _________, ____,
(herein called the "Indenture"), from the Company to The First National Bank of
Chicago, as Trustee (herein called the "Trustee", which term includes any
successor trustee under the Indenture), to which Indenture and such supplemental
indenture (the "Supplemental Indenture") reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Trustee, the Company and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
The Securities of this series are subject to redemption upon not less
than 30 nor more than 60 days' notice by mail, at any time on or after
__________, ____ as a whole or in part, at the election of the Company, at a
Redemption Price equal to 100% of the principal amount, together in the case of
any such redemption with accrued interest to, but not including, the Redemption
Date, but interest installments whose Stated Maturity is on or prior to such
Redemption Date will be payable to the Holder of such Security, or one or more
Predecessor Securities, of record at the close of business on the related
Regular Record Date referred to on the face hereof, all as provided in the
Indenture.
The Securities of this series will also be redeemable at the option of
the Company if a Tax Event or an Investment Company Event (each as defined in
the Supplemental Indenture) shall occur and be continuing, in whole but not in
part, at a redemption price equal to 100% of the principal amount of the
Securities of this series then Outstanding plus any accrued and unpaid interest,
including Additional Interest Attributable to Taxes, if any, to the redemption
date, upon not less than 30 nor more than 60 days' notice given as provided in
the Indenture.
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The Securities of this series will also be redeemable, in whole but
not in part, at the option of the Company upon the termination and liquidation
of the Trust pursuant to an order for the dissolution, termination or
liquidation of the Trust entered by a court of competent jurisdiction at a
redemption price equal to 100% of the principal amount of the Securities of this
series then Outstanding plus any accrued and unpaid interest, including
Additional Interest Attributable to Taxes, if any, to the redemption date, upon
not less than 30 nor more than 60 days' notice given as provided in the
Indenture.
In the event of the redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
The indebtedness evidenced by this Security is, to the extent provided
in the Indenture, subordinated and subject in right of payment to the prior
payment in full of all Senior Indebtedness, and this Security is issued subject
to the provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to acknowledge or effectuate the
subordination so provided and (c) appoints the Trustee his attorney-in-fact for
any and all such purposes. Each Holder hereof, by his acceptance hereof, hereby
waives all notice of the acceptance of the subordination provisions contained
herein and in the Indenture by each holder of Senior Indebtedness, whether now
outstanding or hereafter incurred, and waives reliance by each such Holder upon
said provisions.
The Indenture contains provisions for defeasance at any time of the
entire indebtedness of this Security upon compliance by the Company with certain
conditions set forth in the Indenture.
If an Event of Default with respect to the Securities shall occur and
be continuing, the principal of the Securities may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
company and the rights of the Holders of the Securities of each series to be
affected under the
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Indenture at any time by the Company and the Trustee with the consent of the
Holders of a majority in principal amount of the Securities at the time
Outstanding of all series to be affected. The Indenture also contains provisions
permitting Holders of specified percentages in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Security
shall be conclusive and binding upon such Holder and upon all future Holders of
this Security and of any Security issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default with respect to the
Securities of this series, the Holders of not less than a majority in aggregate
principal amount of the Securities of all series at the time Outstanding in
respect of which an Event of Default shall have occurred and be continuing shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default as Trustee and offered the Trustee reasonable indemnity,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of Securities of all series at the time Outstanding
in respect of which an Event of Default shall have occurred and be continuing a
direction inconsistent with such request, and shall have failed to institute any
such proceeding, for 60 days after receipt of such notice, request and offer of
indemnity. The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or any
premium or interest hereon on or after the respective due dates expressed
herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Security at the times, place and rate, and in the coin or currency, herein
prescribed.
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The Company has the right, at any time during the term of the
Securities of this series, from time to time to extend the interest payment
period thereon for up to 20 consecutive quarters (the "Extension Period") during
which period interest will compound quarterly and the Company shall have the
right to make partial payments of interest on any Interest Payment Date;
provided that no Extension Period may extend beyond the Maturity Date of the
Securities and provided further that the Company shall not defer the interest
payment period with respect to Additional Interest Attributable to Taxes and
shall make payment thereof on the relevant Interest Payment Date. At the end of
the Extension Period, the Company shall pay all interest then accrued and unpaid
thereon (together with additional interest thereon at the rate of __% per annum,
compounded quarterly, to the extent permitted by applicable law). During any
such Extension Period the Company will not, and will not permit any subsidiary
of the Company to, (i) declare or pay any dividends or distributions on, or
redeem, purchase, acquire, or make a liquidation payment with respect to, any of
the Company's outstanding capital stock or (ii) make any payment of principal,
interest or premium, if any, on or repay, repurchase or redeem any debt
securities of the Company (including other Securities) that rank PARI PASSU with
or junior in interest to the Series
[ ] Securities or make any guarantee payments with respect to any guarantee by
the Company of the debt securities of any subsidiary of the Company if such
guarantee ranks PARI PASSU or junior in interest to the Series [ ] Securities
(other than (a) dividends or distributions in common stock of the Company, (b)
payments under any Guarantee, and (c) purchases of common stock related to the
issuance of common stock under any of the Company's benefit plans for its
directors, officers or employees). Prior to the termination of any such
Extension Period, the Company may further extend the interest payment period,
PROVIDED that no Extension Period shall exceed 20 consecutive quarters or extend
beyond the Maturity Date of the Series [ ] Securities. Upon the termination of
any Extension Period and upon the payment of all amounts then due, the Company
may select a new Extension Period, subject to the foregoing requirements.
Except for Additional Interest Attributable to Taxes, no interest shall be due
and payable during an Extension Period, except at the end thereof. Notice of
the Company's election of an Extension Period will be given as provided in or
pursuant to the Indenture.
The Securities 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
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limitations therein set forth, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series and of like tenor
and of authorized denominations, as requested by the Holder surrendering the
same.
As provided in the Indenture, the Company shall not be required to
make transfers or exchanges of Securities of this series for a period of 15 days
immediately preceding the date of the mailing of any notice of redemption of
such Securities and the Company shall not be required to make transfers or
exchanges of any Securities of this series so selected for redemption in whole
or in part (except the unredeemed portion of thereof).
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the company or the Trustee
may treat the Person in whose name this Security is registered as the absolute
owner hereof for all purposes, whether or not this Security be overdue, and
neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
The Company and, by its acceptance of this Security or a beneficial
interest therein, the Holder of, and any Person that acquires a beneficial
interest in, this Security agree that for United States federal, state and
local tax purposes it is intended that this Security constitute indebtedness
and agree to treat this Security accordingly for such purposes.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.