EXHIBIT 4(Q)
FLORIDA POWER & LIGHT COMPANY
OFFICER'S CERTIFICATE
CREATING THE ___ JUNIOR SUBORDINATED DEBENTURES, SERIES DUE __
____________, the ___________________________________ of Florida Power &
Light Company (the "Company"), pursuant to the authority granted in the
accompanying Board Resolutions (all capitalized terms used herein which are not
defined herein or in Exhibit A hereto, but are defined in the Indenture referred
to below, shall have the meanings specified in the Indenture), and Sections 201
and 301 of the Indenture, do hereby certify to The Bank of New York (the
"Trustee"), as Trustee under the Indenture of the Company (For Unsecured
Subordinated Debt Securities relating to Trust Securities) dated as of
__________, 200__ (the "Indenture") that:
1. The securities to be issued under the Indenture shall be designated "_____
Junior Subordinated Debentures, Series due ___" (the "Debentures of the
____ Series") and shall be issued in substantially the form set forth in
Exhibit A hereto. The Debentures of the ____ Series are to be issued to The
Bank of New York, as Property Trustee (the "Property Trustee") of Florida
Power & Light Company Trust __, a Delaware statutory trust (the "Trust");
2. The Debentures of the ____ Series shall mature and the principal shall be
due and payable together with all accrued and unpaid interest thereon on
___________, ____;
3. The Debentures of the ____ Series shall bear interest as provided in the
form thereof set forth as Exhibit A hereto;
4. Each installment of interest on a Debenture of the ____ Series shall be
payable as provided in the form thereof set forth as Exhibit A hereto;
5. Registration and registration of transfers and exchanges in respect of the
Debentures of the ____ Series may be effected at the office or agency of
the Company in The City of New York, New York. Notices and demands to or
upon the Company in respect of the Debentures of the ____ Series may be
served at the office or agency of the Company in The City of New York, New
York. The Corporate Trust Office of the Trustee will initially be the
agency of the Company for such payment, registration and registration of
transfers and exchanges and service of notices and demands and the Company
hereby appoints the Trustee as its agent for all such purposes; provided,
however, that the Company reserves the right to change, by one or more
Officer's Certificates, any such office or agency and such agent. The
Trustee will initially be the Security Registrar and the Paying Agent for
the Debentures of the ____ Series;
6. The Regular Record Date for the interest payable on any given Interest
Payment Date with respect to the Debentures of the ____ Series shall be the
close of business on the 15th calendar day next preceding such Interest
Payment Date, provided that if the Debentures of the ______ Series are held
by a securities depository in book-entry form, the Regular Record Date will
be the close of business on the Business Day immediately preceding such
Interest Payment Date;
7. [Redemption provisions, if any will be inserted];
8. [If at any time a Tax Event (as defined in the form of the Debentures of
the _____ Series set forth as Exhibit A hereto) shall occur and be
continuing, and either (i) in the opinion of tax counsel to the Trust or
the Company experienced in such matters, there would in all cases, after
effecting the dissolution of the Trust, after satisfaction of liabilities
to creditors of the Trust, if any, as provided by applicable law, and the
distribution of the Debentures of the ____ Series to the holders of the
Preferred Trust Securities issued by the Trust (the "Preferred Trust
Securities"), in exchange therefor, be more than an insubstantial risk that
an Adverse Tax Consequence (as defined in the form of the Debentures of the
____ Series set forth as Exhibit A hereto) would continue to exist or (ii)
the Debentures of the ____ Series are not held by the Trust, then the
Company shall have the right to redeem the Debentures of the ____ Series,
in whole but not in part, at any time within 90 days following the
occurrence of the Tax Event, at 100% of the principal amount thereof plus
accrued and unpaid interest thereon, including Additional Interest, if any,
to the Redemption Date;]
[If at any time an Investment Company Act Event (as defined in the form of
the Debentures of the ____ Series set forth as Exhibit A hereto) shall
occur and be continuing, then the Company shall have the right to redeem
the Debentures of the ____ Series, in whole, but not in part, at any time
within 90 days following the occurrence of the Investment Company Act
Event, at 100% of the principal amount thereof plus accrued and unpaid
interest thereon, including Additional Interest, if any, to the Redemption
Date;]
9. So long as any Debentures of the ____ Series are Outstanding, the failure
of the Company to pay interest, including Additional Interest, if any, on
any Debentures of the ____ Series within 30 days after the same becomes due
and payable (whether or not payment is prohibited by the subordination
provisions of Article Fourteen of the Indenture) shall constitute an Event
of Default; provided, however, that a valid extension of the interest
payment period by the Company as contemplated in Section 312 of the
Indenture and paragraph (10) of this Certificate shall not constitute a
failure to pay interest for this purpose;
10. Pursuant to Section 312 of the Indenture, so long as no Event of Default
under the Indenture has occurred and is continuing with respect to the
Securities of any series, the Company shall have the right, at any time and
from time to time during the term of the Debentures of the ____ Series, to
extend the interest payment period to a period not exceeding 20 consecutive
quarterly periods (an "Extension Period"); provided that no Extension
Period shall extend beyond the Stated Maturity or end on a day other than
an Interest Payment Date. During the Extension Period interest (calculated
for each Interest Period in the manner provided for in Exhibit A hereto, as
if the interest payment period had not been so extended) will be compounded
[quarterly]. At the end of the Extension Period, which shall be an Interest
Payment Date, the Company shall pay all interest accrued and unpaid thereon
(together with interest thereon at the rate specified for the Debentures of
the ______ Series, compounded [quarterly], to the extent permitted by
applicable law) and Additional Interest, if any, to the Person in whose
name the Debentures of the____ Series are registered at the close of
business on the Regular Record Date for the Interest Payment Date on which
such Extension Period ended; provided that any such accrued and unpaid
interest payable at Stated Maturity or any Redemption Date will be paid to
the Person to whom principal is payable. With respect to the Debentures of
_____ Series, the term "Interest Period" shall mean each period from, and
including, an Interest Payment Date to, but excluding, the next succeeding
Interest Payment Date, except that the first Interest Period shall commence
on the date of original issuance. However, during any such Extension
Period, the Company shall not
(A) declare or pay any dividends or distributions on its capital
stock, or
(B) redeem, purchase, acquire or make a liquidation payment with
respect to any of its capital stock, or
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(C) pay any principal, interest or premium on, or repay, repurchase or
redeem any debt securities that are equal or junior in right of payment to
the Debentures of the _____ Series; or
(D) make any payments with respect to any guarantee of debt securities
by the Company if such guarantee is equal or junior in right of payment to
the Debentures of the _____ Series ("Restricted Payments").
The foregoing provisions shall not prevent or restrict the Company from
making:
(a) purchases, redemptions or other acquisitions of its capital
stock in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of employees,
officers, directors or agents or a stock purchase or dividend
reinvestment plan, or the satisfaction of its obligations pursuant to
any contract or security outstanding on the date that the interest
payment period is extended requiring it to purchase, redeem or acquire
its capital stock;
(b) any payment, redemption, purchase, acquisition or declaration
of dividend described in clauses (A) and (B) above as a result of a
reclassification of its capital stock, or the exchange or conversion
of all or a portion of one class or series of its capital stock for
another class or series of its capital stock;
(c) the purchase of fractional interests in shares of its capital
stock pursuant to the conversion or exchange provisions of its capital
stock or the security being converted or exchanged, or in connection
with the settlement of stock purchase contracts;
(d) dividends or distributions paid or made in its capital stock
(or rights to acquire its capital stock), or repurchases, redemptions
or acquisitions of capital stock in connection with the issuance or
exchange of capital stock (or of securities convertible into or
exchangeable for shares of its capital stock and distributions in
connection with the settlement of stock purchase contracts);
(e) redemptions, exchanges or repurchases of, or with respect to,
any rights outstanding under a shareholder rights plan or the
declaration or payment thereunder of a dividend or distribution of or
with respect to rights in the future; or
(f) payments under any preferred trust securities guarantee or
guarantee of junior subordinated debentures executed and delivered by
the Company concurrently with the issuance by a trust of any preferred
trust securities, so long as the amount of payments made on any
preferred trust securities or junior subordinated debentures (as the
case may be) is paid on all preferred trust securities or junior
subordinated debentures (as the case may be) then outstanding on a pro
rata basis in proportion to the full distributions to which each
series of preferred trust securities or junior subordinated debentures
(as the case may be) is then entitled if paid in full.
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 20 consecutive quarterly periods at any one time or extend
beyond the Maturity of the Debentures of the ____ Series. Upon the
termination of any such Extension Period and the payment of all amounts
then due, including interest on deferred interest payments, the Company may
elect to begin a new Extension Period, subject to the above requirements.
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No interest shall be due and payable during an Extension Period, except at
the end thereof. The Company will give the Trust and the Trustee notice of
its election of an Extension Period before the earlier of (i) the Business
Day prior to the record date for the distribution on the Preferred Trust
Securities which would occur but for such election or (ii) the date the
Administrative Trustees of the Trust are required to give notice to any
securities exchange or any other applicable self-regulatory organization of
the record date for such distribution. The Trustee will cause the Trust to
send notice of such election to the holders of Preferred Trust Securities;
11. At any time, the Company will have the right to dissolve the Trust and,
after satisfaction of liabilities to creditors, if any, of the Trust as
provided by applicable law, cause a proportionate amount of the Debentures
of the ____ Series to be distributed to the holders of the Preferred Trust
Securities and the Common Trust Securities;
12. In the event that, at any time subsequent to the initial authentication and
delivery of the Debentures of the ____ Series, the Debentures of the ____
Series are to be held in global form 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 certificate;
13. No service charge shall be made for the registration of transfer or
exchange of the Debentures of the ____ Series; 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;
14. The Trust for Debentures of the ____ Series shall be Florida Power & Light
Company Trust __, a Delaware statutory trust. The Trust Agreement for
Debentures of the ____ Series shall be the Amended and Restated Trust
Agreement dated as of _________, 200__ relating to the Trust, as it may be
modified, amended or supplemented from time to time;
15. If the Company shall make any deposit of money and/or Eligible Obligations
with respect to any Debentures of the ____ Series, or any portion of the
principal amount thereof, as contemplated by Section 701 of the Indenture,
the Company shall not deliver an Officer's Certificate described in clause
(z) in the first paragraph of said Section 701 unless the Company shall
also deliver to the Trustee, together with such Officer's Certificate,
either:
(A) an instrument wherein the Company, notwithstanding the
satisfaction and discharge of its indebtedness in respect of the Debentures
of the ____ Series, shall assume the obligation (which shall be absolute
and unconditional) to irrevocably deposit with the Trustee or Paying Agent
such additional sums of money, if any, or additional Eligible Obligations
(meeting the requirements of Section 701), if any, or any combination
thereof, at such time or times, as shall be necessary, together with the
money and/or Eligible Obligations theretofore so deposited, to pay when due
the principal of and premium, if any, and interest due and to become due on
such Debentures of the ____ Series or portions thereof, all in accordance
with and subject to the provisions of said Section 701; provided, however,
that such instrument may state that the obligation of the Company to make
additional deposits as aforesaid shall be subject to the delivery to the
Company by the Trustee of a notice asserting the deficiency accompanied by
an opinion of an independent public accountant of nationally recognized
standing, selected by the Trustee, showing the calculation thereof; or
(B) an Opinion of Counsel to the effect that, as a result of (i) the
receipt by the Company from, or the publication by, the Internal Revenue
Service of a ruling or (ii) a change in law occurring after the date of
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this certificate, the Holders of such Debentures of the ____ Series, or
portions of the principal amount thereof, will not recognize income, gain
or loss for United States federal income tax purposes as a result of the
satisfaction and discharge of the Company's indebtedness in respect thereof
and will be subject to United States federal income tax on the same
amounts, at the same times and in the same manner as if such satisfaction
and discharge had not been effected;
16. The Company reserves the right to require legends on Debentures of the ____
Series as it may determine are necessary to ensure compliance with the
securities laws of the United States and the states therein and any other
applicable laws;
17. The Debentures of the ____ Series shall have such other terms and
provisions as are provided in the form set forth as Exhibit A hereto;
18. The undersigned has read all of the covenants and conditions contained in
the Indenture relating to the issuance of the Debentures of the ____ Series
and the definitions in the Indenture relating thereto and in respect of
which this certificate is made;
19. The statements contained in this certificate are based upon the familiarity
of the undersigned with the Indenture, the documents accompanying this
certificate, and upon discussions by the undersigned with officers and
employees of the Company familiar with the matters set forth herein;
20. In the opinion 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 such covenants and conditions have been
complied with; and
21. In the opinion of the undersigned, such conditions and covenants and
conditions precedent, if any (including any covenants compliance with which
constitutes a condition precedent) to the authentication and delivery of
the Debentures of the ____ Series requested in the accompanying Company
Order No. __, have been complied with.
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IN WITNESS WHEREOF, I have executed this Officer's Certificate on behalf of
the Company this _____ day of _________, ____ in New York, New York.
By:
---------------------------
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EXHIBIT A
NO._______________ CUSIP NO. _________
[FORM OF FACE OF JUNIOR SUBORDINATED DEBENTURE]
FLORIDA POWER & LIGHT COMPANY
[_______] JUNIOR SUBORDINATED DEBENTURES, SERIES DUE _____
FLORIDA POWER & LIGHT COMPANY, a corporation duly organized and existing
under the laws of the State of Florida (herein referred to as the "Company",
which term includes any successor Person under the Indenture), for value
received, hereby promises to pay to The Bank of New York, as Property Trustee
under the Amended and Restated Trust Agreement, dated as of __________, 200__ of
Florida Power & Light Company Trust __, a Delaware statutory trust, or
registered assigns, the principal sum of ____________________ Dollars on
____________ and to pay interest on said principal sum ________ on ______,
______, ______ and ______ of each year commencing ______ (each an "Interest
Payment Date") at the rate of ______% per annum until the principal hereof is
paid or made available for payment. [Provision for reset of interest rate will
be inserted, if applicable.] Interest on the Securities of this series will
accrue from and including __________, to and excluding the first Interest
Payment Date, and thereafter will accrue from and including the last Interest
Payment Date to which interest has been paid or duly provided for. No interest
will accrue on the Securities with respect to the day on which the Securities
mature. 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
such delay); provided, however, that if such Business Day is in the next
succeeding calendar year, payment shall be made on the immediately preceding
Business Day, in each case with the same force and effect as if made on the
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 payable 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 installment which shall be the close of business on the 15th
calendar day next preceding such Interest Payment Date, provided that if the
Securities are held by a securities depository in book-entry form, the Regular
Record Date will be the close of business on the Business Day immediately
preceding such Interest Payment Date, and provided further that interest payable
at Maturity or on any Redemption Date will be paid to the Person to whom
principal is payable. Any such interest not so punctually paid or duly provided
for will forthwith cease to be payable to the Holder of this Security 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, notice whereof shall be given to Holders of Securities
of this series not less than 10 days prior to such Special Record Date, or be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange, if any, on which the Securities of this
series may be listed, and upon such notice as may be required by such exchange,
all as more fully provided in the Indenture referred to on the reverse hereof.
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, the State 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, interest on this Security may be paid by check mailed to the
address of the Person entitled thereto, as such address shall appear on the
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Security Register or by a wire transfer to an account designated by the Person
entitled thereto.
Reference is hereby made to the further provisions of this Security
set forth 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.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed in New York, New York.
FLORIDA POWER & LIGHT COMPANY
By:
-------------------------------
[FORM OF CERTIFICATE OF AUTHENTICATION]
CERTIFICATE OF AUTHENTICATION
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By:
-----------------------------
Authorized Signatory
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[FORM OF REVERSE OF JUNIOR SUBORDINATED DEBENTURE]
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture (For Unsecured Subordinated Debt Securities relating
to Trust Securities), dated as of ________ (herein, together with any amendments
thereto, called the "Indenture", which term shall have the meaning assigned to
it in such instrument), between the Company and The Bank of New York, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), and reference is hereby made to the Indenture, including the
Board Resolutions and Officer's Certificate filed with the Trustee on
_____________, creating the series designated on the face hereof (herein called,
the "Officer's Certificate"), for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee 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.
[Redemption provisions, if any, will be inserted]
[If at any time a Tax Event (as defined below) shall occur and be
continuing, and either (i) in the opinion of tax counsel to the Trust or the
Company experienced in such matters, there would in all cases, after effecting
the dissolution of the Trust, after satisfaction of liabilities to creditors of
the Trust, if any, as provided by applicable law, and the distribution of this
Security to the holders of the Preferred Trust Securities issued by the Trust
(the "Preferred Trust Securities"), in exchange therefor, be more than an
insubstantial risk that an Adverse Tax Consequence (as defined below) would
continue to exist or (ii) this Security is not held by the Trust, then the
Company shall have the right to redeem this Security, in whole but not in part,
at any time within 90 days following the occurrence of the Tax Event, at 100% of
the principal amount thereof plus accrued and unpaid interest thereon, including
the Additional Interest, if any, to the Redemption Date.]
["Tax Event" means the receipt by the Trust or the Company of an
Opinion of Counsel experienced in such matters to the effect that, as a result
of (a) any amendment to, clarification of, or change (including any announced
prospective change) in, the laws or treaties (or any regulations thereunder) of
the United States or any political subdivision or taxing authorities thereof or
therein; (b) any judicial decision or any official administrative pronouncement,
ruling, regulatory procedure, notice or announcement (including any notice or
announcement of intent to issue or adopt any such administrative pronouncement,
ruling, regulatory procedure or regulation) (each, an "Administrative Action"),
or (c) any amendment to, clarification of, or change in the official position or
the interpretation of any such Administrative Action or judicial decision or any
interpretation or pronouncement that provides for a position with respect to
such Administrative Action or judicial decision that differs from the
theretofore generally accepted position, in each case by any legislative body,
court, governmental authority or regulatory body, irrespective of the time or
manner in which such amendment, clarification or change is introduced or made
known, which amendment, clarification, or change is effective, or which
Administrative Action is taken or which judicial decision, interpretation or
pronouncement is issued, in each case on or after _________, 200_, there is more
than an insubstantial risk that (i) the Trust is, or will be, subject to United
States Federal income tax with respect to interest received on this Security,
(ii) interest payable by the Company on this Security is not, or will not be,
fully deductible by the Company for United States Federal income tax purposes,
or (iii) the Trust is, or will be, subject to more than a de minimis amount of
other taxes, duties or other governmental charges (each of the circumstances
described in clauses (i), (ii) or (iii) being an "Adverse Tax Consequence").]
[If at any time an Investment Company Act Event (as defined below)
shall occur and be continuing, then the Company shall have the right to redeem
this Security, in whole, but not in part, at any time within 90 days following
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the occurrence of the Investment Company Act Event, at 100% of the principal
amount thereof plus accrued and unpaid interest thereon, including Additional
Interest, if any, to the Redemption Date.
An "Investment Company Act Event" occurs when the Trust or the Company
has received an Opinion of Counsel experienced in such matters to the effect
that, as a result of a change in law or regulation or a written change in
interpretation or application of law or regulation by any legislative body,
court, governmental agency or regulatory authority after __________, 200_, there
is more than an insubstantial risk that the Trust is or will be considered an
investment company under the Investment Company Act of 1940, as amended.]
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.
In the event of redemption of this Security in part only, a new
Security or Securities of this series and of like tenor 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 of the Company, 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 with certain conditions set
forth in the Indenture including the Officer's Certificate described above.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of and interest on the Securities of this
series 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 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 the 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.
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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 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 any premium and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
Pursuant to Section 312 of the Indenture, so long as no Event of
Default under the Indenture has occurred and is continuing with respect to the
Securities of any series, the Company shall have the right, at any time and from
time to time during the term of the Securities of this series, to extend the
interest payment period to a period not exceeding 20 consecutive quarterly
periods (an "Extension Period"); provided that no Extension Period shall extend
beyond the Stated Maturity or end on a day other than an Interest Payment Date.
During the Extension Period interest (calculated for each Interest Period in the
manner provided for on the face hereof, as if the interest payment period had
not been so extended) will be compounded [quarterly]. At the end of the
Extension Period, which shall be an Interest Payment Date, the Company shall pay
all interest accrued and unpaid hereon (together with interest hereon at the
rate specified for the Securities of this series, compounded [quarterly], to the
extent permitted by applicable law) and Additional Interest, if any, to the
Person in whose name the Securities of this series are registered at the close
of business on the Regular Record Date for the Interest Payment Date on which
such Extension Period ended; provided that any such accrued and unpaid interest
payable at Stated Maturity or any Redemption Date will be paid to the Person to
whom principal is payable. During any such Extension Period, the Company shall
not (i) declare or pay any dividends or distributions on its capital stock, or
(ii) redeem, purchase, acquire or make a liquidation payment with respect to any
of its capital stock, or (iii) pay any principal, interest or premium on, or
repay, repurchase or redeem any debt securities that are equal or junior in
right of payment to the Securities of this series, or (iv) make any payments
with respect to any guarantee of debt securities if such guarantee is equal or
junior in right of payment to the Securities of this series ("Restricted
Payments").
The foregoing provisions shall not prevent or restrict the Company from
making:
(a) purchases, redemptions or other acquisitions of its capital
stock in connection with any employment contract, benefit plan or
other similar arrangement with or for the benefit of employees,
officers, directors or agents or a stock purchase or dividend
reinvestment plan, or the satisfaction of its obligations pursuant to
any contract or security outstanding on the date that the interest
payment period is extended requiring it to purchase, redeem or acquire
its capital stock;
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(b) any payment, repayment, redemption, purchase, acquisition or
declaration of dividend described in clauses (i) and (ii) above as a
result of a reclassification of its capital stock, or the exchange or
conversion of all or a portion of one class or series of its capital
stock for another class or series of its capital stock;
(c) the purchase of fractional interests in shares of its capital
stock pursuant to the conversion or exchange provisions of its capital
stock or the security being converted or exchanged, or in connection
with the settlement of stock purchase contracts;
(d) dividends or distributions paid or made in its capital stock
(or rights to acquire its capital stock), or repurchases, redemptions
or acquisitions of capital stock in connection with the issuance or
exchange of capital stock (or of securities convertible into or
exchangeable for shares of its capital stock and distributions in
connection with the settlement of stock purchase contracts);
(e) redemptions, exchanges or repurchases of, or with respect to,
any rights outstanding under a shareholder rights plan or the
declaration or payment thereunder of a dividend or distribution of or
with respect to rights in the future; or
(f) payments under any preferred trust securities guarantee or
guarantee of junior subordinated debentures executed and delivered by
the Company concurrently with the issuance by a trust of any preferred
trust securities, so long as the amount of payments made on any
preferred trust securities or junior subordinated debentures (as the
case may be) is paid on all preferred trust securities or junior
subordinated debentures (as the case may be) then outstanding on a pro
rata basis in proportion to the full distributions to which each
series of preferred trust securities or junior subordinated debentures
(as the case may be) is then entitled if paid in full.
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
20 consecutive quarterly periods at any one time or extend beyond the Maturity
of the Securities of this series. Upon the termination of any such Extension
Period and the payment of all amounts then due, including interest on deferred
interest payments, the Company may elect to begin a new Extension Period,
subject to the above requirements. No interest shall be due and payable during
an Extension Period, except at the end thereof. The Company shall give the
Trustee notice of its election of an Extension Period before the Business Day
prior to the record date for the distribution which would occur but for such
election and the Trustee will cause the Trust to send notice of such election to
the holders of Preferred Trust Securities.
The Securities of this series are issuable only in registered form
without coupons in denominations of $[1,000][25] and integral multiples thereof.
As provided in the Indenture and subject to certain 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.
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
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neither the Company, the Trustee nor any such agent shall be affected by notice
to the contrary.
All terms used in this Security which are defined either in the
Indenture or in the Officer's Certificate shall have the meanings assigned to
them in the Indenture or in the Officer's Certificate.
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