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BOWATER INCORPORATED,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
dated as of March 17, 2004
$250,000,000
Floating Rate Senior Notes due 2010
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TABLE OF CONTENTS
Page
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. Relation to Base Indenture..............................2
SECTION 1.02. Definitions.............................................2
ARTICLE II
TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. Establishment...........................................3
SECTION 2.02. Payment of Principal and Interest; Maturity.............3
SECTION 2.03. Determination of Interest...............................4
SECTION 2.04. Optional Redemption of the Notes by the Company.........4
SECTION 2.05. Sinking Fund............................................4
SECTION 2.06. Defeasance..............................................5
SECTION 2.07. Other Terms of Notes....................................5
ARTICLE III
MISCELLANEOUS
SECTION 3.01. Ratification of Indenture...............................5
SECTION 3.02. Trustee Not Responsible for Recitals....................5
SECTION 3.03. Effect of Headings and Table of Contents................5
SECTION 3.04. New York Law to Govern..................................5
SECTION 3.05. Separability Clause.....................................5
SECTION 3.06. Counterparts............................................6
-i-
5
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of March 17, 2004 (this "First
Supplemental Indenture"), between Bowater Incorporated, a Delaware corporation
(the "Company"), and The Bank of New York, a New York banking corporation, as
Trustee (herein called the "Trustee").
RECITALS
WHEREAS, the Company previously has executed and delivered to the Trustee a
Senior Indenture dated as of March 17, 2004 between the Company and the Trustee
(the "Base Indenture" and, together with this First Supplemental Indenture, the
"Indenture"), providing for the issuance from time to time of series of the
Company's Securities;
WHEREAS, Section 9.01 of the Base Indenture provides for various matters
with respect to Securities of any series issued under the Base Indenture to be
established in an indenture supplemental to the Base Indenture, and Section
9.01(7) of the Base Indenture provides for the Company and the Trustee to enter
into an indenture supplemental to the Base Indenture to establish the form or
terms of Securities of any series as provided by Sections 2.01 and 3.01 of the
Base Indenture;
WHEREAS, pursuant to the terms of the Base Indenture, the Company desires
to provide for the establishment of a new series of its Securities to be known
as its Floating Rate Senior Notes due 2010 (the "Notes"), the form and substance
of such Notes and the terms, provisions and conditions thereof to be set forth
as provided in this First Supplemental Indenture; and
WHEREAS, the Company has requested that the Trustee execute and deliver
this First Supplemental Indenture, and the Company further certifies that all
requirements necessary to make this First Supplemental Indenture a valid,
binding and enforceable instrument in accordance with its terms, and to make the
Notes, when executed by the Company and authenticated and delivered by the
Trustee, the valid, binding and enforceable obligations of the Company, have
been done and performed, and the execution and delivery of this First
Supplemental Indenture has been duly authorized in all respects;
NOW, THEREFORE, WITNESSETH:
In consideration of the covenants and agreements set forth herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, each party agrees as follows for the benefit of each other
and for the equal and proportionate benefit of all Holders of the Notes:
1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01. RELATION TO BASE INDENTURE.
This First Supplemental Indenture constitutes an integral part of the Base
Indenture.
SECTION 1.02. DEFINITIONS.
Except as otherwise expressly provided herein or unless the context
otherwise requires:
(1) a term defined in the Base Indenture has the same meaning when
used in this First Supplemental Indenture unless the term is amended and
supplemented pursuant to this First Supplemental Indenture;
(2) the terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular;
(3) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein;
(4) the words "herein," "hereof" and "hereunder" and other words of
similar import refer to this First Supplemental Indenture as a whole and
not to any particular Article, Section or other subdivision; and
(5) a term defined anywhere in this First Supplemental Indenture has
the same meaning throughout.
"Calculation Agent" means The Bank of New York, or its successor appointed
by the Company, acting as Calculation Agent.
"Daily Interest Amount" has the meaning specified in Section 2.03 hereof.
"Determination Date" means, with respect to an Interest Period, the second
London Banking Day preceding the first day of such Interest Period.
"Interest Period" means, with respect to the Notes, the period commencing
on and including an Interest Payment Date and ending on and including the day
immediately preceding the next succeeding Interest Payment Date; provided,
however, that the first Interest Period with respect to the Notes shall commence
on and include March 17, 2004 and end on and include June 14, 2004.
"LIBOR" means, with respect to an Interest Period, the rate (expressed as a
percentage per annum) for deposits in United States dollars for three-month
periods beginning on the first day of such Interest Period that appears on
2
Telerate Page 3750 as of 11:00 a.m., London time, on the Determination Date. If
Telerate Page 3750 does not include such a rate or is unavailable on a
Determination Date, the Calculation Agent will request the principal London
office of each of four major banks in the London interbank market, as selected
by the Calculation Agent, to provide such bank's offered quotation (expressed as
a percentage per annum), as of approximately 11:00 a.m., London time, on such
Determination Date, to prime banks in the London interbank market for deposits
in a Representative Amount in United States dollars for a three-month period
beginning on the first day of such Interest Period. If at least two such offered
quotations are so provided, LIBOR for the Interest Period will be the arithmetic
mean of such quotations. If fewer than two such quotations are so provided, the
Calculation Agent will request each of three major banks in New York City, as
selected by the Calculation Agent, to provide such bank's rate (expressed as a
percentage per annum), as of approximately 11:00 a.m., New York City time, on
such Determination Date, for loans in a Representative Amount in United States
dollars to leading European banks for a three-month period beginning on the
first day of such Interest Period. If at least two such rates are so provided,
LIBOR for the Interest Period will be the arithmetic mean of such rates. If
fewer than two such rates are so provided, then LIBOR for the Interest Period
will be LIBOR in effect with respect to the immediately preceding Interest
Period.
"London Banking Day" means any day in which dealings in United States
dollars are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.
"Representative Amount" means a principal amount of not less than U.S.
$1,000,000 for a single transaction in the relevant market at the relevant time.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Moneyline Telerate service (or such other page as may replace Page 3750 on that
service).
ARTICLE II
TERMS AND CONDITIONS OF THE NOTES
SECTION 2.01. ESTABLISHMENT.
There is hereby established a new series of Securities designated the
"Floating Rate Senior Notes due 2010," limited in aggregate principal amount to
$250,000,000. The Notes shall be issued in the form of one or more Global
Securities registered in the name of the Depositary (which shall be The
Depository Trust Company) or its nominee, in substantially the form attached
hereto as Exhibit A. The Trustee's certificate of authentication to be endorsed
on the Notes shall be in substantially in the form attached hereto as Exhibit B.
SECTION 2.02. PAYMENT OF PRINCIPAL AND INTEREST; MATURITY.
The principal of the Notes shall be due at Stated Maturity. The unpaid
principal amount of the Notes shall bear interest for each Interest Period at
the rate determined pursuant to Section 2.03 hereof until paid or duly provided
for. Interest shall be paid quarterly in arrears on each Interest Payment Date.
3
SECTION 2.03. DETERMINATION OF INTEREST.
The Notes will bear interest for each Interest Period at a per annum rate
equal to LIBOR plus 3.0%, as determined by the Calculation Agent, subject to the
maximum interest rate permitted by New York or other applicable state law, as
such law may be modified by United States law of general application. The amount
of interest to be paid on the Notes for each Interest Period shall equal the sum
of the Daily Interest Amounts (as defined below) for each day in such Interest
Period. The "Daily Interest Amount" for each day that the Notes are Outstanding
shall be an amount equal to the product of (i) the quotient of (A) the interest
rate in effect for such day, as determined by the Calculation Agent, divided by
(B) 360, multiplied by (ii) the aggregate principal amount of Notes Outstanding
on such day. In calculating the Daily Interest Amount and interest rate, all
percentages shall be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point being rounded upwards (e.g., 9.876545% (or .09876545) being
rounded to 9.87655% (or .0987655)), and all dollar amounts used in or resulting
from such calculations will be rounded to the nearest cent (with one-half cent
being rounded upwards).
Promptly upon making its determination of the interest rate in effect for
any Interest Period, the Calculation Agent shall notify the Company and the
Trustee, if the Trustee is not then serving as the Calculation Agent, of the
interest rate for such Interest Period. The interest rate determined by the
Calculation Agent, absent manifest error, shall be binding and conclusive upon
the beneficial owners and Holders of the Notes, the Company and the Trustee.
Upon the request of a Holder of Notes, the Calculation Agent will provide to
such Holder the interest rate in effect with respect to the Notes on the date of
such request.
SECTION 2.04. OPTIONAL REDEMPTION OF THE NOTES BY THE COMPANY.
Subject to the provisions of Article XI of the Base Indenture, the Company
shall have the right to redeem the Notes, in whole or in part, at any time or
from time to time, on and after March 15, 2006, at a redemption price equal to
the accrued and unpaid interest on the Notes so redeemed to the date fixed for
redemption plus:
(1) 102% of the aggregate Outstanding principal amount thereof, if
redeemed during the twelve-month period commencing on March 15, 2006;
(2) 101% of the aggregate Outstanding principal amount thereof, if
redeemed during the twelve-month period commencing on March 15, 2007; and
(3) 100% of the aggregate Outstanding principal amount thereof, if
redeemed on or after March 15, 2008.
SECTION 2.05. SINKING FUND.
The Notes are not entitled to the benefit of any sinking fund.
4
SECTION 2.06. DEFEASANCE.
The Notes shall not be defeasible in whole or in part.
SECTION 2.07. OTHER TERMS OF NOTES.
The other terms of the Notes shall be as expressly set forth in Article III
hereof and Exhibit A hereto.
ARTICLE III
MISCELLANEOUS
SECTION 3.01. RATIFICATION OF INDENTURE.
The Base Indenture, as supplemented by this First Supplemental Indenture,
is in all respects ratified and confirmed, and this First Supplemental Indenture
shall be deemed part of the Base Indenture in the manner and to the extent
herein and therein provided.
SECTION 3.02. TRUSTEE NOT RESPONSIBLE FOR RECITALS.
The recitals contained herein are made by the Company and not by the
Trustee, and the Trustee assumes no responsibility for the correctness thereof.
The Trustee makes no representations to the validity or sufficiency of this
First Supplemental Indenture.
SECTION 3.03. EFFECT OF HEADINGS AND TABLE OF CONTENTS.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 3.04. NEW YORK LAW TO GOVERN.
THIS FIRST SUPPLEMENTAL INDENTURE AND EACH NOTE SHALL BE DEEMED TO BE
CONTRACTS MADE UNDER THE LAWS OF THE STATE OF NEW YORK AND SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT
REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF (OTHER THAN SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW).
SECTION 3.05. SEPARABILITY CLAUSE.
In case any provision in this First Supplemental Indenture or in the Notes
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
5
SECTION 3.06. COUNTERPARTS.
This First 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.
[SIGNATURES FOLLOW ON SEPARATE PAGE]
6
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year
first above written.
BOWATER INCORPORATED
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Executive Vice President and
Chief Financial Officer
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President and Treasurer
THE BANK OF NEW YORK
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Assistant Vice President
7
EXHIBIT A
FORM OF NOTE
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
A-1
BOWATER INCORPORATED
CUSIP No. ▇▇▇▇▇▇▇▇▇
No. [ ]
-----
$[ ]
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Bowater Incorporated, a Delaware corporation (herein called the "Company",
which term includes any successor Person under the Indenture hereinafter
referred to), for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of [ ] Dollars on March 15,
-----------
2010 and to pay interest thereon from March 17, 2004 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
quarterly in arrears on each Interest Payment Date, on the 15th day of March,
June, September and December in each year commencing on June 15, 2004, at the
rate of LIBOR (as defined below) plus 3.0% per annum (to the extent that the
payment of such interest shall be legally enforceable), determined in accordance
with the provisions specified below, until the principal hereof is paid or made
available for payment. 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 1st day of March, June, September and
December (whether or not a Business Day), as the case may be, immediately
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may, at the election of the Company, 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 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.
The Securities (as defined on the reverse hereof) will bear interest for
each Interest Period at a per annum rate equal to LIBOR plus 3.0%, as determined
by the Calculation Agent, subject to the maximum interest rate permitted by New
York or other applicable state law, as such law may be modified by United States
law of general application. The amount of interest to be paid on the Securities
for each Interest Period shall equal the sum of the Daily Interest Amounts (as
defined below) for each day in such Interest Period. The "Daily Interest Amount"
for each day that the Securities are Outstanding shall be an amount equal to the
product of (i) the quotient of (A) the interest rate in effect for such day, as
determined by the Calculation Agent, divided by (B) 360, multiplied by (ii) the
aggregate principal amount of Securities Outstanding on such day. In calculating
the Daily Interest Amount and interest rate, all percentages shall be rounded,
if necessary, to the nearest one hundred-thousandth of a percentage point, with
five one-millionths of a percentage point being rounded upwards (e.g., 9.876545%
A-2
(or .09876545) being rounded to 9.87655% (or .0987655)), and all dollar amounts
used in or resulting from such calculations will be rounded to the nearest cent
(with one-half cent being rounded upwards).
"Calculation Agent" means The Bank of New York, or its successor appointed
by the Company, acting as Calculation Agent.
"Determination Date" means, with respect to an Interest Period, the second
London Banking Day preceding the first day of the Interest Period.
"Interest Period" means, with respect to the Securities, the period
commencing on and including an Interest Payment Date and ending on and including
the day immediately preceding the next succeeding Interest Payment Date;
provided, however, that the first Interest Period shall commence on and include
March 17, 2004 and end on and include June 14, 2004.
"LIBOR" means, with respect to an Interest Period, the rate (expressed as a
percentage per annum) for deposits in United States dollars for three-month
periods beginning on the first day of such Interest Period that appears on
Telerate Page 3750 as of 11:00 a.m., London time, on the Determination Date. If
Telerate Page 3750 does not include such a rate or is unavailable on a
Determination Date, the Calculation Agent will request the principal London
office of each of four major banks in the London interbank market, as selected
by the Calculation Agent, to provide such bank's offered quotation (expressed as
a percentage per annum), as of approximately 11:00 a.m., London time, on such
Determination Date, to prime banks in the London interbank market for deposits
in a Representative Amount in United States dollars for a three-month period
beginning on the first day of such Interest Period. If at least two such offered
quotations are so provided, LIBOR for the Interest Period will be the arithmetic
mean of such quotations. If fewer than two such quotations are so provided, the
Calculation Agent will request each of three major banks in New York City, as
selected by the Calculation Agent, to provide such bank's rate (expressed as a
percentage per annum), as of approximately 11:00 a.m., New York City time, on
such Determination Date, for loans in a Representative Amount in United States
dollars to leading European banks for a three-month period beginning on the
first day of such Interest Period. If at least two such rates are so provided,
LIBOR for the Interest Period will be the arithmetic mean of such rates. If
fewer than two such rates are so provided, then LIBOR for the Interest Period
will be LIBOR in effect with respect to the immediately preceding Interest
Period.
"London Banking Day" is any day in which dealings in United States dollars
are transacted or, with respect to any future date, are expected to be
transacted in the London interbank market.
"Representative Amount" means a principal amount of not less than U.S.
$1,000,000 for a single transaction in the relevant market at the relevant time.
"Telerate Page 3750" means the display designated as "Page 3750" on the
Moneyline Telerate service (or such other page as may replace Page 3750 on that
service).
A-3
Promptly upon making its determination of the interest rate in effect for
any Interest Period, the Calculation Agent shall notify the Company and the
Trustee, if the Trustee is not then serving as the Calculation Agent, of the
interest rate for such Interest Period. The interest rate determined by the
Calculation Agent, absent manifest error, shall be binding and conclusive upon
the beneficial owners and Holders of the Securities, the Company and the
Trustee. Upon the request of a Holder of Securities, the Calculation Agent will
provide to such Holder the interest rate in effect with respect to the
Securities on the date of such request.
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 New York, 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 by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
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.
A-4
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed.
BOWATER INCORPORATED
By:
------------------------------------
Name:
Title:
By:
------------------------------------
Name:
Title:
Date: [ ]
----------
This is one of the Securities referred to in the within-mentioned
Indenture.
Date: [---------] THE BANK OF NEW YORK, as Trustee
By:
----------------------------------
Authorized Signatory
A-6
(Reverse Side of Security)
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, dated as of March 17, 2004, as supplemented (herein
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 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.
Capitalized terms used and not otherwise defined in this Security shall have the
meanings provided in the Indenture.
This Security is one of the series designated on the face hereof, initially
limited in aggregate principal amount to $250,000,000. The Company may at any
time issue additional securities under the Indenture in unlimited amounts having
the same terms as the Securities.
The Securities of this series are subject to redemption, as a whole or from
time to time in part, on and after March 15, 2006, upon not less than 30 nor
more than 60 days' notice mailed to each Holder of Securities to be redeemed at
such Holder's address as it appears in the Securities Register, at a redemption
price equal to the accrued and unpaid interest on the Securities so redeemed to
the date fixed for redemption plus: (i)102% of the aggregate Outstanding
principal amount thereof, if redeemed during the twelve-month period commencing
on March 15, 2006; (ii) 101% of the aggregate Outstanding principal amount
thereof, if redeemed during the twelve-month period commencing on March 15,
2007; and (iii)100% of the aggregate Outstanding principal amount thereof, if
redeemed on or after March 15, 2008.
This Security is not defeasible in whole or in part.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of 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 50% in principal amount of the Securities at the time
Outstanding of each 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.
A-7
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 25% in principal amount
of the Securities of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee indemnity reasonably satisfactory to
the Trustee, and the Trustee shall not have received from the Holders of a
majority in principal amount of Securities of this series at the time
Outstanding 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
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.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Security is registrable in the Security Register,
upon surrender of this Security for registration of transfer at the office or
agency of the Company in any place where the principal of and any premium and
interest on this Security are payable, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or his attorney duly
authorized in writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
The Securities of this series are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple 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 of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made to a Holder 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.
Prior to due presentment of this Security for registration of transfer, 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 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.
A-8
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Pursuant to a recommendation promulgated by the Committee on Uniform Note
Identification Procedures, the Company has caused CUSIP numbers to be printed on
the Notes. No representation is made as to the accuracy of such numbers as
printed on the Notes, and reliance may be placed only on the other
identification numbers placed thereon.
This Security shall be governed by and construed in accordance with the
laws of the State of New York without regard to conflicts of law principles
thereof (other than Section 5-1401 of the General Obligations Law).
A-9
B-1
EXHIBIT B
FORM OF CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Date: [-----------] THE BANK OF NEW YORK, as Trustee
By:
-------------------------------
Authorized Signatory