Exhibit 4.5
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FOURTH SUPPLEMENTAL INDENTURE
dated as of January 15, 2003
to
INDENTURE
dated as of November 1, 2000
AMEREN ENERGY GENERATING COMPANY
to
THE BANK OF NEW YORK, as Trustee
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$275,000,000 7.95% Senior Notes, Series F Due 2032
FOURTH SUPPLEMENTAL INDENTURE (the "Fourth Supplemental Indenture"), dated
as of January 15, 2003, to the Indenture, dated as of November 1, 2000 (the
"Original Indenture"), from AMEREN ENERGY GENERATING COMPANY, an Illinois
corporation (together with its successors and assigns, the "Issuer"), its
principal office and mailing address being at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇.▇. ▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, to THE BANK OF NEW YORK,
as trustee (the "Trustee"), its office and mailing address being at ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
W I T N E S S E T H:
WHEREAS, the Issuer and the Trustee have heretofore executed and delivered
the Original Indenture to provide for the issuance from time to time of the
Issuer's Securities (as defined in the Original Indenture) to be issued in one
or more series;
WHEREAS, Sections 2.1 and 7.1 of the Original Indenture provide, among
other things, that the Issuer and the Trustee may enter into indentures
supplemental to the Original Indenture for, among other things, the purpose of
establishing the designation, form, terms and provisions of Securities of any
series as permitted by Sections 2.1 and 7.1 of the Original Indenture;
WHEREAS, the Issuer has heretofore issued a series of Securities designated
7.95% Senior Notes, Series E due 2032 (the "Old Notes");
WHEREAS, the Old Notes were sold to a group consisting of ▇▇▇▇▇▇ Brothers
Inc., Banc One Capital Markets, Inc., BNY Capital Markets, Inc., Credit Suisse
First Boston Corporation and Westdeutsche Landesbank Girozentrale, London Branch
(collectively, the "Initial Purchasers");
WHEREAS, sales and transfers of the Old Notes are restricted to qualified
institutional investors pursuant to Rule 144A under the Securities Act of 1933,
as amended (the "Securities Act") and qualified buyers outside the United States
pursuant to Regulation S under the Securities Act;
WHEREAS, the Issuer and the Initial Purchasers entered into a Registration
Rights Agreement, dated as of June 6, 2002 (the "Registration Rights
Agreement"), pursuant to which the Issuer agreed, for the benefit of the Holders
of the Old Notes, to file a registration statement relating to an exchange offer
allowing the Holders of the Old Notes to exchange their transfer restricted Old
Notes for a new series of notes that are identical in all material respects to
the Old Notes except that the new series of notes will not contain the transfer
restrictions or registration rights (and certain related liquidated damages
provisions) applicable to the Old Notes and the new series of notes would be
registered under the Securities Act;
WHEREAS, the Issuer (i) desires the issuance of a series of Securities to
be designated as hereinafter provided and (ii) has requested the Trustee to
enter into this Fourth Supplemental Indenture for the purpose of establishing
the designation, form, terms and provisions of the Securities of such series;
WHEREAS, all action on the part of the Issuer necessary to authorize the
issuance of said Securities under the Original Indenture and this Fourth
Supplemental Indenture (the Original
Indenture, as heretofore amended and supplemented and as supplemented by this
Fourth Supplemental Indenture, being hereinafter called the "Indenture") has
been duly taken; and
WHEREAS, all acts and things necessary to make said Securities, when
executed by the Issuer and authenticated and delivered by the Trustee as
provided in the Original Indenture, the legal, valid and binding obligations of
the Issuer, and to constitute these presents a valid and binding supplemental
indenture according to its terms, have been done and performed, and the
execution of this Fourth Supplemental Indenture and the creation and issuance
under the Indenture of said Securities have in all respects been duly
authorized, and the Issuer, in the exercise of the legal right and power vested
in it, executes this Fourth Supplemental Indenture and proposes to create,
execute, issue and deliver said Securities;
NOW, THEREFORE, in order to establish the designation, form, terms and
provisions of, and to authorize the authentication and delivery of, said
Securities, and in consideration of the acceptance of said Securities by the
Holders thereof and of other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
DEFINITIONS
Capitalized terms not otherwise defined herein shall have the meanings set
forth in the Original Indenture.
ARTICLE II
THE TERMS OF THE NOTES
Section 2.1 Terms of 7.95% Senior Notes, Series F due 2032. There is
hereby created a series of Securities designated: 7.95% Senior Notes, Series F
due 2032 (the "Exchange Notes"). The Exchange Notes shall be limited to
$275,000,000 aggregate principal amount outstanding less the amount of any Old
Notes which remain outstanding and un-exchanged following completion of the
Issuer's exchange offer for the Old Notes as contemplated by its prospectus
dated November 18, 2002 (the "Prospectus"). Upon delivery of a written order to
the Trustee in accordance with the provisions of Section 2.1 of the Original
Indenture, the Trustee shall authenticate and deliver the Exchange Notes. Such
written order shall specify the amount of the Exchange Notes to be authenticated
and the date on which such Exchange Notes are to be authenticated, which will be
the date the Exchange Notes are issued in exchange for the Old Notes. The
Exchange Notes shall be substantially in the form of Exhibit A hereto.
Section 2.2 Terms of Exchange Notes Issued Hereunder in Global Form.
(a) So long as The Depository Trust Company ("DTC") or its nominee is
the registered owner or Holder of a Global Security, DTC or its nominee, as the
case may be, will be considered the sole owner or Holder of the Exchange Notes
represented by such Global Security for all purposes under the Original
Indenture and under the Exchange Notes. No beneficial owner of an interest in a
Global Security will be able to transfer that interest except in
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accordance with DTC's applicable procedures unless the Issuer shall issue
certificates for the Exchange Notes in definitive registered form.
(b) All payments of the principal of, and interest and additional
amounts and premium, if any, on, a Global Security will be made to DTC or its
nominees, as the registered owners thereof.
(c) Transfers between participants in DTC will be effected in the
ordinary way in accordance with DTC rules and will be settled in same-day funds.
(d) Certificated definitive Exchange Notes may be in denominations of
less than $100,000 to the extent any redemption has reduced such Holder's
aggregate holding of such Exchange Notes to less than $100,000.
(e) If any redemption affecting the Exchange Notes would result in
the amount to be paid to a Holder of such affected Exchange Note in respect of
such redemption not to equal $1,000 or an integral multiple thereof, the Issuer
shall instruct the Trustee to round the amount to be paid to such Holder to the
nearest $1,000 so that the amount to be paid to such Holder equals $1,000 or an
integral multiple thereof.
(f) Except in the limited circumstances described under Section
2.2(g) below, beneficial interest in a Global Security will only be recorded by
book-entry and owners of beneficial interest in a Global Security will not be
entitled to receive physical delivery of certificates representing Securities.
(g) If (i) the Issuer notifies the Trustee in writing that DTC or any
successor depository is unwilling or unable to continue as a depository for a
Global Security or ceases to be a "clearing agency" registered under the
Exchange Act and a successor depository is not appointed by the Issuer within 90
days of such notice or (ii) during an Event of Default, a holder of a beneficial
interest in a Global Security requests the issuance of certificated Securities
representing such holder's interest then, the Issuer shall issue certificates
for the Securities in definitive registered form substantially in the form
attached hereto in exchange for the Global Security outstanding.
(h) The holder of a certificated definitive registered Security may
transfer such Security in whole or in part by surrendering it at the Corporate
Trust Office of the Trustee in accordance with the terms of the Indenture and
such Security.
Section 2.3 Interest, Principal, Maturity Date and Regular Record Date.
Each Exchange Note shall bear interest on the unpaid principal amount thereof
from time to time outstanding from the last interest payment date through which
interest shall have been paid on the Old Note for which it is exchanged, as the
case may be, until such amount is paid in full at the rate of interest set forth
in the form of such Exchange Note attached hereto. The principal amount of each
Exchange Note shall be due and payable at maturity as set forth in the form of
Exchange Note attached hereto.
Payment of principal of, premium, if any, and interest on the Exchange
Notes shall be made, as provided in Sections 2.4, 2.10, 3.1, 3.2 and 3.4 of the
Original Indenture except that the
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final payment of principal of the Exchange Notes shall be made on the due date
therefor to the account of the Holder as such account shall appear in the
Security Register, which amount shall be payable upon presentation and surrender
of such Exchange Note at the office of the Issuer; provided, that for so long as
the Exchange Notes are issued in book-entry form and in all cases where Exchange
Notes are held by DTC, payments of principal and interest shall be made in
immediately available funds by wire transfer to DTC or its nominee.
The Exchange Notes shall mature on the date and in the amounts set forth in
the form of Exchange Note attached hereto.
The record date applicable to the Exchange Notes issued hereunder shall be
as set forth in the form of Exchange Note attached hereto.
Section 2.4 Redemption.
(a) Optional Redemption. The Exchange Notes issued hereunder are
subject to optional redemption, in whole or in part, at any time at the option
of the Issuer at a redemption price equal to the outstanding principal amount of
the Exchange Notes being so redeemed plus accrued and unpaid interest thereon to
the date fixed for redemption together with the Applicable Premium applicable
thereto.
(b) Applicable Premium. As used herein, "Applicable Premium" means an
amount calculated as of the date (the "Determination Date") fixed for the
redemption of the Exchange Notes as follows:
(i) the average life of the remaining scheduled payments of principal
in respect of Outstanding Exchange Notes (the "Remaining Average
Life") shall be calculated as of the Determination Date;
(ii) the yield to maturity calculated as of a date not more than five
days prior to the Determination Date for the United States
Treasury security having an average life equal to the Remaining
Average Life and trading in the secondary market at the price
closest to the principal amount thereof (the "Primary Issue");
provided, however, that if no United States Treasury security has
an average life equal to the Remaining Average Life, the yields
(the "Other Yields") for the two maturities of United States
treasury securities having average lives most closely
corresponding to such Remaining Average Life and trading in the
secondary market at the price closest to the principal amount
thereof shall be calculated, and the yield to maturity for the
Primary Issue shall be the yield interpolated or extrapolated
from such Other Yields on a straight line basis, rounding in each
of such relevant periods to the nearest month;
(iii)the discounted present value of the then remaining scheduled
payments of principal and interest (but excluding that portion of
any scheduled payment of interest that is actually due and paid
on the Determination Date) in respect of the Outstanding Exchange
Notes shall be calculated as of the Determination Date using a
discount factor equal to the sum of (x) the yield to maturity for
the Primary Issue, plus (y) 37.5 basis points; and
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(iv) the amount of Applicable Premium in respect of the Exchange Notes
to be redeemed shall be an amount equal to (x) the discounted
present value of such Exchange Notes to be redeemed determined in
accordance with clause (iii) above, minus (y) the unpaid
principal amount of such Exchange Notes; provided, however, that
the Applicable Premium shall not be less than zero; and
(v) such calculation shall be made by an Investment Banker.
Section 2.5 Registered Notes Issued Upon Exchange. The Exchange Notes
shall be registered under the Securities Act and the transfer restrictions set
forth in Section 2.6 of the Original Indenture shall not apply to the transfer
of the Exchange Notes and the Legend referred to in Section 2.6 of the Original
Indenture shall not be required to be placed on each certificate representing
the Exchange Notes. Pursuant to the Issuer's written order to the Trustee in
accordance with the provisions of Section 2.1 of the Original Indenture, the
Issuer shall execute and the Trustee shall authenticate and deliver Exchange
Notes in denominations of $100,000 original principal amount in exchange for
each $100,000 principal amount of outstanding Old Notes (or such smaller
denomination as approved by the Issuer and the Trustee), and in integral
multiples of $1,000 original principal amount in exchange for each $1,000 in
excess thereof if properly tendered by the Holder thereof together with a
completed letter of transmittal in the form attached hereto as Exhibit B which
is incorporated herein by this reference. Upon the surrender of any Old Notes as
contemplated herein, such Old Notes shall be cancelled by the Trustee and no
further amounts shall be due and payable on such Old Notes (except that any
accrued but unpaid liquidated damages due pursuant to the Registration Rights
Agreement shall remain due and payable) and any interest accrued and unpaid on
the Old Notes through the date of such exchange, which shall be the date of
authentication of the Exchange Notes, shall from and after such exchange be
represented by the Exchange Notes and shall be payable as provided in the
Exchange Notes. Interest shall accrue on the Exchange Notes as described in
Section 2.3 hereof; provided that the amount payable on the Exchange Notes
pursuant to Section 2.3 will be offset by the amount of interest accrued on the
Old Notes prior to the date of exchange which is thereafter deemed payable on
the Exchange Notes under this Section 2.5.
Section 2.6 Treatment of Series. For all purposes of the Indenture the
Old Notes and the Exchange Notes shall be treated as the same series and the
Holders of the Old Notes and the Exchange Notes shall vote and consent together
on all matters as one class and none of the Holders of the Old Notes or the
Exchange Notes shall have the right to vote or consent as a separate class on
any matter.
Section 2.7 Amendment for Benefit of Exchange Notes. The Indenture is
hereby amended, pursuant to Section 7.1(d) of the Indenture for the benefit of
the holders of the Exchange Notes and for so long as the Exchange Notes are
outstanding, as follows:
(a) Section 1.1 of the Indenture is amended by adding to the
definitions the following: "'Existing Generating Assets' means the coal plants
and gas-fired units owned by the Issuer as of the date of issuance of the
$275,000,000 7.95% Senior Notes, Series E due 2032."
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(b) Section 3.9 of the Indenture is amended to delete the words
"Initial Generation Assets" and insert in lieu thereof the words "Initial
Generating Assets or Existing Generating Assets."
ARTICLE III
MISCELLANEOUS
Section 3.1 Execution of Supplemental Indenture. This Fourth Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture and, as provided in the Original Indenture, this Fourth
Supplemental Indenture forms a part thereof.
Section 3.2 Concerning the Trustee. The Trustee shall not be responsible
in any manner for or with respect to the validity or sufficiency of this Fourth
Supplemental Indenture, or the due execution hereof by the Issuer, or for or
with respect to the recitals and statements contained herein, all of which
recitals and statements are made solely by the Issuer.
Section 3.3 Counterparts. This Fourth Supplemental Indenture may be
executed in any number of counterparts, each of which when so executed shall be
deemed to be an original; but all such counterparts shall together constitute
but one and the same instrument.
Section 3.4 GOVERNING LAW. THIS FOURTH SUPPLEMENTAL INDENTURE AND EACH
EXCHANGE NOTE ISSUED HEREUNDER SHALL, PURSUANT TO SECTION 5-1401 OF THE NEW YORK
GENERAL OBLIGATIONS LAW, BE GOVERNED BY THE LAW OF THE STATE OF NEW YORK,
WITHOUT REFERENCE TO THE CHOICE OF LAW PROVISIONS THEREOF (OTHER THAN SUCH
SECTION 5-1401).
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IN WITNESS WHEREOF, the parties hereto have caused this Fourth Supplemental
Indenture to be duly executed as of January 15, 2003.
AMEREN ENERGY GENERATING
COMPANY, as Issuer
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice President and Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇▇
Title: As Agent for
EXHIBIT A
FORM OF SECURITY
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IN EXCHANGE FOR THIS
CERTIFICATE OR ANY PORTION HEREOF IS REGISTERED IN THE NAME OF CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY OR SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO.), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE
BY OR TO ANY PERSON OTHER THAN THE DEPOSITORY TRUST COMPANY OR A NOMINEE THEREOF
IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN SECTION 2.6 OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[FORM OF FACE OF EXCHANGE NOTE]
CUSIP [ ][ ][ ]
[Common Code]
[ISIN][ ]
No.
$
AMEREN ENERGY GENERATING COMPANY
7.95% Senior Notes, Series F Due 2032
Ameren Energy Generating Company (the "Issuer"), for value received hereby
promises to pay to or registered assigns the principal sum of
Dollars at the Issuer's office or agency for said purpose as
provided in the Indenture referred to herein, on June 1, 2032 in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, and to pay interest,
semi-annually in arrears on June 1 and December 1 of each year, commencing June
1, 2003, on said principal sum in like coin or currency at the rate per annum
set forth above at said offices or agencies from the last interest payment date
through which interest shall have been paid on the Old Note (as hereinafter
defined) for which this Senior Note is exchanged. Notwithstanding the
foregoing, if the date hereof is after May 15 or November 15, as the case may
be, and before the following June 1 or December 1, this Senior Note shall bear
interest from such June 1 or December 1; provided, that if the Issuer shall
default in the payment of interest due on such June 1 or December 1, then this
Senior Note shall bear interest from the next preceding June 1 or December 1 to
which interest on the Senior Notes of this series has been paid or duly provided
for. The interest so payable on any June 1 or December 1 will, except as
otherwise provided in the Indenture referred to on the reverse hereof, be paid
to the Person in whose name this Senior Note is registered at the close of
business on the 15th day of May or the 15th day of November preceding such June
1 or December 1, whether or not such day is a Business Day; provided, that
principal, premium, if any, and interest shall be paid by mailing on the
interest payment date a check for such to or upon the written order of the
registered Holders of Senior Notes of this series entitled thereto at their last
address as it appears on the Senior Notes Register or, upon written application
to the Trustee by a Holder of $1,000,000 or more in aggregate principal amount
of Senior Notes of this series, by wire transfer on the interest payment date of
immediately available funds to an account maintained by such Holder with a bank
or other financial institution. Interest on this Senior Note shall be computed
and accrue on the basis of a 360-day year comprised of twelve 30-day months and
otherwise as provided in the Indenture. Additional Interest shall accrue on this
Senior Note, as provided for in the Registration Rights Agreement, if the Issuer
ceases to maintain its status as a reporting company under the Exchange Act
whether or not the Securities and Exchange Commission (the "SEC") rules and
regulations require the Issuer to maintain that status (unless the SEC will not
accept the filing of the applicable reports).
Interest on overdue principal and (to the extent permitted by applicable
law) on overdue installments of interest (including without limitation during
the 5-day period referred to in Section 4.1(b) of the Indenture) shall accrue at
the rate per annum set forth above.
The Senior Notes of this series are payable on a parity basis with the
Issuer's 7.95% Senior Notes, Series E Due 2032 (the "Old Notes") issued under
the Indenture and the Third Supplemental Indenture, dated as of June 1, 2002 in
the aggregate principal amount of $275,000,000. The Senior Notes of this series
are being issued in exchange for a like principal amount of Old Notes and the
combined aggregate principal amount of the Senior Notes of this series and the
Old Notes outstanding at any one time is limited to $275,000,000. Pursuant to
the Indenture, the Old Notes and the Senior Notes of this series shall be
treated as the same series and the holders of the Old Notes and the Senior Notes
of this series shall vote and consent together on all matters as one class and
none of the holders of the Old Notes or the Senior Notes of this series shall
have the right to vote or consent as a separate class on any matter.
Reference is made to the further provisions set forth on the reverse
hereof. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Senior Note shall not be entitled to any benefit under the Indenture,
or be valid or obligatory, until the certificate of authentication hereon shall
have been duly signed by the Trustee acting under the Indenture.
IN WITNESS WHEREOF, the Issuer has caused this instrument to be duly
executed.
AMEREN ENERGY GENERATING COMPANY
By:
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Name:
Title:
(SEAL)
Attested:
By:
----------------------------
Name:
Title:
[FORM OF REVERSE OF EXCHANGE NOTE]
AMEREN ENERGY GENERATING COMPANY
7.95% Senior Notes, Series F Due 2032
This Senior Note is one of a duly authorized issue of debt securities of
the Issuer, limited to the aggregate principal amount of $275,000,000 (except as
otherwise provided in the Indenture mentioned below), issued or to be issued
pursuant to an Indenture dated as of November 1, 2000 as supplemented by the
Fourth Supplemental Indenture dated as of January 15, 2003 (as so supplemented,
the "Indenture"), duly executed and delivered by the Issuer to the Trustee.
Reference is hereby made to the Indenture and all indentures supplemental
thereto for a description of the rights, limitations of rights, obligations,
duties and immunities thereunder of the Trustee, the Issuer and the Holders (the
words "Holders" or "Holder" meaning the registered holders or registered holder)
of the Senior Notes. Capitalized terms used herein, but not otherwise defined
herein, shall have the meanings assigned to them in the Indenture.
In case an Event of Default shall have occurred and be continuing, the
principal of all the Securities may be declared due and payable, in the manner
and with the effect, and subject to the conditions, provided in the Indenture.
The Indenture provides that in certain events such declaration and its
consequences may be waived by the Holders of a majority in aggregate principal
amount of the Securities then Outstanding and that, prior to any such
declaration, such Holders may waive any past default under the Indenture and its
consequences except a default in the payment of principal of or premium, if any,
or interest on any of the Securities and as otherwise provided in the Indenture.
Any such consent or waiver by the Holder of this Senior Note (unless revoked as
provided in the Indenture) shall be conclusive and binding upon such Holder and
upon all future Holders and owners of this Senior Note and any Security which
may be issued in exchange or substitution hereof, whether or not any notation
thereof is made upon this Senior Note or such other Security.
The Indenture permits the Issuer and the Trustee, with the consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities of all series at the time Outstanding considered as one class,
evidenced as in the Indenture provided, to modify the Indenture or any
supplemental indentures or the rights of the Holders of the Senior Notes;
provided that no such modification shall (a) change the Stated Maturity of the
principal of, or any installment of principal of or interest on, any Security,
or reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption thereof
or impair or affect the right of any Holder of the Security to institute suit
for the payment thereof without the consent of the Holder of each Security so
affected; or (b)(i) reduce the aforesaid percentage of Securities, the consent
of the Holders of which is required for any such modification or the percentage
of Securities, the consent of Holders of which is required for any waiver
provided for in the Indenture; (ii) change any obligation of the Issuer to
maintain an office or agency for payment of and transfer and exchange of the
Securities; or (iii) make certain changes to provisions relating to waiver or to
the provision for supplementing the Indenture; in each case without the consent
of the Holders of all Securities then Outstanding.
No reference herein to the Indenture and no provision of this Senior Note
or of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and premium, if any, and
interest on this Senior Note at the place, times, and rate, and in the currency,
herein prescribed.
The Senior Notes are issuable only as registered Senior Notes without
coupons in denominations of $100,000 (or such smaller denomination as approved
by the Issuer and the Trustee) and any integral multiple of $1,000 in excess
thereof.
At the office or agency of the Issuer referred to on the face hereof and in
the manner and subject to the limitations provided in the Indenture, Senior
Notes may be presented for exchange for a like aggregate principal amount of
Senior Notes of other authorized denominations.
Upon due presentment for registration of transfer of this Senior Note at
the above-mentioned office or agency of the Issuer, a new Senior Note or Senior
Notes of authorized denominations, for a like aggregate principal amount, will
be issued to the transferee as provided in the Indenture. No service charge
shall be made for any such transfer, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
relation thereto.
The Senior Notes may be redeemed in whole or in part (if in part, by lot or
by such other method as the Trustee shall deem fair or appropriate) prior to
Stated Maturity at the option of the Issuer, upon mailing a notice of such
redemption not less than 30 nor more than 60 days prior to the date fixed for
redemption to the Holders of Senior Notes, all as provided in the Indenture, at
a redemption price equal to the principal amount thereof plus accrued and unpaid
interest thereon, if any, to the date of redemption, plus the Applicable
Premium.
Subject to payment by the Issuer of a sum sufficient to pay the amount due
on redemption, interest on this Senior Note shall cease to accrue upon the date
duly fixed for redemption of this Senior Note.
The Issuer, the Trustee, and any authorized agent of the Issuer or the
Trustee, may deem and treat the registered Holder hereof as the absolute owner
of this Senior Note (whether or not this Senior Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon made by anyone
other than the Issuer or the Trustee or any authorized agent of the Issuer or
the Trustee), for the purpose of receiving payment of, or on account of, the
principal hereof and premium, if any, and, subject to the provisions on the face
hereof, interest hereon and for all other purposes, and neither the Issuer nor
the Trustee nor any authorized agent of the Issuer or the Trustee shall be
affected by any notice to the contrary.
No recourse shall be had for the payment of the principal of, or premium,
if any, or the interest on this Senior Note, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor corporation,
whether by virtue of any constitution, statute or rule of law or by the
enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the
consideration for the issue hereof, expressly waived and released.
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
Dated: January ____, 2003
This is one of the Senior Notes referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK, as Trustee
By:
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Authorized Signatory
[FORM OF ASSIGNMENT]
I or we assign and transfer this Security to:
(Insert assignee's social security or tax I.D. number)
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(Print or type name, address and zip code of assignee)
and irrevocably appoint:
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Agent to transfer this Security on the books of the Issuer. The Agent may
substitute another to act for him.
Date: Your Signature:
----------------------- -----------------------------
(Sign exactly as your name
appears on the other side of
this Security)
*Signature Guarantee:________________________
*Signatures must be guaranteed by an "eligible guarantor
institution" meeting the requirements of the Registrar, which
requirements include membership or participation in STAMP or such
other "signature guarantee program" as may be determined by the
Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934.
EXHIBIT B
LETTER OF TRANSMITTAL
Attached hereto