Exhibit 4(wwww)
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___% Debenture Due _____
No. R-_ $__________
_______________________, a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture hereinafter referred to),
for value received, hereby promises to pay to XXXXXXX XXXXX PREFERRED FUNDING
VI, L.P., or registered assigns, the principal sum of DOLLARS ($_____________)
on ,__________ __, ____ and to pay interest on said principal sum from _______
__, 1999 or from the most recent interest payment date (each such date, an
"Interest Payment Date") to which interest has been paid or duly provided for,
quarterly (subject to deferral as set forth herein) in arrears on March 30, June
30, September 30 and December 30 of each year, commencing ________ , ____, at
the rate of ___% per annum plus Additional Interest, if any, until the principal
hereof shall have become due and payable, and on any overdue principal. The
amount of interest payable for any period will be computed on the basis of a
360-day year of twelve 30-day months. In the event that any date on which
interest is payable on this Security is not a Business Day, then a payment of
the interest payable on such date will be made on the next succeeding day which
is a Business Day (and without any interest or other payment in respect of any
such delay), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on the date the
payment was originally payable. A "Business Day" shall mean any day other than a
day on which banking institutions in The City of New York are authorized or
required by law to close. The interest installment so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in the
Indenture, be paid to the Person in whose name this Security (or one or more
Predecessor Securities, as defined in the Indenture) 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 Business Day next preceding such Interest
Payment Date. Any such interest installment not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
The Company shall have the right at any time during the term of this
Security, from time to time, to extend the interest payment period of such
Security for a period not exceeding six consecutive quarters from the date of
issue or the most recent date that interest has been paid or been duly provided
for (an "Extension Period"). During any Extension Period,
interest will compound quarterly and the Company shall have the right to make
partial payments of interest on any Interest Payment Date. At the end of any
Extension Period the Company shall pay all interest then accrued and unpaid
(together with Additional Interest thereon to the extent that payment of such
interest is permitted by applicable law). "Additional Interest" means
interest that shall accrue on any interest on the Securities that is in
arrears for more than one quarter or not paid during an Extension Period,
which in either case shall accrue at % per annum compounded quarterly. Prior
to the termination of any such Extension Period, the Company may further
extend the interest payment period, provided that such Extension Period
together with all such previous and further extensions thereof shall not
exceed six consecutive quarters or extend beyond the Maturity of this
Security. Upon the termination of any Extension Period and upon the payment
of all accrued and unpaid interest and any Additional Interest then due, the
Company may select a new Extension Period, subject to the foregoing
requirements. No interest shall be due and payable during an Extension Period
except at the end thereof and no default under this Security or Event of
Default shall be deemed to occur solely as a result of an Extension Period.
The Company shall give the Holder of this Security and the Trustee notice of
its selection of an Extension Period at least one Business Day prior to the
earlier of (i) the Interest Payment Date or (ii) the date Xxxxxxx Xxxxx
Preferred Capital Trust VI is required to give notice to the New York Stock
Exchange, Inc. or other applicable self-regulatory organization or to holders
of the Trust Preferred Securities of the record date or the date such
distributions are payable, but in any event not less than one Business Day
prior to such record date.
During any Extension Period or during the continuance of an Event of
Default, the Company shall not declare or pay dividends on, make distributions
with respect to, or redeem, purchase or acquire, or make a liquidation payment
with respect to any of its capital stock or comparable equity interest (except
for dividends or distributions in shares of, or options, warrants or rights to
subscribe for or purchase shares of, its capital stock, and conversions or
exchanges of common stock of one class into common stock of another class).
Payment of the principal of 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 (i) by check mailed to the address of the Person entitled thereto as such
address shall appear in the Security Register or (ii) by wire transfer in
immediately available funds at such place and to such account as may be
designated by the Person entitled thereto as specified in the Security Register.
The indebtedness evidenced by this Security is, to the extent
provided in the Affiliate Debenture Guarantee Agreement (the "Guarantee"),
guaranteed by Xxxxxxx Xxxxx & Co., Inc., as guarantor of this Security, and any
successor thereto (the "Guarantor"). Each Holder of this Security, by accepting
the same, agrees to and shall be subject to the subordination provisions and
other terms of the Guarantee.
Reference is hereby made to the further provisions of the Indenture
summarized on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
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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, _____________________ has caused this instrument
to be duly executed.
Dated: ________ __, ____
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By:
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Name:
Title:
Attest:
By:
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Name: Xxxxxxxx X. Xxxx, Xx.
Title: Assistant Secretary
[SEAL]
[authentication]
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Reverse of Security
This Security is one of a duly authorized issue of Securities of the
Company, designated as its ____% Debentures Due ____ (herein called the
"Securities"), limited in aggregate principal amount to $___________ issued
under an Indenture, dated as of ________ __, ____ (herein called the
"Indenture"), between the Company and The Chase Manhattan Bank, as Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Trustee, the Company and the
Holders of the Securities, and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
At any time on or after _________ __, ____, the Company shall have
the right to redeem the Securities, in whole or in part, from time to time, at a
Redemption Price equal to 100% of the principal amount of Securities to be
redeemed plus accrued but unpaid interest, including any Additional Interest, if
any, to the Redemption Date.
If, at any time, a Partnership Tax Event or a Partnership Investment
Company Event (each a "Partnership Special Event") shall occur and be
continuing, the Company may, within 90 days following the occurrence of such
Partnership Special Event, elect to redeem the Securities in whole (but not in
part), upon not less than 30 or more than 60 days notice at the Redemption
Price, provided that, if at the time there is available to the Company or the
Partnership the opportunity to eliminate, within such 90-day period, the
Partnership Special Event by taking some ministerial action, such as filing a
form or making an election, or pursuing some other similar reasonable such
measure that in the sole judgment of the Company has or will cause no adverse
effect on the Partnership, the Trust or the Company, and will involve no
material cost, the Company will pursue such measure in lieu of redemption.
"Partnership Investment Company Event" means that Xxxxxxx Xxxxx &
Co., Inc., in its capacity as general partner of Xxxxxxx Xxxxx Preferred Funding
VI, L.P. (the "Partnership"), shall have requested and received an opinion of
nationally recognized independent legal counsel experienced in such matters to
the effect that as a result of the occurrence on or after _______ __, 1999 of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority, the Partnership is or will be considered an "investment company"
which is required to be registered under the Investment Company Act of 1940.
"Partnership Tax Event" means that Xxxxxxx Xxxxx & Co., Inc. in its
capacity as general partner of the Partnership, shall have requested and
received an opinion of nationally recognized independent tax counsel experienced
in such matters to the effect that there has been a Tax Action which affects any
of the events described in (i) through (iii) below and that there is more than
an insubstantial risk that (i) the Partnership is, or will be subject to United
States federal income tax with respect to income accrued or received on the
Affiliate Investment Instruments or the Eligible Debt Securities (each as
defined in the Limited Partnership
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Agreement), (ii) the Partnership is, or will be subject to more than a de
minimis amount of other taxes, duties or other governmental charges or (iii)
interest payable by one or more of the obligors with respect to the Affiliate
Investment Instruments (as defined in the Amended and Restated Agreement of
Limited Partnership of Xxxxxxx Xxxxx Preferred Funding VI, L.P.) to the
Partnership is not, or will not be, deductible by the Company for United States
federal income tax purposes.
"Tax Action" means (a) an amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of the United States
or any political subdivision or taxing authority thereof or therein, (b) a
judicial decision interpreting, applying or clarifying such laws or regulations,
(c) an administrative pronouncement or action that represents an official
position (including a clarification of an official position) of the governmental
authority or regulatory body making such administrative pronouncement or taking
such action, or (d) a threatened challenge asserted in connection with an audit
of the Company or any of its subsidiaries, the Partnership, or the Trust, or a
threatened challenge asserted in writing against any other taxpayer that has
raised capital through the issuance of securities that substantially similar to
the Securities, the Partnership Preferred Securities, or the Trust Preferred
Securities, which amendment or change is adopted or which decision,
pronouncement or proposed change is announced or which action, clarification or
challenge occurs on or after the date of the prospectus related to the issuance
of the Trust Preferred Securities.
"Limited Partnership Agreement" means the amended and restated
agreement of Limited Partnership, dated as of ________ __, 1999, of the
Partnership as amended, modified or otherwise supplemented from time to time. If
the Securities are only partially redeemed by the Company, the Securities will
be redeemed pro rata, by lot or in such other manner as the Trustee shall deem
appropriate and fair in its discretion and that may provide for the selection of
a portion or portions (equal to twenty-five U.S. dollars ($25) or any integral
multiple thereof) of the principal amount of any Security.
In the event of redemption of this Security in part only, a new
Security or Securities for the unredeemed portion hereof will be issued in the
name of the Holder hereof upon the cancellation hereof.
If an Event of Default with respect to the Securities shall occur
and be continuing, the principal of the Securities may be declared due and
payable in the manner, with the effect and subject to the conditions provided in
the Indenture.
The Indenture contains provisions for satisfaction and discharge at
any time of the entire indebtedness of this Security upon compliance by the
Company with certain conditions set forth in the Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities, to modify the Indenture in a manner
affecting the rights of the Holders of the Securities; provided that no such
modification may, without the consent of the Holder of each Outstanding
Security, (i) extend the fixed maturity of the Securities, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment of
interest thereon, or reduce any premium
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payable upon the redemption thereof, or (ii) reduce the percentage of principal
amount of the Securities, the Holders of which are required to consent to any
such modification of the Indenture. The Indenture also contains provisions
permitting Holders of specified percentages in principal amount of the
Securities at the time Outstanding, on behalf of the Holders of all Securities,
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.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of and
interest on this Security at the times, place and rate, and in the coin or
currency, herein prescribed.
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 New York, New York, 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 authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees. 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.
Prior to due presentment of this Security for registration of
transfer, the Company, the Guarantor, the Trustee and any of their respective
agents may treat the Person in whose name this Security is registered as the
owner hereof for all purposes, whether or not this Security shall be overdue,
and neither the Company, the Guarantor, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Securities are issuable only in registered form without coupons
in denominations of $25 and any integral multiple thereof. As provided in the
Indenture and subject to certain limitations therein set forth, Securities are
exchangeable for a like aggregate principal amount of Securities of a different
authorized denomination, as requested by the Holder surrendering the same.
The obligations under this Security for the due and punctual payment
of the principal of (and premium, if any), interest on and any Additional
Amounts payable pursuant hereto with respect to this Security, according to its
tenor, and the due and punctual performance and observance of all of the
covenants and conditions of this Security and the Indenture to be performed by
the Company may be assumed, in whole or in part, by an Affiliate of the Company
that, as of the end of the most recent fiscal year for which consolidated
financial statements of the Company and such Affiliate are available, has a
Consolidated Net Worth at least equal to the Consolidated Net Worth of the
Company. For purposes of this paragraph, "Consolidated Net
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Worth" of an entity shall mean (a) the aggregate of capital stock, additional
paid-in capital and retained earnings (or minus accumulated deficit) of an
entity and its consolidated subsidiaries, minus (b) treasury stock of the entity
and its consolidated subsidiaries at cost, as of the end of the latest fiscal
quarter, of the entity and its consolidated subsidiaries, each item to be
determined in conformity with generally accepted accounting principles
consistently applied. A "subsidiary" of an entity shall be a corporation 50% or
more of the shares of Voting Stock of which is owned directly or indirectly by
such entity.
In case of any such assumption by an Affiliate of the Company, such
Affiliate shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein as the Company, and the Company shall be
relieved of any further obligation under this Security and the Indenture. Such
Affiliate shall be a successor corporation for purposes of Section 802 of the
Indenture.
THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES
THEREOF.
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