exv4w3



 



     EXHIBIT
4.3


DELPHI CORPORATION



No. 1


ADJUSTABLE RATE JUNIOR SUBORDINATED NOTE

DUE 2033





     DELPHI CORPORATION, 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 DELPHI TRUST II, a statutory business
trust formed under the laws of the State of Delaware (the “Trust”), or
registered assigns, the principal sum of ONE HUNDRED FIFTY FOUR MILLION SIX
HUNDRED FORTY THOUSAND DOLLARS ($154,640,000) on November 15, 2033, and to pay
interest thereon from November 21, 2003, or from the most recent Interest
Payment Date in the case of the Fixed Rate Period, or from the date on which
interest has been paid or duly provided for in the case of the Floating Rate
Period. The Company promises to pay interest during the Fixed Rate Period
semiannually in arrears on May 15 and November 15 of each year, subject to
deferral as set forth herein, commencing May 15, 2004, at the rate of 6.197%
per annum, plus Compounded Interest, if any, to but excluding November 15, 2008
or until the principal hereof is paid or made available for payment and (to the
extent that the payment of such interest shall be legally enforceable) at the
rate of 6.197% per annum, compounded semiannually, on any overdue principal and
on any overdue installment of interest. The Company promises to pay interest
during the Floating Rate Period quarterly in arrears, on February 15, May 15,
August 15 and November 15 of each year, subject to deferral as set forth
herein, at a rate, reset quarterly, equal to 3.000% plus the greatest of (a)
the 3-month LIBOR rate, (b) the 10-year Treasury CMT and (c) the 30-year
Treasury CMT, plus Compounded Interest, if any, until the principal hereof is
paid or made available for payment and (to the extent that the payment of such
interest shall be legally enforceable) at such Floating Rate per annum,
compounded quarterly, on any overdue principal and on any overdue installment
of interest. The amount of interest payable on each Interest Payment Date
relating to an Interest Period in the Fixed Rate Period will be computed on the
basis of a 360-day year of twelve 30-day months, and for any period shorter
than a full month for which interest is computed, the amount of interest
payable will be computed on the basis of the actual number of days elapsed in
such a 30-day month. The amount of interest payable on each Interest Payment
Date relating to an Interest Period in the Floating Rate Period will be
computed by multiplying the per annum Floating Rate in effect for such Interest
Period by a fraction, the numerator of which will be the actual number of days
in such Interest Period (or portion thereof) (determined by including the first
day thereof and excluding the last thereof) and the denominator of which will
be 360, and multiplying the rate so obtained by $1,000 per $1,000 principal
amount of Securities. If any Interest Payment Date with respect to an Interest
Period in the Fixed Rate Period is not a Business Day, interest will be payable
on the first Business Day following such Interest Payment Date with the same
force and effect as if payment was made on the date such payment was originally
payable (and without any interest or other payment in respect of any such
delay) unless that Business Day is in the next calendar year, in which case
such interest will be payable on the first Business Day immediately prior to
such Interest Payment Date. If any Interest Payment Date with respect to


 







 


an Interest Period in the Floating Rate Period is not a Business Day, then
interest will be payable on the first Business Day following such Interest
Payment Date and interest shall accrue to the actual payment date. The
interest 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) is registered at the
close of business on the Regular Record Date for such interest, which shall be
the close of business on the fifteenth day (whether or not a business day),
next preceding the relevant Interest Payment Date. Any such interest not so
punctually paid or duly provided for (“Defaulted Interest”) will 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 subsequent record date
for the payment of such Defaulted Interest established by notice given by mail
by or on behalf of the Company to the Holders of Debt Securities of the series
in default not less than fifteen days preceding such subsequent record date,
such record date to be not less than five days preceding the date of payment of
such Defaulted Interest or such earlier date not inconsistent with the
requirements of any securities exchange on which this Security may be listed,
and upon such notice as may be required by such exchange.



     Payment of the principal of and any such interest on this Security will be
made at the office or agency of such paying agent or paying agents as the
Company may designate for that purpose in the Borough of Manhattan, the City
and 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, payment of
interest may be made by (i) mailing checks for such interest payable to or upon
the order of such Holders at their last addresses as they appear on the
Security Register for such Debt Securities or (ii) in the case of Holders of
U.S. $10,000,000 or more in aggregate principal amount of such Debt Securities,
by wire transfer of immediately available funds, but only if the Trustee has
received wire transfer instructions in writing not less than 15 days prior to
the applicable Interest Payment Date and provided further that the payment of
principal will only be made upon surrender of this Security to the Trustee.
Notwithstanding the foregoing, so long as the owner and Holder of record of
this Security is the Trust, the payment of the principal of and interest
(including Compounded Interest, if any) on this Security will be made at such
place and to such account of the Trust as may be designated by the Property
Trustee.


     Delphi shall have the right to set off any payment made to a holder of
Preferred Securities against its obligation to make a corresponding payment of
principal or interest, as the case may be, on the Securities.


     This Security constitutes a Debt Security issued under, and as defined in,
the Indenture (as defined below) and ranks pari passu with other Debt
Securities previously issued thereunder. The indebtedness evidenced by this
Security is, to the extent provided in the Indenture, subordinate and subject
in right of payment to the prior payment in full of all Senior Debt, 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 of
this Security, by his acceptance of the same, hereby waives all notice of the
acceptance of the


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subordination provisions contained herein and in the Indenture by each
holder of Senior Debt, whether now outstanding or hereafter incurred, and
waives reliance by each such Holder upon said provisions.



     This Security constitutes a Registered Security under the Indenture and is
initially issued in definitive form in the amount set forth above against
payment at a price of 100% of the principal amount hereof. Upon any
redemption, exchange or transfer of this Security, notes issued in exchange
herefor shall be issuable in minimum denominations of $1,000 and integral
multiples thereof.


     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 though fully set forth at this place.


     All terms used in this Security that are defined in the Indenture shall
have the meanings assigned to them in the Indenture.


     Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Security shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.


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     IN WITNESS WHEREOF, the Company has caused this Security to be signed by
its Chairman of the Board or the President or any Vice Chairman or Vice
President or its Treasurer and the Secretary or any Assistant Secretary, or, if
the other signatory is other than the Treasurer, any assistant Treasurer,
manually or in facsimile, and a facsimile of its corporate seal to be imprinted
hereon.



	 	 	 	 	 	 	 
	 	 	 	 	DELPHI CORPORATION
	 	 	 	 	 	 	 
	 	 	 	 	By: 	 	/s/ John G. Blahnik
	 	 	 	 	 	 	

Name: John G. Blahnik

Title: Vice President
	 	 	 	 	 	 	 
	 	 	 	 	By:	 	/s/ Diane L.
Kaye
	 	 	 	 	 	 	

Name: Diane L. Kaye

Title: Secretary






	 	 
	[Corporate Seal]
	 	 
	Attest:	 	/s/ John D. Sheehan
	 	 	








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TRUSTEE’S CERTIFICATE OF AUTHENTICATION



     This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.



	 	 	 	 	 	 	 
	 	 	 	 	J.P. MORGAN TRUST COMPANY, N.A.

	 	 	 	 	(successor in interest to Bank One

	 	 	 	 	Trust Company, N.A.), as Trustee

	 	 	 	 	By:	 	/s/ Jeffrey L. Eubank
	 	 	 	 	 	 	

	 	 	 	 	 	 	 Jeffrey L. Eubank

 Vice President






	 	 	 
	 	Dated: November 21, 2003





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FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers unto:



PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE:












(Print or Type Name and Address including Zip Code of Assignee)






the within Security and all rights, thereunder, hereby irrevocably constituting and appointing





attorney to transfer said Security on the books of the Company, with full power
of substitution in the premises.



	 	 
	By:	 
	 	


	Dated:	 
	 	








	 	 	 
	NOTE:	 	
The signature to this assignment must correspond with the name as
written upon the face of the within Security in every particular
without alteration or enlargement or any change whatsoever and must
be guaranteed.





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REVERSE OF SECURITY


DELPHI CORPORATION


ADJUSTABLE RATE JUNIOR SUBORDINATED NOTE


DUE 2033


     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 October 28, 2003, (herein called
the “Indenture”), among the Company and J.P. Morgan Trust Company, N.A.
(successor in interest to Bank One Trust Company, N.A.), as Trustee (herein
called the “Trustee”, which term includes any successor trustee under the
Indenture with respect to the series of which this Security is a part), 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 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 Securities of the
series designated on the face hereof, whose issuance on the date hereof is
limited in aggregate principal amount to $154,640,000.


     The Securities of this series are subject to the defeasance and covenant
defeasance provisions set forth in Article Twelve of the Indenture.


     1. Definitions. For all purposes of this Security, except as otherwise
expressly provided or unless the context otherwise requires:


     “Calculation Agent” means J.P. Morgan Trust Company, N.A., as calculation
agent pursuant to the Calculation Agent Agreement, solely in its capacity as
Calculation Agent hereunder and thereunder and not in its individual capacity,
or its successor in interest in such capacity, or any successor calculation
agent appointed as therein provided.


     “Calculation Agent Agreement” means the Calculation Agent Agreement, dated
as of November 21, 2003, among the Company, the Trust and J.P. Morgan Trust
Company, N.A., as calculation agent.


     “Calendar Period” means a period of 180 calendar days.


     “Designated CMT Maturity Index” means the original period to maturity of
the U.S. Treasury securities (10 years) with respect to which the 10-year
Treasury CMT will be calculated.


     “Fixed Rate” means 6.197% per annum.


     “Fixed Rate Period” means the date of original issuance to, but excluding,
November 15, 2008.


     “Floating Rate” means the Interest Rate applicable to an Interest Period
during the Floating Rate Period, calculated pursuant to Section 2.


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     “Floating Rate Determination Date” means the second London Business Day
immediately preceding the first day of the relevant Interest Period in the
Floating Rate Period.


     “Floating Rate Period” means November 15, 2008 to, but excluding, the date
on which all Trust Securities have been redeemed.


     “Interest Period” means each semiannual period in the Fixed Rate Period
and each quarterly period in the Floating Rate Period for which interest is
payable as specified in Section 2.


     “Interest Rate” means the rate at which interest will accrue in respect of
an Interest Period, which will be equal to the Fixed Rate during the Fixed Rate
Period and will be equal to the applicable Floating Rate for each Interest
Period during the Floating Rate Period, determined pursuant to Section 2.


     “Investment Company Event” means the receipt by the Property Trustee, on
behalf of the Trust, of an Opinion of Counsel, rendered by a law firm having a
recognized national securities law practice (which opinion shall not have been
rescinded by such law firm), to the effect that, as a result of the occurrence
of a change in law or regulation or a change in interpretation or application
of law or regulation by any legislative body, court, government agency or
regulatory authority on or after the date of original issuance of the Preferred
Securities, there is more than an insubstantial risk that the Trust is or will
be considered an “investment company” that is required to be registered under
the Investment Company Act of 1940, as amended.


     “London Business Day” means a day that is a Business Day and a day on
which dealings in deposits in U.S. dollars are transacted, or with respect to
any future date are expected to be transacted, in the London interbank market.


     “Make-Whole Amount” means the sum of the present value of 100% of the
principal amount of the Securities discounted from November 15, 2008, plus the
present value of scheduled payments of interest for the Remaining Fixed Rate
Period Life (assuming that interest payments are not deferred), calculated by
discounting the relevant amounts to the Redemption Date on a semiannual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury
Rate plus 60 basis points, all as determined by the Quotation Agent. For the
avoidance of doubt, any calculation of the remaining scheduled payments of
interest shall not include interest accrued as of the applicable Redemption
Date.


     “Primary Treasury Dealer” means a primary U.S. government securities
dealer in New York City.


     “Quotation Agent” means Citigroup Global Markets Inc. and its successors;
provided, however, that if Citigroup Global Markets Inc. ceases to be a Primary
Treasury Dealer, the Company may appoint another Primary Treasury Dealer as
Quotation Agent.


     “Redemption Date” means, with respect to any Securities to be redeemed
under the Indenture, the date fixed for redemption thereof under the Indenture.


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     “Redemption Price” means, with respect to the Securities, 100% of the
aggregate principal amount of the Securities, together with any accrued but
unpaid interest, including Compounded Interest, if any, thereon to the
Redemption Date.


     “Remaining Fixed Rate Period Life” means the period from the Redemption
Date for the Securities to and including November 15, 2008.


     “Special Event Redemption Price” means, with respect to the Securities,
(i) if prior to November 15, 2008, at a price equal to the greater of (a) 100%
of the principal amount of the Securities, and (b) the Make-Whole Amount, and
(ii) if on or after November 15, 2008, equal to 100% of the principal amount of
the Securities, in each case, plus any accrued and unpaid interest, including
Compounded Interest, if any, to the Redemption Date.


     “Tax Event” means the receipt by the property trustee of the Trust (the
“Property Trustee”), on behalf of the Trust, of an Opinion of Counsel, rendered
by a law firm having a recognized national tax and securities law practice
(which opinion shall not have been rescinded by such law firm), to the effect
that, as a result of any amendment to, or change (including any announced
prospective change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein
affecting taxation, or as a result of any official administrative pronouncement
or judicial decision interpreting or applying such laws or regulations, which
amendment or change is effective or such pronouncement or decision is announced
on or after the date of original issuance of any Preferred Securities, there is
more than an insubstantial risk in each case that (i) the Trust is, or will be
within 90 days of the date of such Opinion of Counsel, subject to United States
federal income tax with respect to income received or accrued on the
Securities, (ii) interest payable by the Company on the Securities is not, or
within 90 days of the date of such Opinion of Counsel will not be, deductible
by the Company, in whole or in part, for United States federal income tax
purposes or (iii) the Trust is, or will be within 90 days of the date of such
Opinion of Counsel, subject to more than a de minimis amount of other taxes,
duties or other governmental charges.


     “Telerate Page 3750” means the display designated on page 3750 on
MoneyLine Telerate (or such other page as may replace the 3750 page on the
service or such other service as may be nominated by the British Bankers’
Association for the purpose of displaying London interbank offered rates for
U.S. dollar deposits).


     “Telerate Page 7051” means the display on MoneyLine Telerate (or any
successor service), on such (or any other page as may replace such page on that
service), for the purpose of displaying Treasury Constant Maturities as
reported in H.15(519).


     “Treasury Rate” has the meaning specified under the definition of 10-year
Treasury CMT, except that (i) the Designated CMT Maturity Index for the
Treasury Rate shall be the period to maturity corresponding to the Remaining
Fixed Rate Period Life, where if no maturity is within three months before or
after the Remaining Fixed Rate Period Life, yields for the two published
maturities most closely corresponding to the Remaining Fixed Rate Period Life
shall be determined and the Treasury Rate shall be interpolated or extrapolated
from such yields on a straight-line basis, rounding to the nearest month and
(ii) all actions to be performed by the


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Calculation Agent with respect to the 10-year Treasury CMT shall be
performed by the Quotation Agent with respect to the Treasury Rate.



     2. Interest. During the Fixed Rate Period, the Interest Rate shall be the
Fixed Rate. After the conclusion of the Fixed Rate Period, with respect to
each subsequent Interest Period, the Interest Rate shall be the Floating Rate.
The Calculation Agent shall calculate the Floating Rate as follows:


     Except as provided below, the Floating Rate for any Interest Period during
the Floating Rate Period for the Securities will be equal to the Adjustable
Rate (as defined below) plus 3.000% per annum. The “Adjustable Rate” for any
Interest Period will be equal to the greatest of (i) the 3-month LIBOR Rate,
(ii) the 10-year Treasury CMT and (iii) the 30-year Treasury CMT (each as
defined below and collectively referred to as the “Benchmark Rates”) for such
Interest Period during the Floating Rate Period. In the event that the
Calculation Agent determines in good faith that for any reason:


	 	(i)
	 	any one of the Benchmark Rates cannot be
determined for any Interest Period, the Adjustable Rate for
such Interest Period will be equal to the higher of whichever
two of remaining Benchmark Rates can be so determined;




	 	(ii)
	 	only one of the Benchmark Rates can be determined
for any Interest Period, the Adjustable Rate for such Interest
Period will be equal to whichever remaining Benchmark Rate can
be so determined; or




	 	(iii)
	 	none of the Benchmark Rates can be determined
for any Interest Period, the Adjustable Rate for the preceding
Interest Period will be continued for such Interest Period.




     The “3-month LIBOR Rate” means, for each Interest Period during the
Floating Rate Period, the arithmetic average of the two most recent weekly
quotes for deposits for U.S. Dollars having a term of three months, as
published on the first Business Day of each week during the relevant Calendar
Period immediately preceding the quarterly period for which the Floating Rate
is being determined. Such quotes will be taken from Telerate Page 3750 at
approximately 11:00 a.m. London time on the relevant date. If such rate does
not appear on Telerate Page 3750 on the relevant date, the 3-month LIBOR Rate
will be the arithmetic mean of the rates quoted by three major banks in New
York City selected by the Calculation Agent, at approximately 11:00 a.m., New
York City time, on the relevant date for loans in U.S. Dollars to leading
European banks for a period of three months.


     “The 10-year Treasury CMT” means the rate determined in accordance with
the following provisions:


                    (i) With respect to any Floating Rate Determination Date and the
Interest Period that begins immediately thereafter, the 10-year Treasury
CMT means the rate displayed on Telerate Page 7051 under the caption
“...Treasury Constant Maturities...Federal Reserve Board Release
H.15...Mondays Approximately 3:45 P.M.”, under the column for the
Designated CMT Maturity Index.


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                    (ii) If such rate is no longer displayed on the relevant page, or is
not so displayed by 3:00 P.M., New York City time, on the applicable
Floating Rate Determination Date, then the 10-year Treasury CMT for such
Floating Rate Determination Date will be such Treasury constant maturity
rate for the Designated CMT Maturity Index as is published in H.15(519).


                    (iii) If such rate is no longer displayed on the relevant page, or
if not published by 3:00 P.M., New York City time, on the applicable
Floating Rate Determination Date, then the 10-year Treasury CMT for such
Floating Rate Determination Date will be such constant maturity treasury
rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the applicable
Floating Rate Determination Date with respect to such interest reset date
as may then be published by either the Board of Governors of the Federal
Reserve System or the United States Department of the Treasury that the
Calculation Agent determines to be comparable to the rate formerly
displayed on the Telerate Page 7051 and published in H.15(519).


                    (iv) If such information is not provided by 3:00 P.M., New York City
time, on the applicable Floating Rate Determination Date, then the
10-year Treasury CMT for such Floating Rate Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity,
based on the arithmetic mean of the secondary market offered rates as of
approximately 3:30 P.M., New York City time, on the Floating Rate
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers in The City
of New York (each, a “Reference Dealer”) selected by the Calculation
Agent (from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality,
one of the lowest)), for the most recently issued direct noncallable
fixed rate obligations of the United States (“Treasury Debentures”) with
an original maturity of approximately the Designated CMT Maturity Index
and a remaining term to maturity of not less than such Designated CMT
Maturity Index minus one year.


                    (v) If the Calculation Agent is unable to obtain three such Treasury
Debentures quotations, the 10-year Treasury CMT for the applicable
Floating Rate Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market offered rates as of approximately 3:30 P.M., New York
City time, on the applicable Floating Rate Determination Date of three
Reference Dealers in The City of New York (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest
quotation (or, in the event of equality, one of the highest) and the
lowest quotation (or, in the event of equality, one of the lowest)), for
Treasury Debentures with an original maturity of the number of years that
is the next highest to the Designated CMT Maturity Index and a remaining
term to maturity closest to the Designated CMT Maturity Index and in an
amount of at least $100 million.


                    (vi) If three or four (and not five) of such Reference Dealers are
quoting as set forth above, then the 10-year Treasury CMT will be based
on the


5







 


arithmetic mean of the offered rates obtained and neither the
highest nor lowest of such quotes will be eliminated; provided, however,
that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as set forth above, the 10-year Treasury CMT with
respect to the applicable Floating Rate Determination Date will remain
the 10-year Treasury CMT for the immediately preceding Interest Period.
If two Treasury Debentures with an original maturity as described in the
second preceding sentence have remaining terms to maturity equally close
to the Designated CMT Maturity Index, then the quotes for the Treasury
Debentures with the shorter remaining term to maturity will be used.


     The “30-year Treasury CMT” has the meaning specified under the definition
of 10-year Treasury CMT, except that the Designated CMT Maturity Index for the
30-year Treasury CMT shall be 30 years.


     The 3-month LIBOR Rate, the 10-year Treasury CMT and the 30-year Treasury
CMT shall each be rounded to the nearest hundredth of a percent.


     The Floating Rate with respect to each Interest Period during the Floating
Rate Period will be calculated as promptly as practicable by the Calculation
Agent according to the appropriate method described above.


     3. Optional Redemption. Except as provided in Section 4, the Securities
may not be redeemed by the Company on or before November 15, 2008. The
Securities of this series are subject to redemption upon not less than 30 nor
more than 60 days’ notice (provided that, so long as any trust preferred
securities issued by the Trust (the “Preferred Securities”) are outstanding,
the Company shall give such notice no later than at such time so as to allow
the Property Trustee (as defined herein) to comply with Section 4.03(b) of the
Declaration of Trust (as defined herein)) by mail, at any time on or after
November 15, 2008, as a whole but not in part, at the election of the Company
(an “Optional Redemption”), at the Redemption Price.


     The Company may not, in any case, redeem the Securities unless all accrued
and unpaid interest thereon has been paid in full on all outstanding Securities
through the last Interest Payment Date before and including the Redemption
Date.


     In the event that any date with respect to the Fixed Rate Period on which
any Redemption Price is payable is not a Business Day, then payment of the
Redemption Price 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), with the same force and effect as if made on such date
unless that Business Day is in the next calendar year, in which case the
Redemption Price will be payable on the first Business Day immediately prior to
such Redemption Date. In the event that any date relating to a Floating Rate
Period on which any Redemption Price is payable is not a Business Day, then
payment of the Redemption Price payable on such date will be made on the next
succeeding day which is a Business Day, and any interest (but not any other
payment in respect of any such delay), shall accrue to the actual payment date.


     4. Special Redemption. If, at any time, a Tax Event (as defined below) or
an Investment Company Event (as defined below) shall occur and be continuing,
the Company shall have the


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right at any time, upon not less than 30 nor more than 60 days’ notice
(provided that, so long as any Preferred Securities are outstanding, the
Company shall give such notice no later than at such time so as to allow the
Property Trustee to comply with Section 4.03(b) of the Declaration), to redeem
the Securities, in whole but not in part, for cash, within 90 days following
the occurrence of such Tax Event or Investment Company Event, as the case may
be, at the Special Event Redemption Price; provided that, if a Tax Event shall
occur and be continuing, and the Company shall not have (i) redeemed all of the
Securities pursuant to this paragraph or (ii) dissolved the Trust, pursuant to
Section 9.02(b) of the Amended and Restated Declaration of Trust of the Trust,
dated November 21, 2003 (the “Declaration of Trust”), the Company shall pay
from time to time to the Trust (and its permitted successors and assigns under
the Declaration of Trust) for so long as the Trust (or its permitted successor
or assignee) is the registered Holder of the Securities, such additional
amounts (the “Additional Sums”) as may be necessary in order that the amount of
distributions (including any Additional Amounts (as defined in the Declaration
of Trust)) then due and payable by the Trust on the Preferred Securities in
accordance with the terms thereof shall not be reduced as a result of any
additional taxes, duties or other governmental charges to which the Trust has
become subject from time to time as a result of a Tax Event. Whenever in this
Security or in the Indenture there is a reference in any context to the payment
of principal of or interest on the Securities, such mention shall be deemed to
include mention of the payments of the Additional Sums provided for in this
paragraph to the extent that, in such context, Additional Sums are, were or
would be payable in respect thereof pursuant to the provisions of this
paragraph and express mention of the payment of Additional Sums (if applicable)
in any provision hereof shall not be construed as excluding Additional Sums in
those provisions hereof where such express mention is not made; provided that
the extension of an interest payment period pursuant to this Security shall not
extend the payment of any Additional Sums that may be due and payable during
such interest payment period.



     In the event that any date with respect to the Fixed Rate Period on which
any Special Event Redemption Price is payable is not a Business Day, then
payment of the Special Event Redemption Price 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), with the same force and effect as
if made on such date unless that Business Day is in the next calendar year, in
which case the Special Event Redemption Price will be payable on the first
Business Day immediately prior to such Redemption Date. In the event that any
date relating to a Floating Rate Period on which any Special Event Redemption
Price is payable is not a Business Day, then payment of the Special Event
Redemption Price payable on such date will be made on the next succeeding day
which is a Business Day, and any interest (but not any other payment in respect
of any such delay), shall accrue to the actual payment date.


     5. Event of Default. 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.


     6. Interest Deferral. So long as no Event of Default has occurred and is
continuing, the Company shall have the right to defer the payment of interest
(including any Additional Amounts) on such Securities at any time during the
term of the Securities, from time to time, for a period not exceeding five
years (the “Extended Interest Payment Period”); provided, that no Extended
Interest Payment Period may extend beyond the Stated Maturity of the Securities
or


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any earlier Redemption Date on which all Securities are redeemed. If the
Company elects to defer interest during the Fixed Rate Period, interest will
continue to accrue at the Fixed Rate until the expiration of the Fixed Rate
Period and thereafter will accrue at the Floating Rate; provided that such
Floating Rate shall not be less than the Fixed Rate for the Fixed Rate Period
just ended. If the Company elects to defer interest during the Floating Rate
Period, distributions will continue to accrue at the applicable Floating Rate,
reset quarterly. On the Interest Payment Date occurring at the end of the
Extended Interest Payment Period, the Company shall pay all interest then
accrued and unpaid (together with interest thereon (i) during the Fixed Rate
Period, at the Fixed Rate compounded semiannually to the extent permitted by
applicable law, and (ii) during the Floating Rate Period, at the applicable
Floating Rate for each Interest Period or part thereof during the Extended
Interest Payment Period, compounded quarterly to the extent permitted by
applicable law (in each case, “Compounded Interest”)). During such Extended
Interest Payment Period, the Company shall not declare or pay any dividends,
distributions or interest on, or redeem, purchase, acquire or make a
liquidation, principal or premium payment with respect to, any of its Common
Stock, preferred stock or any other securities similar to the Preferred
Securities or debt securities of the Company ranking equally in right of
payment with or junior to the Securities, and shall not make any guarantee
payments with respect thereto; provided, however, that, during any such
Extended Interest Payment Period, the Company may (i) make any dividend,
redemption, liquidation, interest, principal or guarantee payment in the form
of Common Stock, (ii) repurchase, redeem or otherwise acquire Common Stock in
connection with any employee benefit plans or any other contractual obligation
of the Company, other than a contractual obligation ranking equally with or
junior to the Securities, (iii) make payments under the Guarantee (as defined
in the Declaration of Trust) with respect to the Preferred Securities, (iv)
make payments or distributions in connection with a reclassification of the
Company’s capital stock; provided such reclassification does not result in the
issuance of securities senior to the Securities, and (v) make any payments or
distributions in connection with an exchange or conversion of any securities of
the Company for any class or series of the Company’s capital stock that is
junior to the Securities (including the purchase of fractional interests
thereof). Prior to the termination of any such Extended Interest Payment
Period, the Company may further extend such Extended Interest Payment Period,
provided that such Extended Interest Payment Period, together with all such
further extensions thereof, shall not exceed five years or extend beyond the
Stated Maturity of the Securities or any earlier Redemption Date on which all
Securities are redeemed. During an Extended Interest Payment Period, the
Company may pay all or any portion of the interest accrued on the Securities on
any Interest Payment Date to Holders of record on the Regular Record Date for
such Interest Payment Date. At the termination of any such Extended Interest
Payment Period and upon the payment of all accrued and unpaid interest then
due, together with Compounded Interest, the Company may select a new Extended
Interest Payment Period, subject to the foregoing requirements. No interest on
this Security shall be due and payable during an Extended Interest Payment
Period, except at the end thereof. At the end of the Extended Interest Payment
Period, the Company shall pay all interest accrued and unpaid on the Securities
including any Compounded Interest which shall be payable to the Holders of the
Securities in whose names the Securities are registered
in the Security
Register on the Regular Record Date for the first Interest Payment Date
occurring on or after the end of the Extended Interest Payment Period.



     So long as the Property Trustee is the sole owner and Holder of record of
the Securities at the time the Company selects an Extended Interest Payment
Period, the Company shall give both


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the Property Trustee and the Trustee written notice of its selection of
such Extended Interest Payment Period ten business days prior to the earlier of
(i) the next succeeding date on which distributions on the Preferred Securities
are payable or (ii) the date the Trust is required to give notice of the record
date or the date such distributions are payable to the New York Stock Exchange
or other applicable self-regulatory organization or to holders of the Preferred
Securities, but in any event not less than one business day prior to such
record date. The Company shall cause the Trust to give notice of the Company’s
selection of such Extended Interest Payment Period to the holders of Preferred
Securities.



     If, as a result of an Early Termination Event (as defined in the
Declaration of Trust), Securities have been distributed to holders of Preferred
Securities, at the time the Company selects an Extended Interest Payment
Period, the Company shall give the Holders of Securities and the Trustee
written notice of its selection of such Extended Interest Payment Period at
least ten business days prior to the earlier of (i) the next succeeding
Interest Payment Date or (ii) the date the Company is required to give notice
of the record or payment date of such interest payment to the New York Stock
Exchange (if the Securities are then listed thereon) or other applicable
self-regulatory organization or to Holders of the Securities.


     7. Amendments and Waivers. The Indenture permits, with certain exceptions
as therein provided, the Company, when authorized by a Board Resolution, and
the Trustee, with the consent of the Holders of not less than a majority in the
aggregate principal amount of the Debt Securities of all series affected at the
time outstanding (voting as one class), to execute supplemental indentures for
the purpose of adding any provisions to or changing in any manner or
eliminating any of the provisions of the Indenture or of any supplemental
indenture or of modifying in any manner the rights of the Holders of the Debt
Securities; provided, however, that no such supplemental indenture shall (i)
change the fixed maturity of any Debt Securities, or reduce the principal
amount thereof (or premium, if any), or reduce the rate or extend the time of
payment of any interest or Additional Amounts thereon or reduce the amount due
and payable upon acceleration of the maturity thereof or the amount provable in
bankruptcy, or make the principal of (premium, if any) or interest, if any, or
Additional Amounts, if any, on any Debt Security payable in any coin or
currency other than that provided in such Debt Security, (ii) impair the right
to institute suit for the enforcement of any such payment on or after the
Stated Maturity (or, in the case of redemption, on or after the Redemption
Date), or (iii) reduce the aforesaid percentage of Debt Securities, the Holders
of which are required to consent to any such supplemental indenture, without
the consent of the Holders of each Debt Security so affected. The Indenture
also contains provisions permitting the Holders of a majority in aggregate
principal amount of the Debt Securities of all series at the time outstanding
affected thereby, on behalf of the Holders of the Debt 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 (unless revoked as
provided in the Indenture) 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 or in lieu hereof, whether or
not notation of such consent or waiver is made upon this Security. In
addition, the Indenture permits the Company and the Trustee, under certain
circumstances set forth in the Indenture, when authorized by a Board Resolution
(as defined in the Indenture) to enter into an indenture or supplemental
indentures without the consent of the Holders of Debt Securities.


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     Subject to Article Twelve of the Indenture, no reference herein to the
Indenture (other than such Section) 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 amount of principal of (and premium, if
any, on) and interest on this Security herein provided, and at the times, place
and rate, and in the coin or currency, herein prescribed.


     8. Agreed Tax Treatment. The Company and, by acceptance of a Security or
a beneficial interest therein, the Holder of, and any person that acquires a
beneficial interest in, such Security, agree that for United States federal,
state and local tax purposes it is intended that such Security constitute
indebtedness.


     9. Transfer of Securities. 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 the Borough
of Manhattan, the City and State of 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 this series,
of authorized denominations and for the same aggregate principal amount, will
be issued to the designated transferee or transferees.


     Except as provided below, the Securities of this series are issuable only
in registered form without coupons in denominations of U.S. $1,000 and, to the
extent practicable, 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 of different authorized denominations as requested by
the Holder surrendering the same. In connection with the distribution of
Securities to holders of the Preferred Securities in connection with an Early
Termination Event:


          (i) the Securities in certificated form may be presented to the
Trustee by the Property Trustee in exchange for one or more Global
Securities in an aggregate principal amount equal to the aggregate
principal amount of all outstanding Securities, to be registered in the
name of the Depository, or its nominee, and delivered by the Trustee to
the Depository, or its custodian, for crediting to the accounts of its
participants pursuant to the procedures of the Depository Trust Company
(or any permitted successor depository) (the “Depository”). The Company
upon any such presentation shall execute a Global Security in such
aggregate principal amount and deliver the same to the Trustee for
authentication and delivery in accordance with the Indenture; and


          (ii) if any Preferred Securities are held in non book-entry
certificated form, the Security in certificated form may be presented to
the Trustee by the Property Trustee and any Preferred Security
certificate which represents Preferred Securities other than Preferred
Securities held by the Depository or its nominee (“Non Book-Entry
Preferred Securities”) will be deemed to represent beneficial interests
in Securities presented to the Trustee by the Property Trustee having an
aggregate principal amount equal to the aggregate liquidation amount of
the Non Book-Entry Preferred Securities until such Preferred Security
certificates are presented to the Security Registrar for transfer or
reissuance at which time such Non Book-Entry Preferred Security
certificates will be


10







 


canceled and a Security, registered in the name of the Holder of the
Preferred Security certificate or the transferee of the Holder of such
Preferred Security certificate, as the case may be, with an aggregate
principal amount equal to the aggregate liquidation amount of the
Preferred Security certificate canceled, will be executed by the Company
and delivered to the Trustee for authentication and delivery in
accordance with the Indenture. On issue of such Securities, Securities
with an equivalent aggregate principal amount that were presented by the
Property Trustee to the Trustee will be deemed to have been canceled.


     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.


     THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THE
SECURITIES.


     All terms used in this Security which are defined in the Indenture and not
otherwise defined herein shall have the meanings assigned to them in the
Indenture.




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