Exhibit 99.1
CUSIP NO.____________ DIAMOND SHAMROCK, INC. PRINCIPAL AMOUNT:
REGISTERED NO. FX____________ MEDIUM-TERM NOTE, SERIES B $
(Fixed Rate)
If the registered owner of this Note (as indicated below) is The Depository
Trust Company (the "U.S. Depositary") or a nominee of the U.S. Depositary a
Global Note and the following legend is applicable: Unless this certificate is
presented by an authorized representative of The Depository Trust Company (55
Water Street, New York, New York) to the issuer or its agent for registration of
transfer, exchange or payment, and any certificate issued is registered in the
name of CEDE & CO., or such other name as requested by an authorized
representative of The Depository Trust Company and any payment is made to CEDE &
CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL since the registered owner hereof, CEDE & CO., has an
interest herein.
The following summary of terms is subject to the information set forth on
the reverse hereof:
ORIGINAL ISSUE DATE: OPTIONAL REDEMPTION: YES____ NO_____
STATED MATURITY: INITIAL REDEMPTION DATE:
SPECIFIED CURRENCY: REDEMPTION PRICE: Initially __% of Principal
Amount and declining by __% of the Principal
Amount on each anniversary of the Initial
Redemption Date until the Redemption Price is
100% of the Principal Amount.
AUTHORIZED DENOMINATIONS:
OPTION TO ELECT PAYMENTS IN U.S. DOLLARS:
____YES _____NO
FORM: ______BOOK ENTRY
______CERTIFICATED OPTION TO ELECT PREPAYMENT: ____YES ____NO
INTEREST RATE: OPTIONAL PREPAYMENT DATES:
INTEREST PAYMENT DATE[S]: OPTIONAL PREPAYMENT PRICES:
REGULAR RECORD DATE[S]: OPTIONAL INTEREST RESET: ____YES ____NO
OVERDUE RATE: OPTIONAL INTEREST RESET DATES:
U.S. DEPOSITARY: OPTIONAL EXTENSIONS OF MATURITY___YES NO
CURRENCY DETERMINATION AGENT: EXTENSION PERIOD:
AMORTIZATION NOTE: ___YES ___NO NUMBER OF EXTENSION PERIODS:
OTHER PROVISIONS: FINAL MATURITY DATE:
If this Debt Security was issued with "original issue discount" for
purposes of Section 1273 of the Internal Revenue Code of 1986, as amended, the
following shall be completed:
ORIGINAL ISSUE DISCOUNT SECURITY: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed
_____YES _____NO as a percentage of
aggregate principal
amount):
YIELD TO MATURITY: SHORT ACCRUAL PERIOD OID: METHOD USED TO DETERMINE
YIELD FOR SHORT ACCRUAL
PERIOD:
____Approximate ____Exact
DIAMOND SHAMROCK, INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company" which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to CEDE & Co., or registered assigns, the
principal sum set forth above on the Stated Maturity shown above, and to pay
interest thereon from the Original Issue Date shown above or from and including
the most recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for, as the case may be. (Continued on next page.)
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
TRUSTEE'S CERTIFICATION OF AUTHENTICATION DIAMOND SHAMROCK, INC.
This is one of the Debt Securities of the
series designated herein and referred to
in the within-mentioned Indenture. By:__________________________
THE FIRST NATIONAL BANK OF CHICAGO Attest: _____________________
as Trustee
By:_________________________
(Continued from previous page.)
Interest will be paid on the Interest Payment Date or Dates shown above
("Interest Payment Dates"), commencing with the first such Interest Payment Date
next succeeding the Original Issue Date shown above (except as provided below),
at the rate per annum specified above, until the principal hereof is paid or
made available for payment and on Stated Maturity, and, if specified above,
interest shall accrue on any overdue principal and on any overdue installment of
interest (to the extent that the payment of such interest shall be legally
enforceable) at the overdue rate per annum set forth above. The interest so
payable and punctually paid or duly provided for on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the Regular Record Date set forth above next preceding such Interest Payment
Date, which shall be the 15th calendar day next preceding such Interest Payment
Date. The first payment of interest on any Note originally issued between a
Regular Record Date and an Interest Payment Date will be made on the Interest
Payment Date following the next succeeding Regular Record Date to the registered
owner on such succeeding Regular Record Date. Except as otherwise provided in
the Indenture, any such interest not so punctually paid or duly provided for
will forthwith cease to be payable to the Holder on such Regular Record Date and
may either be paid to the Person in whose name this Note (or one or more
predecessor Notes) 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 to be given to Holders of Notes of this series not less than 10
calendar 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 Notes of this series may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in said
Indenture.
Payments of interest to be paid in U.S. dollars (other than interest, and
if this is an Amortizing Note, principal (if this is not a Global Note) payable
at Stated Maturity) will be made by mailing a check to the Holder at the address
of the Holder appearing in the Security Register as of the applicable Regular
Record Date. Notwithstanding the foregoing, at the option of the Company, all
payments of interest and, if this is an Amortizing Note, principal on this Note
may be made by wire transfer of immediately available funds to an account
maintained by such Holder with a bank located in the United States as designated
by the Holder not less than 15 calendar days prior to the Interest Payment Date.
If a Holder holds U.S. $10,000,000 or more in aggregate principal amount of
Notes of like tenor and terms (including the same Interest Payment Date) (or is
the Holder of the equivalent thereof in a Specified Currency other than U.S.
dollars), such Holder shall be entitled to receive payments of interest (other
than at Stated Maturity or upon earlier redemption or repayment) in U.S.
dollars by wire transfer of immediately available funds, but only if appropriate
payment instructions have been received in writing by the Trustee not less than
15 calendar days prior to the applicable Interest Payment Date. Simultaneously
with the election by the Holder to receive payments in a Specified Currency
other than U.S dollars (by written request to the Trustee, as provided below),
the Holder shall provide appropriate payment instructions to the Trustee, and
all such payments will be made in immediately available funds to a bank account
maintained by the Holder in the country of the Specified Currency (or, with
respect to ECUs, Brussels). If such a payment with respect to this Note cannot
be made by wire transfer because the required designation has not been
received by the Trustee on or before the requisite date or for any other reason,
a notice will be mailed to the Holder at its registered address requesting a
designation pursuant to which such wire transfer can be made and, upon the
Trustee's receipt of such a designation, such payment will be made within 15
days of such receipt. The Company will pay any administrative costs imposed by
banks in connection with making payments by wire transfer, but not any tax,
assessment, or governmental charge imposed upon the Holder of this Note. In the
event that payment is so made in accordance with the instructions of the Holder,
such wire transfer shall be deemed to constitute full and complete payment of
such interest and principal on this Note. If this is not a Global Note,
payment of the principal, premium, if any, and interest payable at Maturity in
respect of this Note will be paid in immediately available funds upon surrender
of this Note accompanied by wire instructions at the principal office of the
Trustee, provided that the Note is presented in time for the Trustee to make
such payments in such funds in accordance with its normal procedures. If the
Holder of this Note (as indicated above) is the U.S. Depository or a nominee of
the U.S. Depositary, this Note is a global Note and the following legend is
applicable except as specified on the reverse hereof: THIS GLOBAL NOTE MAY NOT
BE TRANSFERRED EXCEPT AS A WHOLE BY THE U.S. DEPOSITARY OR BY A NOMINEE OF THE
U.S. DEPOSITARY TO THE U.S. DEPOSITARY OR ANOTHER NOMINEE OF THE U.S. DEPOSITARY
OR BY THE U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF THE U.S.
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
[Reverse of Note]
DIAMOND SHAMROCK, INC.
MEDIUM-TERM NOTE, SERIES B
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of December 15, 1989 (herein
called the "Indenture"), between the Company and The First National Bank of
Chicago, 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 Company,
the Trustee and the Holders of the Notes and of the terms upon which the Debt
Securities are, and are to be, authenticated and delivered. This Note is one of
the Debt Securities of the series designated on the face hereof. The Notes may
bear different dates, mature at different times, bear interest at different
rates, be subject to different redemption provisions and may otherwise vary, all
as provided in the Indenture. The Notes are limited to $150,000,000 in
aggregate principal amount (or the equivalent thereof in the Specified Currency,
calculated at the Market Exchange Rate (as defined below) on the applicable
trade date).
SECTION 2. Payments. Interest on this Note will be payable on the
Interest Payment Date or Interest Payment Dates as specified on the face hereof
and, in either case, at Stated Maturity or earlier redemption or repayment.
Interest payments on each Interest Payment Date for this Note will include
accrued interest from the Original Issue Date or from and including the last
date in respect of which interest has been paid, as the case may be, to, but
excluding, such Interest Payment Date or the date of Maturity, as the case may
be. Interest payments for this Note shall be computed and paid on the basis of
a 360-day year of twelve 30-day months.
Unless otherwise specified on the face hereof, if this Note is specified on
the face hereof as an Amortizing Note, payments with respect to this Note will
be applied first to interest due and payable hereon and then to the reduction of
the unpaid principal amount hereof. If this Note is specified on the face
hereof as an Amortizing Note, a table setting forth repayment information in
respect to this Note will be provided to the original purchaser hereof and will
be available, upon request, to subsequent Holders.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U. S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U. S. dollars if the Holder of this Note on the relevant Regular Record
Date or at Maturity, as the case may be, has transmitted a written request for
such payment in U. S. dollars to the Paying Agent at its principal office on or
prior to such Regular Record Date or the date 15 days prior to Maturity, as the
case may be. Such request may be delivered by mail, by hand or by cable, telex
or any other form of facsimile transmission. Any such request made with respect
to this Note by a Holder will remain in effect with respect to this Note payable
to such Holder, unless such request is revoked by written notice received by the
Paying Agent on or prior to the relevant Regular Record Date or the date 15 days
prior to Maturity, as the case may be (but no such revocation may be made with
respect to payments made on this Note if an Event of Default has occurred with
respect hereto or upon the giving of a notice of redemption). A Holder whose
Note is registered in the name of a broker or nominee should contact such broker
or nominee to determine whether and how an election to receive payments in U.S.
dollars may be made.
The U.S. dollar amount to be received by a Holder of a Note who elects to
receive payments in U.S. dollars will be based on the highest indicated bid
quotation for the purchase of U.S. dollars in exchange for the Specified
Currency obtained by the Currency Determination Agent (as defined below) at
approximately 11:00 A.M., New York City time, on the second Business Day next
preceding the applicable payment date (the "Conversion Date") from the bank
composite or multicontributor pages of the Quoting Source (as defined below) for
three (or two if three are not available) major banks in The City of New York.
The first three (or two) such banks selected by the Currency Determination Agent
which are offering quotes on the Quoting Source will be used. If fewer than two
such bid quotations are available at 11:00 A.M., New York City time, on the
second Business Day next preceding the applicable payment date, such payment
will be based on the Market Exchange Rate as of the second Business Day next
preceding the applicable payment date. If the Market Exchange Rate for such
date is not then available, such payment will be made in the Specified
Currency. As used herein, the "Quoting Source" means Reuters Monitor Foreign
Exchange Service, or if the Currency Determination Agent determines that such
service is not available, Telerate Monitor Foreign Exchange Service, or if the
Currency Determination Agent determines that neither service is available, such
comparable display or other comparable manner of obtaining quotations as shall
be agreed between the Company and the Currency Determination Agent. All
currency exchange costs associated with any payment in U.S. dollars on this Note
will be borne by the Holder by deductions from such payment. Any currency
determination agent (the "Currency Determination Agent") is specified on the
face hereof.
If payment in respect of this Note is required to be made in any currency
unit (e.g. ECUs) and such currency unit is unavailable, in the good faith
judgment of the Company, due to the imposition of exchange controls or other
circumstances beyond the Company's control, then all payments in respect of this
Note shall be made in U.S. dollars until such currency unit is again available.
The amount of each payment of U.S. dollars shall be computed on the basis of the
equivalent of the currency unit in U.S. dollars, which shall be determined by
the Currency Determination Agent on the following basis. The component
currencies of the currency unit for this purpose (the "Component Currencies")
shall be the currency amounts that were components of the currency unit as of
the Conversion Date. The equivalent of the currency unit in U.S. dollars shall
be calculated by aggregating the U.S. dollar equivalents of the Component
Currencies. The U.S. dollar equivalent of each of the Component Currencies
shall be determined by the Currency Determination Agent on the basis of the
Market Exchange Rate for each such Component Currency as of the Conversion
Date. "Market Exchange Rate" means the noon buying rate in The City of New York
for cable transfers of such Specified Currency as certified for customs purposes
by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Currency Determination
Agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this Note.
All percentages resulting from any calculations under this Note will be
rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit or dollar amounts used in or resulting from any
such calculation in respect of the Notes will be rounded to the nearest one-
hundredth of a unit (with five one-thousandths being rounded upward) or nearest
cent, as the case may be.
SECTION 3. Redemption. If so specified on the face hereof, the Company
may at its option redeem this Note in whole or from time to time in part on or
after the date designated as the Initial Redemption Date on the face hereof at
the redemption price specified on the face hereof, together with accrued and
unpaid interest to the date of redemption, but interest installments whose
Stated Maturity is on or prior to the date of redemption will be payable to the
Holder of this Note of record at the close of business on the relevant Regular
Record Date referred to on the face hereof, all as provided in the Indenture.
The Company may exercise such option by causing the Trustee to mail a notice of
such redemption at least 30 but not more than 60 calendar days prior to the date
of redemption, subject to all the conditions and provisions of the Indenture.
In the event of redemption of this Note in part only, a new Note or Notes for
the unredeemed portion hereof shall be issued in the name of the Holder hereof
upon the cancellation hereof.
SECTION 4. Prepayment. If so specified on the face hereof, this Note will
be prepayable prior to Stated Maturity at the option of the Holder on the
Optional Prepayment Dates shown on the face hereof at the Optional Prepayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of prepayment. In order for this Note (if it is prepayable
at the option of the Holder) to be prepaid prior to Stated Maturity, the Paying
Agent must receive at least 30 but not more than 45 calendar days prior to an
Optional Prepayment Date (i) this Note with the form below entitled "Option to
Elect Prepayment" duly completed or (ii) a telegram, telex, facsimile
transmission, or letter (first class, postage prepaid) from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States of America
setting forth the name of the Holder of this Note, the principal amount of the
Note to be prepaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the option to elect prepayment is being
exercised thereby and a guarantee that this Note with the form below entitled
"Option to Elect Prepayment" duly completed will be received by the Paying Agent
not later than five Business Days after the date of such telegram, telex,
facsimile transmission, or letter (first class, postage prepaid). If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Trustee by such fifth
Business Day. Exercise of the prepayment option by the Holder of this Note
shall be irrevocable, except that a Holder who has tendered this Note for
prepayment may revoke any such tender for prepayment by written notice to the
Paying Agent received prior to the close of business on the tenth calendar day
prior to the prepayment date. The prepayment option may be exercised by the
Holder of this Note for less than the entire principal amount of the Note,
provided that the principal amount of the Note remaining outstanding after
prepayment is an authorized denomination. Upon such partial prepayment this
Note shall be cancelled and a new Note or Notes for the remaining principal
amount hereof shall be issued in the name of the Holder of this Note.
SECTION 5. Optional Interest Reset. If so specified on the face hereof,
the interest rate on this Note may be reset by the Company on the date or dates
specified on the face hereof (each an "Optional Interest Reset Date"). The
Company may exercise such option by notifying the Trustee of such exercise at
least 45 but not more than 60 calendar days prior to an Optional Interest Reset
Date. If the Company so notifies the Trustee of such exercise, not later than
40 calendar days prior to each Optional Interest Reset Date, the Trustee will
send by telegram, telex, facsimile transmission, or letter (first class,
postage prepaid) to the Holder of this Note a notice (the "Reset Notice")
indicating (i) that the Company has elected to reset the interest rate, (ii)
such new interest rate, and (iii) the provisions, if any, for redemption during
the period from such Optional Interest Reset Date to the next Optional Interest
Reset Date or, if there is no such next Optional Interest Reset Date, to Stated
Maturity of this Note (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during such Subsequent
Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior to an
Optional Interest Reset Date, the Company may, at its option, revoke the
interest rate provided for in the Reset Notice and establish a higher interest
rate for the Subsequent Interest Period commencing on such Optional Interest
Reset Date by causing the Trustee to send by telegram, telex, facsimile
transmission, or letter (first class, postage prepaid) notice of such higher
interest rate to the Holder of this Note. Such notice shall be irrevocable.
All Notes with respect to which the interest rate is reset on an Optional
Interest Reset Date will bear such higher interest rate, whether or not tendered
for repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to reset the
interest rate of this Note, the Holder of this Note will have the option to
elect prepayment of this Note by the Company on such Optional Interest Reset
Date at a price equal to the principal amount hereof plus interest accrued and
unpaid thereon to such Optional Interest Reset Date. In order to obtain
prepayment on an Optional Interest Reset Date, the Holder must follow the
procedures set forth under Section 4 for optional prepayment except that the
period for delivery or notification in the Trustee shall be at least 25 but not
more than 35 calendar days prior to such Optional Interest Reset Date. If the
Holder has tendered this Note for prepayment following receipt of a Reset
Notice, the Holder may revoke such tender for prepayment by written notice to
the Trustee received prior to the close of business on the 10th calendar day
prior to such Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the face
hereof, the Stated Maturity of this Note may be extended at the option of the
Company for the period or periods of from one to five whole years specified on
the face hereof (each an "Extension Period") up to but not beyond the date (the
"Final Maturity Date") set forth on the face hereof. The Company may exercise
such option with respect to a Note by notifying the Trustee of such exercise at
least 45 but not more than 60 calendar days prior to Stated Maturity of such
Note in effect prior to the exercise of such option (the "Original Stated
Maturity Date"). If the Company so notifies the Trustee of such exercise, the
Trustee will send by telegram, telex, facsimile transmission, or letter (first
class, postage prepaid) to the Holder of this Note not later than 40 calendar
days prior to the Original Stated Maturity Date a notice (the "Extension
Notice") indicating (ii) that the Company has elected to extend the Stated
Maturity of the Note, (i) the new Stated Maturity, (iii) the interest rate
applicable to the Extension Period, and (iv) the provisions, if any, for
redemption during such Extension Period, including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during such Extension Period. Upon the Trustee's sending
of the Extension Notice, Stated Maturity of this Notice shall be extended
automatically and, except as modified by the Extension Notice and as described
in the next two paragraphs, this Note will have the same terms as prior to the
sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days before the
Original Stated Maturity Date of this Note, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to send by
telegram, telex, facsimile transmission, or letter (first class, postage
prepaid) notice of such higher interest rate to the Holder of this Note. Such
notice shall be irrevocable. All Notes with respect to which Stated Maturity is
extended will bear such higher interest rate for the Extension Period, whether
or not tendered for repayment as provided in the next paragraph.
If the Company extends the Stated Maturity of this Note, the Holder will
have the option to elect prepayment of this Note by the Company on the Original
Stated Maturity Date at a price equal to the principal amount hereof, plus
interest accrued and unpaid thereon to such date. In order or obtain prepayment
on the Original Stated Maturity Date once the Company has extended the Stated
Maturity hereof, the Holder must follow the procedures set forth under Section 4
for optional prepayment except that the period for delivery or notification to
the Trustee shall be at least 25 but not more than 35 calendar days prior to the
Original Stated Maturity Date. A Holder who has tendered this Note for
prepayment following receipt of an Extension Notice may revoke such tender for
prepayment by written notice to the Trustee received prior to the close of
business on the 10th calendar day before the Original Stated Maturity Date.
SECTION 7. Sinking Fund. This Note will not be subject to any sinking
fund.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything herein
to the contrary, if this Note is an Original Issue Discount Note, the amount
payable in the event of redemption or repayment prior to the Stated Maturity
hereof in lieu of the principal amount due at the Stated Maturity
hereof shall be the Amortized Face Amount of this Note as of the redemption date
or the date of repayment, as the case may be. The "Amortized Face Amount" of
this Note shall be the amount equal to (a) the Issue Price (as set forth on the
face hereof) plus (b) that portion of the difference between the Issue Price and
the principal amount hereof that has accrued at the yield to maturity (as set
forth on the face hereof) (computed in accordance with generally accepted United
States bond yield computation principles) at the date as of which the Amortized
Face Amount is calculated but in no event shall the Amortized Face Amount of
this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to
Notes of this series shall occur and be continuing, the principal of the Notes
of this series may be declared due and payable in the manner and with the effect
provided in the Indenture; provided, however, that notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount so declared due and payable shall be the Amortized Face Amount of
this Note as of the date of such declaration.
SECTION 10. Modifications and Waivers; Obligation of the Company
Absolute. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holder of the Debt Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Debt Securities
at the time outstanding for each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Debt Securities of each series at the time outstanding, on behalf
of the Holders of all 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 Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates, and in the coin or
currency, herein prescribed.
SECTION 11. Defeasance and Covenant Defeasance. The Indenture contains
provisions for defeasance at any time of (a) the entire indebtedness of the
Company on this Note and (b) certain restrictive covenants and the related
Events of Default, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise noted on the face
hereof, the Notes of this series are issuable only in global or certificated
registered form, without coupons, in denominations of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth and to the limitations described below, if
applicable, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein set forth and to the limitations
described below, if applicable, the transfer of this Note is registerable in the
securities register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City 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 Notes of this series and of
like tenor, of authorized denominations and for the same Stated Maturity and
aggregate principal amount, will be issued to the designated transferee or
transferees.
If this Note is a Global Note (as specified on the face hereof), this Note
is exchangeable only if (x) the U.S. Depositary notifies the Company that it is
unwilling or unable to continue as U.S. Depositary for this global Note or if at
any time the U.S. Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for certificated
Notes in registered form, or (z) an Event of Default, or an event which with the
passage of time or the giving of notice would become an Event of Default, with
respect to the Notes represented hereby has occurred and is continuing, provided
that the definitive Notes so issued in exchange for this permanent Global Note
shall be in denominations of $1,000 and integral multiples thereof and be of
like aggregate principal amount and tenor as the portion of this permanent
Global Note to be exchanged, and provided further that, unless the Company
agrees otherwise, Notes of this series in certificated registered form will be
issued in exchange for this permanent Global Note, or any portion hereof, only
if such Notes in certificated registered for were requested by written notice
to the Trustee or the Securities Registrar by or on behalf of a person who is
beneficial owner of an interest hereof given through the Holder hereof. Except
as provided above, owners of beneficial interests in this permanent global Note
will not be entitled to receive physical delivery of Notes in certificated
registered form and will not be considered the Holders thereof for any purpose
under the Indenture.
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.
SECTION 14. Owners. Prior to due presentment of this Note 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 Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and none of
the Company, the Trustee or any such agent shall be affected by notice to the
contrary.
SECTION 15. Governing Law. The Indenture and the Notes shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are defined
in the Indenture shall have the meanings assigned to them in the Indenture; and
all references in the Indenture to "Debt Security" or "Debt Securities" shall be
deemed to include the Notes. "Business Day" means any Monday, Tuesday,
Wednesday, Thursday, or Friday that in The City of New York is not a day on
which banking institutions are authorized or required by law, regulation, or
executive order to close; provided that with respect to a Specified Currency,
such day is also not a day on which banking institutions are authorized or
required by law, regulation, or executive order to close in the principal
financial center of the country of such Specified Currency (or in the case of
ECUs, is not a day designated as an ECU Non-Settlement Day by the ECU Banking
Association in Paris or otherwise generally regarded in the ECU interbank market
as a day on which payment on ECUs shall not be made).
OPTION TO ELECT PREPAYMENT
[To be completed only if this Note is prepayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have the
Company prepay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Prepayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
prepayment, if this Note is to be prepaid pursuant to Section 4 of this Note, or
(ii) 100% of the principal amount of this Note to be prepaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be prepaid pursuant to Section 5 hereof, or to the Original Stated Maturity
Date, if this Note is to be prepaid pursuant to Section 6 hereof. Specify the
denomination or denominations (which shall be $1,000 or integral multiples
thereof or, if the Note is denominated in a currency other than U.S. dollars, an
Authorized Denomination) of the Note or Notes to be issued to the Holder for the
portion of the within Note not being prepaid (in the absence of any
specification, one such Note will be issued for the portion not being prepaid):
Dated:___________________ _____________________________
Signature
Sign exactly as name appears on the
front of this Note.
Principal amount to be prepaid Indicate address where check is to be
if amount to be prepaid is less sent, if prepaid:
than the entire principal amount _____________________________
of this Note (principal amount _____________________________
remaining must be an authorized
denomination)
$________________________ _____________________________
(which shall be an integral
multiple of $1,000 or, if the Note
is denominated in a currency other
than U.S. dollars, of an amount equal SOCIAL SECURITY OR OTHER
to the integral multiples referred to TAXPAYER ID NUMBER
on the face hereof under "Authorized
Denominations" (or, if no such reference ____________________________
is made, an amount equal to the minimum
Authorized Denomination)).
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Custodian
UNIF GIFT MIN ACT _________________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_________________________________
(State)
Additional abbreviations may also be used though not in the above list.
---------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
_____________________________
______________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
_____________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________ attorney to transfer said Note on the books of the
Company, with full power of substitution in the premises.
Dated: _______________ _______________________________________________
Signature
Sign exactly as name appears on the front of
this Note [SIGNATURE MUST BE GUARANTEED by a
commercial bank, a trust company or by
a member of the New York Stock Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
[Face of Note]
CUSIP NO. _________________ PRINCIPAL AMOUNT:
REGISTERED NO. FLR________________ $
DIAMOND SHAMROCK, INC.
MEDIUM-TERM NOTE, SERIES B
(Floating Rate)
If the registered owner of this Note (as indicated below) is The
Depository Trust Company (the "U.S. Depositary") or a nominee of the U.S.
Depositary, this Note is a Global Note and the following legend is applicable:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company (55 Water Street, New York, New York) to the issuer or
its agent for registration of transfer, exchange or payment, and any certificate
issued is registered in the name of CEDE & CO., or such other name as requested
by an authorized representative of The Depository Trust Company and any payment
is made to CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered owner hereof,
CEDE & CO., has an interest herein.
The following summary of terms is subject to the information set forth on
the reverse hereof:
ORIGINAL ISSUE DATE: OPTIONAL REDEMPTION: ____YES ____NO
STATED MATURITY: INITIAL REDEMPTION DATE:
SPECIFIED CURRENCY: REDEMPTION PRICE: Initially __% of Principal
Amount and declining by __% of the Principal
Amount on each anniversary of the Initial
Redemption Date until the Redemption Price
is 100% of the Principal Amount.
AUTHORIZED DENOMINATIONS:
OPTION TO ELECT PAYMENTS IN U.S. DOLLARS:
____YES ____NO
FORM: _____ BOOK ENTRY
_____ CERTIFICATED
INTEREST RATE BASIS: OPTION TO ELECT PREPAYMENT: ____YES ____NO
INDEX MATURITY: OPTIONAL PREPAYMENT DATES:
REGULAR RECORD DATES: OPTIONAL PREPAYMENT PRICES:
INITIAL INTEREST RATE: OPTIONAL INTEREST RESET: _____YES ____NO
MAXIMUM INTEREST RATE: OPTIONAL INTEREST RESET DATES:
MINIMUM INTEREST RATE: OPTIONAL EXTENSIONS OF MATURITY:____YES____NO
SPREAD: EXTENSION PERIOD:
SPREAD MULTIPLIER: NUMBER OF EXTENSION PERIODS:
INTEREST RESET PERIOD: FINAL MATURITY DATE:
INTEREST RESET DATES: OTHER PROVISIONS:
INTEREST DETERMINATION DATE:
INTEREST PAYMENT DATES:
OVERDUE RATE:
CALCULATION AGENT:
CURRENCY DETERMINATION AGENT:
U.S. DEPOSITARY:
AMORTIZING NOTE: ____YES _____NO
If this Debt Security was issued with "original issue discount" for
purposes of Section 1273 of the Internal Revenue Code of 1986, as amended, the
following shall be completed:
ORIGINAL ISSUE DISCOUNT SECURITY: TOTAL AMOUNT OF OID: ISSUE PRICE (expressed
___Yes ____ No as percentage of
aggregate principal
amount):
YIELD TO MATURITY: SHORT ACCRUAL PERIOD OID: METHOD USED TO DETERMINE
YIELD FOR SHORT ACCRUAL
PERIOD:
___Approximate ___Exact
DIAMOND SHAMROCK, INC., a corporation duly organized and existing under the
laws of Delaware (herein called the "Company," which term includes any successor
corporation under the Indenture referred to on the reverse hereof), for value
received, hereby promises to pay to _______________ or registered assigns, the
principal sum set forth above on the Stated Maturity shown above, and to pay
interest thereon from the Original Issue Date shown above or from and including
the most recent Interest Payment Date (as defined below) to which interest has
been paid or duly provided for, as the case may be.
Interest will be paid on the Interest Payment Dates shown above ("Interest
Payment Dates"), at the rate per annum determined in accordance with the
provisions on the reverse hereof, depending on the Interest Rate Basis specified
above, commencing with the first such Interest Payment Date next succeeding the
Original Issue Date shown above (except as provided below) until the principal
hereof is paid or made available for payment and on Stated Maturity, and, if
specified above, interest shall accrue on any overdue principal and on any
overdue installment of interest (to the extent that the payment of such interest
shall be legally enforceable) at the Overdue Rate per annum set forth above.
The interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, be paid to the Person in whose
name this Note (or one or more predecessor Notes) is registered at the close of
business on the Regular Record Date set forth above next preceding such Interest
Payment Date, which shall be the 15th calendar day next preceding such Interest
Payment Date. The first payment of interest on any Note originally issued
between a Regular Record Date and an Interest Payment Date will be made on the
Interest Payment Date following the next succeeding Regular Record Date to the
registered owner on such succeeding Regular Record Date. Except as otherwise
provided in the Indenture, any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Note (or one
or more predecessor Notes) 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 to be given to Holders of Notes of this series not less
than 10 calendar 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 Notes of this series may be listed, and upon
such notice as may be required by such exchange, all as more fully provided in
said Indenture.
Payments of interest to be paid in U.S. dollars (other than interest, and
if this is an Amortizing Note, principal (if this is not a Global Note) payable
at Stated Maturity) will be made by mailing a check to the Holder at the address
of the Holder appearing in the Security Register as of the applicable Regular
Record Date. Notwithstanding the foregoing, at the option of the Company, all
payments of interest and, if this is an Amortizing Note, principal on this Note
may be made by wire transfer of immediately available funds to an account
maintained by such Holder with a bank located in the United States as
designated by the Holder not less than 15 calendar days prior to the Interest
Payment Date. If a Holder holds U.S. $10,000,000 or more in aggregate principal
amount of Notes of like tenor and terms (including the same Interest Payment
Date) (or is the Holder of the equivalent thereof in a Specified Currency other
than U.S. dollars), such Holder shall be entitled to receive payments of
interest (other than at Stated Maturity or upon earlier redemption or repayment)
in U.S. dollars by wire transfer of immediately available funds, but only if
appropriate payment instructions have been received in writing by the Trustee
not less than 15 calendar days prior to the applicable Interest Payment Date.
Simultaneously with the election by the Holder to receive payments in a
Specified Currency other than U.S. dollars (by written request to the Trustee,
as provided below), the Holder shall provide appropriate payment instructions to
the Trustee, and all such payments will be made in immediately available funds
to a bank account maintained by the Holder in the country of the Specified
Currency (or, with respect to ECUs, Brussels). If such a payment with respect
to this Note cannot be made by wire transfer because the required designation
has not been received by the Trustee on or before the requisite date or for any
other reason, a notice will be mailed to the Holder at its registered address
requesting a designation pursuant to which such wire transfer can be made and,
upon the Trustee's receipt of such a designation, such payment will be made
within 15 days of such receipt. The Company will pay any administrative costs
imposed by banks in connection with making payments by wire transfer, but not
any tax, assessment, or governmental charge imposed upon the Holder of this
Note. In the event that payment is so made in accordance with the instructions
of the Holder, such wire transfer shall be deemed to constitute full and
complete payment of such interest and principal on this Note. If this is not a
Global Note, payment of the principal, premium, if any, and interest payable at
Maturity in respect of this Note will be paid in immediately available funds
upon surrender of this Note accompanied by wire instructions at the principal
office of the Trustee, provided that the Note is presented in time for the
Trustee to make such payments in such funds in accordance with its normal
procedures.
If the Holder of this Note (as indicated above) is the U.S. Depositary or a
nominee of the U.S. Depositary, this Note is a Global Note and the following
legend is applicable except as specified on the reverse hereof: THIS GLOBAL
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE U.S. DEPOSITARY OR BY A
NOMINEE OF THE U.S. DEPOSITARY TO THE U.S. DEPOSITARY OR ANOTHER NOMINEE OF THE
U.S. DEPOSITARY OR BY THE U.S. DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF
THE U.S. DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS NOTE SET FORTH
ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES HAVE THE
SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an Authenticating
Agent, by manual signature of an authorized signatory, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated:
DIAMOND SHAMROCK, INC.
By: _________________________________
Its: _________________________________
Attest: ______________________________
Its: ______________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the
series designated herein and referred
to in the within-mentioned Indenture.
THE FIRST NATIONAL BANK OF CHICAGO
as Trustee
By: _____________________________
Authorized Officer
[Reverse of Note]
DIAMOND SHAMROCK, INC.
MEDIUM-TERM NOTE, SERIES B
SECTION 1. General. This Note is one of a duly authorized issue of
Securities of the Company (herein called the "Notes"), issued and to be issued
in one or more series under an Indenture, dated as of December 15, 1989 (herein
called the "Indenture"), between the Company and The First National Bank of
Chicago, 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
Company, the Trustee and the Holders of the Notes and of the terms upon which
the Debt Securities are, and are to be, authenticated and delivered. This Note
is one of the Debt Securities of the series designated on the face hereof. The
Notes may bear different dates, mature at different times, bear interest at
different rates, be subject to different redemption provisions and may otherwise
vary, all as provided in the Indenture. The Notes are limited to $150,000,000
in aggregate principal amount (or the equivalent thereof in the Specified
Currency, calculated at the Market Exchange Rate (as defined below) on the
applicable trade date).
SECTION 2. Interest Rate Calculations; Payments. The interest rate on
this Note will be equal to either (i) the interest rate calculated by reference
to the specified Interest Rate Basis plus or minus the Spread, if any, or (ii)
the interest rate calculated by reference to the specified Interest Rate Basis
multiplied by the Spread Multiplier, if any. The "Spread" is the number of
basis points (one basis point equals one-hundredth of a percentage point)
specified on the face hereof as being applicable to this Note, and the "Spread
Multiplier" is the percentage specified on the face hereof as being applicable
to this Note. Set forth on the face hereof is the Interest Rate Basis and the
Spread or Spread Multiplier, if any, and the maximum or minimum interest rate
limitation, if any, applicable to this Note. Set forth on the face hereof are
particulars as to the Calculation Agent (unless specified otherwise, The First
National Bank of Chicago (in such capacity, the "Calculation Agent")), Index
Maturity, Original Issue Date, the interest rate in effect for the period from
the Original Issue Date to the first Interest Reset Date set forth on the face
hereof (the "Initial Interest Rate"), Interest Determination Dates, Interest
Payment Dates, Regular Record Dates, and Interest Reset Dates with respect to
this Note.
Except as provided below, interest on this Note will be payable (i) if this
Note resets daily, weekly, or monthly, on the third Wednesday of each month or
on the third Wednesday of March, June, September, and December of each year, as
specified on the face hereof; (ii) if this Note resets quarterly, on the third
Wednesday of March, June, September, and December of each year; (iii) if this
Note resets semiannually, on the third Wednesday of each of two months of each
year specified on the face hereof; and (iv) if this Note resets annually, on the
third Wednesday of one month of each year specified on the face hereof (each
such day being an "Interest Payment Date"), and in each case at Maturity. If
any Interest Payment Date, other than Maturity, for this Note would otherwise be
a day that is not a Business Day, such Interest Payment Date shall be postponed
to the next day that is a Business Day (as defined below), except that if this
Note is a LIBOR Note, if such Business Day is in the next succeeding calendar
month, such Interest Payment Date shall be the immediately preceding London
Business Day. If the Maturity for this Note falls on a day that is not a
Business Day, payment of principal, premium, if any, and interest with respect
to this Note will be made on the next succeeding Business Day with the same
force and effect as if made on the due date, and no interest shall be payable on
the date of payment for the period from and after the due date.
The rate of interest on this Note will be reset daily, weekly, quarterly,
semiannually, or annually (such period being the "Reset Period" for such Note,
and the first day of each Reset Period being an "Interest Reset Date"), as
specified on the face hereof. The Interest Reset Date will be, if this Note
resets daily, each Business Day; if this Note resets weekly (unless the Interest
Rate Basis on the face hereof is the Treasury Rate), the Wednesday of each week;
if this Note resets weekly and the Interest Rate Basis on the face hereof is the
Treasury Rate, the Tuesday of each week; if this Note resets monthly (unless the
Interest Rate Basis on the face hereof is the 11th District Cost of Funds Rate),
the third Wednesday of each month; if this Note resets monthly and the Interest
Rate Basis on the face hereof is the 11th District Cost of Funds Rate, the first
calendar date of the month; if this Note resets quarterly, the third Wednesday
of each March, June, September, and December; if this Note resets semiannually,
the third Wednesday of the two months of each year specified on the face hereof;
and if this Note resets annually, the third Wednesday of one month of each year
specified on the face hereof; provided, however, that the interest rate in
effect from the date of issue to the first Interest Reset Date will be the
Initial Interest Rate specified on the face hereof. If the Interest Reset Date
would otherwise be a day that is not a Business Day, the Interest Reset Date
shall be postponed to the next day that is a Business Day, except that if the
Interest Rate Basis on the face hereof is LIBOR, if such Business Day is in the
next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. Each adjusted rate shall be applicable on
and after the Interest Reset Date to which it relates to, but not including, the
next succeeding Interest Reset Date or until Stated Maturity or the date of
redemption or prepayment, as the case may be.
The interest rate for each Reset Period will be the rate determined by the
Calculation Agent on the Calculation Date (as defined below) pertaining to the
Interest Determination Date pertaining to the Interest Reset Date for such Reset
Period. Unless otherwise specified on the face hereof, the "Interest
Determination Date" pertaining to an Interest Reset Date for (a) a Commercial
Paper Rate Note (the "Commercial Paper Interest Determination Date"), (b) a CD
Rate Note (the "CD Interest Determination Date"), (c) a CMT Rate Note (the "CMT
Interest Determination Date"), (d) a Federal Funds Rate Note (the "Federal Funds
Interest Determination Date'), or (e) a Prime Rate Note (the "Prime Interest
Determination Date") will be the second Business Day prior to such Interest
Reset Date. Unless otherwise specified on the face hereof, the Interest
Determination Date pertaining to an Interest Reset Date for an 11th District
Cost of Funds Rate Note (the "11th District Interest Determination Date") will
be the last Business Day of the month immediately preceding such Interest Reset
Date on which the Federal Home Loan Bank of San Francisco (the "FHLB of San
Francisco") publishes the Index (as defined below). Unless otherwise specified
on the face hereof, the Interest Determination Date pertaining to an Interest
Reset Date for a LIBOR Note (the "LIBOR Interest Determination Date") will be
the second London Business Day (as defined below) immediately preceding each
Interest Reset Date. Unless otherwise specified on the face hereof, the
Interest Determination Date pertaining to an Interest Reset Date for a Treasury
Rate Note (the "Treasury Interest Determination Date") will be the day of the
week in which such Interest Reset Date falls on which Treasury bills would
normally be auctioned. Treasury bills are usually sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
usually held on the following Tuesday, except that such auction may be held on
the preceding Friday. If, as a result of a legal holiday, an auction is so held
on the preceding Friday, such Friday will be the Treasury Interest Determination
Date pertaining to the Reset Period commencing in the next succeeding week, if
an auction date shall fall on any Interest Reset Date for a Treasury Rate Note,
then such Interest Reset Date shall instead be the first Business Day
immediately following such auction date.
Unless otherwise specified on the face hereof, the "Calculation Date" pertaining
to any Interest Determination Date shall be the earlier of (i) the tenth
calendar day after the Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day, or (ii) the Business Day
preceding the applicable Interest Payment Date or Maturity, as the case may be.
As used herein, "Business Day" means, unless otherwise specified on the
face hereof, any Monday, Tuesday, Wednesday, Thursday or Friday that in The City
of New york is not a day on which banking institutions are authorized or
required by law, regulation, or executive order to close and, if the
Interest Rate Basis of this Note is LIBOR, is also a London Business Day;
provided that with respect to a Specified Currency, such day is also not a day
on which banking institutions are authorized or required by law, regulation, or
executive order to close in the principal financial center of the country of
such Specified Currency (or in the case of ECUs, is not a day designated as an
ECU Non-Settlement Day by the ECU Banking Association in Paris or otherwise
generally regarded in the ECU interbank market as a day on which payment on ECUs
shall not abe made). As used herein, "London Business Day" means any day (a) if
the Designated LIBOR Currency is other than the ECU, on which dealings in
deposits in such Designated LIBOR Currency are transacted in the London
interbank market or (b) if the Designated LIBOR Currency is the ECU, that is not
designated as an ECU Non-Settlement Day by the ECU Banking Association in Paris
or otherwise generally regarded in the ECU interbank market as a day on which
payments on ECUs shall not abe made.
"Index Maturity" means the period to maturity of the instrument or
obligation on which the interest rate formula is based, as specified on
the face hereof.
Unless otherwise specified on the face hereof, if this Note is
specified on the face hereof as an Amortizing Note, payments with respect to
this Note will be applied first to interest due and payable hereon and then to
the reduction of the unpaid principal amount hereof. If this Note is
specified on the face hereof as an Amortizing Note, a table setting forth
repayment information in respect to this Note will be provided to the original
purchaser hereof and will be available, upon request, to subsequent Holders.
Unless otherwise indicated on the face hereof, interest on this Note will
accrue from and including the date of issue or from and including the
immediately preceding Interest Payment Date in respect of which interest has
been paid or duly provided for, as the case may be, to but excluding the
Interest Payment Date or the Maturity, as the case may be. Accrued interest is
calculated by multiplying the face amount of this Note by an accrued interest
factor. This accrued interest factor is computed by adding the interest factors
calculated for each day from the date of issue, or from the last date to which
interest has been paid, to the date for which accrued interest is being
calculated. The interest factor for each such day is computed by dividing the
interest rate applicable to such day by 360, in the case of Commercial Paper
Rate Notes, CD Rate Notes, Federal Funds Rate Notes, 11th District Cost of Funds
Rate Notes, LIBOR Notes, and Prime Rate Notes, or by the actual number of days
in the year, in the case of CMT Rate Notes or Treasury Rate Notes.
The Calculation Agent shall calculate the interest rate on this Note, as
provided below. The Calculation Agent will, upon the request of the Holder of
this Note, provide the interest rate then in effect and, if then determined, the
interest rate which will become effective as a result of a determination made
with respect to the most recent Interest Determination Date with respect to this
Note. The Trustee shall act as the initial Calculation Agent for the Notes.
For purposes of calculating the rate of interest payable on this Note, the
Company will enter into an agreement with the Calculation Agent. The
Calculation Agent's determination of any interest rate shall be final and
binding in the absence of manifest error.
Notwithstanding the determination of the interest rate as provided below,
the interest rate on this Note for any interest period shall not be greater than
the maximum interest rate, if any, or less than the minimum interest rate, if
any, specified on the face hereof. The interest rate on this Note will in no
event be higher than the maximum rate permitted by New York or other
applicable law, as the same may be modified by United States law of general
application.
Determination of Commercial Paper Rate. If the Interest Rate Basis specified on
the face hereof is Commercial Paper Rate, the interest rate determined with
respect to the Commercial Paper Rate Interest Determination Date shall be the
Commercial Paper Rate plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, as specified on the face hereof, as determined on
such Commercial Paper Rate Interest Determination Date.
"Commercial Paper Rate" means, with respect to any Commercial Paper
Interest Determination Date, the Money Market Yield (calculated as described
below) of the rate on such date for commercial paper having the Index Maturity
designated on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication of the Board of Governors ("H.15(519)")
under the heading "Commercial Paper." In the event that such rate is not
published prior to 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Commercial Paper Interest Determination Date, then the
Commercial Paper Rate with respect to such Commercial Paper Interest
Determination Date shall be the Money Market Yield of the rate on such
Commercial Paper Interest Determination Date for commercial paper having the
Index Maturity designated on the face hereof as published by the Federal Reserve
Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for U.S. Government Securities" or any successor publication
("Composite Quotations") under the heading "Commercial Paper." If by 3:00 P.M.,
New York City time, on such Calculation Date such rate is not yet published in
either H.15(519) or Composite Quotations, then the Commercial Paper Rate for
such Commercial Paper Interest Determination Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean of
the offered rates (quoted on a bank discount basis) as of 11:00 A.M., New York
City time, on such Commercial Paper Interest Determination Date, of three
leading dealers of commercial paper in The City of New York selected by the
Calculation Agent for commercial paper having the Index Maturity designated on
the face hereof placed for an industrial issuer whose bond rating is "AA," or
the equivalent, from a nationally recognized securities rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate with
respect to such Commercial Paper Interest Determination Date will be the
Commercial Paper Rate in effect immediately prior to such Commercial Paper
Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage rounded,
if necessary, to the nearest one hundred-thousandth of a percent) calculated in
accordance with the following formula:
Money Market Yield = D x 360
360 - (D x M) x 100
where "D" refers to the per annum rate for commercial paper, quoted on a bank
discount basis and expressed as a decimal; and "M" refers to the actual
number of days in the period for which accrued interest is being calculated.
Determination of CD Rate. If the Interest Rate Basis specified on the face
hereof is CD Rate, the interest rate determined with respect to the CD Interest
Determination Date shall be the CD Rate plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, as specified on the face hereof, as
determined on such CD Interest Determination Date.
"CD Rate" means, with respect to any CD Interest Determination Date, the
rate on such date for negotiable certificates of deposit having the Index
Maturity designated on the face hereof as published in H.15(519) under the
heading "CDs (Secondary Market)." In the event that such rate is not published
prior to 9:00 A.M., New York City time, on the Calculation Date pertaining to
such CD Interest Determination Date, then the CD Rate with respect to such CD
Interest Determination Date shall be the rate on such CD Interest Determination
Date for negotiable certificates of deposit having the Index Maturity
designated on the face hereof as published in Composite Quotations under the
heading "Certificates of Deposit." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, then the CD Rate on such CD Interest Determination Date shall be
calculated by the Calculation Agent and shall be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Interest Determination Date of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable certificates of deposit of major United States
money market banks (in the market for negotiable certificates of deposit) with a
remaining maturity closest to the Index Maturity specified on the face hereof in
a denomination of $5,000,000; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the CD Rate with respect to such CD Interest Determination Date will
be the CD Rate in effect immediately prior to such CD Interest Determination
Date.
Determination of CMT Rate. If the Interest Rate Basis specified on the face
hereof is CMT Rate, the interest rate determined with respect to the CMT
Interest Determination Date shall be the CMT Rate plus or minus the Spread, if
any, or multiplied by the Spread Multiplier, if any, as specified on the face
hereof, as determined on such CMT Interest Determination Date.
"CMT Rate" means, with respect to any CMT Interest Determination Date, the
rate displayed in the Designated CMT Telerate Page (as defined below) 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 (as defined below) for (i) if the Designated CMT Telerate
Page is 7055, the rate on such CMT Interest Determination Date and (ii) if the
Designated CMT Telerate Page is 7052, the week, or the month, as applicable,
ended immediately preceding the week in which the applicable CMT Interest
Determination Date occurs. If such rate is no longer displayed on the relevant
page, or if not displayed by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such CMT Interest Determination Date, then the CMT Rate for
such CMT Interest Determination Date will be such treasury constant maturity
rate for the Designated CMT Maturity Index as published in the relevant
H.15(519). If such rate is no longer published, or if not published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such CMT
Interest Determination Date, then the CMT Rate for such CMT Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Interest 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 Designated CMT Telerate Page and published
in the relevant H.15(519). If such information is not provided by 3:00 P.M.,
New York City time, on the Calculation Date pertaining to such CMT Interest
Determination Date, then the CMT Rate for the CMT Interest 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 closing offer side prices
as of approximately 3:30 P.M., New York City time, on the CMT Interest
Determination Date reported, according to their written records, by three
leading primary United States government securities dealers (each, a "Reference
Dealer") in The City of New York 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 Notes") 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. If the Calculation Agent
cannot obtain three such Treasury Note quotations, the CMT Rate for such CMT
Interest 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
offer side prices as of approximately 3:30 P.M., New York City time, on the CMT
Interest Determination Date of three Reference Dealers in The City of New York
(form 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 Notes 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 $100,000,000. If three or four (and not five) of such Reference
Dealers are quoting as described above, then the CMT Rate will be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of such quotes will be eliminated; provided, however, that if fewer than
three Reference Dealers selected by the Calculation Agent are quoting as
described herein, the CMT Rate will be the CMT Rate in effect on such CMT
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the quotes for the Treasury
Note with the shorter remaining term to maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones Telerate
Service on the page specified on the face hereof (or any other page as may
replace such page on that service for the purpose of displaying Treasury
Constant Maturities as published in H.15(519)), for the purposes of displaying
Treasury Constant Maturities as published in H.15(519). If no such page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity of
the Treasury Notes (either one, two, three, five, seven, ten, twenty or thirty
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be two years.
Determination of Federal Funds Rate. If the Interest Rate Basis specified on
the face hereof is Federal Funds Rate, the interest rate determined with
respect to the Federal Funds Interest Determination Date shall be the Federal
Funds Rate plus or minus the Spread, if any, or multiplied by the Spread
Multiplier, if any, specified on the face hereof, as determined on such Federal
Funds Interest Determination Date.
"Federal Funds Rate" means, with respect to any Federal Funds Interest
Determination Date, the rate on such date for Federal Funds as published in
H.15(519) under the heading "Federal Funds (Effective)." In the event that such
rate is not published prior to 9:00 A.M., New York City time, on the Calculation
Date pertaining to such Federal Funds Interest Determination Date, then the
Federal Funds Rate shall be the rate on such Federal Funds Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If by 3:00 P.M., New York City time, on such
Calculation Date such rate is not published in either H.15(519) or Composite
Quotations, then the Federal Funds Rate with respect to such Federal Funds
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the arithmetic mean (rounded, if necessary, to the nearest one hundred-
thousandth of a percent) of the rates as of 9:00 A.M., New York City time, on
such Federal Funds Interest Determination Date for the last transaction in
overnight Federal Funds arranged by three leading brokers of Federal Funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate with
respect to such Federal Funds Interest Determination Date will be the Federal
Funds Rate in effect immediately prior to such Federal Funds Interest
Determination Date.
Determination of 11th District Cost of Funds Rate. If the Interest Rate Basis
specified on the face hereof is 11th District Cost of Funds Rate, the interest
rate determined with respect to the 11th District Interest Determination Date
shall be the 11th District Cost of Funds Rate plus or minus the Spread, if any,
or multiplied by the Spread Multiplier, if any, specified on the face hereof, as
determined on such 11th District Interest Determination Date.
"11th District Cost of Funds Rate" means, with respect to any 11th District
Interest Determination Date, the rate equal to the monthly weighted average cost
of funds for the calendar month preceding such 11th District Cost of Funds Rate
Interest Determination Date as set forth under the caption "11th District" on
Telerate Page 7058 as of 11:00 A.M., San Francisco time, on such 11th District
Interest Determination Date. If such rate does not appear on Telerate page 7058
on any related 11th District Interest Determination Date, the 11th District Cost
of Funds Rate for such 11th District Interest Determination Date shall be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District that was most recently announced (the
"Index") by the FHLB of San Francisco as such cost of funds for the calendar
month preceding the date of such announcement. If the FHLB of San Francisco
fails to announce such rate for the calendar month next preceding such 11th
District Interest Determination Date, then the 11th District Cost of Funds Rate
for such 11th District Interest Determination Date will be the 11th District
Cost of Funds Rate then in effect on such 11th District Interest Determination
Date.
Determination of LIBOR. If the Interest Rate Basis specified on the face hereof
is LIBOR, the interest rate determined with respect to the LIBOR Interest
Determination Date shall be LIBOR plus or minus the Spread, if any, or
multiplied by the Spread Multiplier, if any, specified on the face hereof, as
determined on such LIBOR Interest Determination Date.
LIBOR will be determined by the Calculation Agent in accordance with the
following provisions:
(i) With respect to any LIBOR Interest Determination Date, LIBOR will
be either: (a) if "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the specified designated LIBOR Page
(as defined below) by its terms provides only for a single rate, in which case
such single rate shall be used) for deposits in the Designated LIBOR Currency
(as defined below) having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately following the LIBOR
Interest Determination Date, which appear on the Designated LIBOR Page specified
on the face hereof as of 11:00 A.M., London time, on that LIBOR Interest
Determination Date, if at least two such offered rates appear (unless, as
aforesaid, only a single rate is required) on such Designated LIBOR Page, or (b)
if "LIBOR Telerate" is specified on the face hereof, the rate for deposits in
the Designated LIBOR Currency (as defined below) having the Index Maturity
designated on the face hereof, commencing on the second London Business Day
immediately following such LIBOR Interest Determination Date, which appears on
the Designated LIBOR page specified on the face hereof as of 11:00 A.M. London
time on that LIBOR Interest Determination Date. Notwithstanding the foregoing,
if fewer than two offered rates appear on the Designated LIBOR Page with respect
to LIBOR Reuters (unless the specified Designated LIBOR Page with respect to
LIBOR Reuters by its terms provides only for a single rate, in which case such
single rate shall be used), or if no rate appears on the Designated LIBOR Page
with respect to LIBOR Telerate, whichever may be applicable, LIBOR in respect
of the related LIBOR Interest Determination Date will be determined as if the
parties had specified the rate described in clause (ii) below.
(ii) With respect to any LIBOR Interest Determination Date on which
fewer than two offered rates appear on the Designated LIBOR Page with respect to
LIBOR Reuters (unless the Designated LIBOR Page by its terms provides only for a
single rate, in which cases such single rate shall be used), or if no rate
appears on the designated LIBOR Page with respect to LIBOR Telerate, as the case
may be, the Calculation Agent will request the principal London office of each
of four major banks in the London interbank market selected by the Calculation
Agent to provide the Calculation Agent with its offered rate quotation for
deposits in the Designated LIBOR Currency (as defined below) for the period of
the Index Maturity specified on the face hereof, commencing on the second London
Business Day immediately following such LIBOR Interest Determination Date, to
prime banks in the London interbank market as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a principal amount that is
representative for a single transaction in such Designated LIBOR Currency in
such market at such time. If at least two such quotations are provided, LIBOR
determined on such LIBOR Interest Determination Date will be the arithmetic mean
of such quotations. If fewer than two quotations are provided, LIBOR determined
on such LIBOR Interest Determination Date will be the arithmetic mean of the
rates quoted as of 11:00 A.M. in the applicable major banks in such Principal
Financial Center (as defined below), on such LIBOR Interest Determination Date
by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Designated LIBOR Currency to leading banks,
commencing on the second London Business Day immediately following such LIBOR
Interest Determination Date, having the Index Maturity designated on the face
hereof in a principal amount that is representative for a single transaction in
such Designated LIBOR Currency in such market at such time; provided, however,
that if the banks so selected by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR determined on such LIBOR Interest
Determination Date will be LIBOR in effect on such LIBOR Interest Determination
Date.
"Designated LIBOR Currency" means the currency (including a composite
currency), if any, designated on the face hereof as the Designated LIBOR
Currency. If no such currency is designated in on the face hereof, the
Designated LIBOR Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) the display on the Reuters Monitor
Money Rates Service for the purpose of displaying the London interbank rates of
major banks for the applicable Designated LIBOR Currency (if "LIBOR Reuters" is
designated on the face hereof), or (b) the display on the Dow Jones Telerate
Service for the purpose of displaying the London interbank rates of major banks
for the applicable designated LIBOR Currency (if "LIBOR Telerate" is designated
on the face hereof). If neither LIBOR Reuters nor LIBOR Telerate is specified
on the face hereof, LIBOR for the applicable Designated LIBOR Currency will be
determined as if LIBOR Telerate (and, if the U.S. dollar is the Designated LIBOR
Currency, page 3750) had been chosen.
"Principal Financial Center" means, unless otherwise specified on the face
hereof, the capital city of the country that issues as its legal tender the
Designated LIBOR Currency of this Note, except that with respect to U.S. dollars
and ECUs, the Principal Financial Center shall be The City of New York and
Brussels, respectively.
Determination of Prime Rate. If the Interest Rate Basis specified on the face
hereof is the Prime Rate, the interest rate determined with respect to the Prime
Interest Determination Date shall be the Prime Rate plus or minus the Spread, if
any, or Spread Multiplier, if any, specified on the face hereof, as determined
on such Prime Interest Determination Date.
"Prime Rate" means, with respect to any Prime Interest Determination Date,
the rate set forth on such date in H.15(519) under the heading "Bank Prime
Loan." In the event that such rate is not published prior to 9:00 A.M., New
York City time, on the Calculation Date pertaining to such Prime Rate Interest
Determination Date, then the Prime Rate with respect to such Prime Interest
Determination Date shall be the arithmetic mean of the rates of interest
publicly announced by each bank that appears on the Reuters Screen NYMF Page as
such bank's prime rate or base lending rate as in effect for that Prime Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
NYMF Page for the Prime Interest Determination Date, the Prime Rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number of
days in the year divided by a 360-day year as of the close of business on such
Prime Interest Determination Date by four major money center banks in The City
of New York selected by the Calculation Agent. If fewer than two quotations are
provided, the Prime Rate with respect to such Prime Interest Determination Date
shall be determined on the basis of the rates furnished in The City of New York
by the appropriate number of substitute banks or trust companies organized and
doing business under the laws of the United States, or any state thereof, having
total equity capital of at least U.S. $500 million and being subject to
supervision or examination by Federal or state authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
bank or trust company selected as aforesaid is not quoting as mentioned in this
sentence, the Prime Rate with respect to such Prime Interest Determination Date
will be the Prime Rate in effect immediately prior to such Prime Interest
Determination Date. "Reuters Screen NYMF Page" means the display designated as
page "NYMF" on the Reuters Monitor Money Rate Service (or such other page as may
replace the NYMF page on the service for the purpose of displaying the prime
rate or base lending rate of major banks).
Determination of Treasury Rate. If the Interest Rate Basis specified on the
face hereof is Treasury Rate, the interest rate determined with respect to the
Treasury Interest Determination Date shall be the Treasury Rate plus or minus
the Spread, if any, or multiplied by the Spread Multiplier, if any, specified on
the face hereof, as determined on such Treasury Interest Determination Date.
"Treasury Rate" means, with respect to any Treasury Interest
Determination Date, the rate for the most recent auction of direct obligations
of the United States ("Treasury bills") having the Index Maturity specified on
the face hereof as published in H.15(519) under the heading, "Treasury bills --
auction average (investment)" or, if not so published by 3:00 P.M., New York
City time, on the Calculation Date pertaining to such Treasury Interest
Determination Date, the average auction rate (expressed as a bond equivalent, on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the U.S. Department of the Treasury. In the
event that such rate is not available by 3:00 P.M., New York City time, on such
Treasury Interest Determination Date shall be calculated by the Calculation
Agent and shall be a yield to maturity (expressed as a bond equivalent, on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
of the arithmetic mean of the secondary market bid rates, as of approximately
3:30 P.M., New York City time, on such Treasury Interest Determination Date, of
three leading primary U.S. government securities dealers selected by the
Calculation Agent for the issue of Treasury bills with a remaining maturity
closest to the Index Maturity designated on the face hereof; provided, however,
that if the dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate with respect to such
Treasury Interest Determination Date will be the Treasury Rate in effect
immediately prior to such Treasury Interest Determination Date.
The Calculation Agent shall calculate the interest rate on this Note in
accordance with the foregoing as soon as practicable after the Interest
Determination Date.
If the Specified Currency shown on the face hereof is a currency or
currency unit other than U.S. dollars, except as provided below, payments of
interest and principal (and premium, if any) with respect to this Note will be
made in U.S. dollars if the Holder of this Note on the relevant Regular
Record Date or at Maturity, as the case may be, has transmitted a written
request may be delivered by mail, by hand or by cable, telex or any other form
of facsimile transmission. Any such request for such payment in U.S. dollars to
the Paying Agent at its principal office on or prior to such Regular Record Date
or the date 15 days prior to Maturity, as the case may be. Such request made
with respect to this Note by a Holder will remain in effect with respect to any
further payments of interest and principal (and premium, if any) with respect to
this Note payable to such Holder, unless such request is revoked by written
notice received by the Paying Agent on or prior to the relevant Regular Record
Date or the date 15 days prior to Maturity, as the case may be (but no such
revocation may be made with respect to payments made on this Note if an Event of
Default has occurred with respect thereto or upon the giving of a notice of
redemption). A Holder whose Note is registered in the name of a broker or
nominee should contact such broker or nominee to determine whether and how an
election to receive payments in U.S. dollars may be made.
The U.S. dollar amount to be received by the Holder of this Note who elects
to receive payments in U.S. dollars will be based on the highest indicated bid
quotation for the purchase of U.S. dollars in exchange for the Specified
Currency obtained by the Currency Determination Agent (as defined below) as
approximately 11:00 A.M., New York City time, on the second Business Day next
preceding the applicable payment date (the "Conversion Date") from the bank
composite or multicontributor pages of the Quoting Source for (as defined below)
three (or two if three are not available) major banks in The City of New York.
The first three (or two) such banks selected by the Currency Determination Agent
which are offering quotes on the Quoting Source will be used. If fewer than two
such bid quotations are available at 11:00 A.M., New York City time, on the
second Business Day next preceding the applicable payment date, such payment
will be based on the Market Exchange Rate as of the second Business Day next
preceding the applicable payment date. If the Market Exchange Rate for such
date is not then available, such payment will be made in the Specified
Currency. As used herein, the "Quoting Source" means Reuters Monitor Foreign
Exchange Service, or if the Currency Determination Agent determines that such
service is not available, Telerate Monitor Foreign Exchange Service, or if the
Currency Determination Agent determines that neither service is available such
comparable display or other comparable manner of obtaining quotations as shall
be agreed between the Company and the Currency Determination Agent. All
currency exchange costs associated with any payment in U.S. dollars on this Note
will be borne by the Holder by deductions from such payment. Any currency
determination agent (the "Currency Determination Agent") with respect to this
Note is specified on the face hereof.
If payment in respect of this Note is required to be made in any currency
unit (e.g. ECUs) and such currency unit is unavailable, in the good faith
judgment of the Company, due to the imposition of exchange controls or other
circumstances beyond the Company's control, then all payments in respect of this
Note shall be made in U.S. dollars until such currency unit is again available.
The amount of each payment of U.S. dollars shall be computed on the basis of the
equivalent of the currency unit in U.S. dollars, which shall be determined by
the Currency Determination Agent on the following basis. The component
currencies of the currency unit for this purpose (the "Component Currencies")
shall be the currency amounts that were components of the currency unit as of
the Conversion Date. The equivalent of the currency unit in U.S. dollars shall
be calculated by aggregating the U.S. dollar equivalents of the Component
Currencies. The U.S. dollar equivalent of each of the Component Currencies
shall be determined by the Currency Determination Agent on the Basis of the
Market Exchange Rate for each such Component Currency as of the Conversion
Date. "Market Exchange Rate" means the noon buying rate in The City of New York
for cable transfers of such Specified Currency as certified for customs purposes
by the Federal Reserve Bank of New York.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a
Component Currency shall be divided or multiplied in the same proportion. If
two or more Component Currencies are consolidated into a single currency, the
amounts of those currencies as Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the amounts of the
consolidated Component Currencies expressed in such single currency. If any
Component Currency is divided into two or more currencies, the amount of the
original Component Currency shall be replaced by the amounts of such two or more
currencies, the sum of which shall be equal to the amount of the original
Component Currency.
All determinations referred to above made by the Currency Determination
Agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and binding on the Holder of this Note.
All percentages resulting from any calculations under this Note will be
rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward) and
all currency or currency unit or dollar amounts used in or resulting from any
such calculation in respect of the Notes will be rounded to the nearest one-
hundredth of a unit (with five one-thousandths being rounded upward) or nearest
cent, as the case may be.
SECTION 3. Redemption. If so specified on the face hereof, the Company
may at its option redeem this Note in whole or from time to time in part on or
after the date designated as the Initial Redemption Date on the face hereof at
the redemption price specified on the face hereof, together with accrued and
unpaid interest to the date of redemption, but interest installments whose
Stated Maturity is on or prior to the date of redemption will be payable to the
Holder of this Note of record at the close of business on the relevant Regular
Record Date referred to on the face hereof, all as provided in the Indenture.
The Company may exercise such option by causing the Trustee to mail a notice of
such redemption at least 30 but not more than 60 calendar days prior to the date
of redemption. In the event of redemption of this Note in part only, a new Note
or Notes for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof.
SECTION 4. Prepayment. If so specified on the face hereof, this Note will
be prepayable prior to Stated Maturity at the option of the Holder on the
Optional Prepayment Dates shown on the face hereof at the Optional Prepayment
Prices shown on the face hereof together with interest accrued and unpaid
thereon to the date of prepayment. In order for this Note (if it is prepayable
at the option of the Holder) to be prepaid prior to Stated Maturity, the Paying
Agent must receive at least 30 but not more than 45 calendar days prior to an
Optional Prepayment Date (i) this Note with the form below entitled "Option to
Elect Prepayment" duly completed or (ii) a telegram, telex, facsimile
transmission, or letter (first class, postage prepaid) from a member of a
national securities exchange or the National Association of Securities Dealers,
Inc. or a commercial bank or trust company in the United States of America
setting forth the name of the Holder of this Note, the principal amount of the
Note to be prepaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the option to elect prepayment is being
exercised thereby and a guarantee that this Note with the form below entitled
"Option to Elect Prepayment" duly completed will be received by the Paying Agent
not later than five Business Days after the date of such telegram, telex,
facsimile transmission, or letter (first class, postage prepaid). If the
procedure described in clause (ii) of the preceding sentence is followed, this
Note with such form duly completed must be received by the Trustee by such fifth
Business Day. Exercise of the prepayment option by the Holder of this Note
shall be irrevocable, except that a Holder who has tendered this Note for
prepayment may revoke any such tender for prepayment by written notice to the
Paying Agent received prior to the close of business on the tenth calendar day
prior to the prepayment date. The prepayment option may be exercised by the
Holder of this Note for less than the entire principal amount of the Note,
provided that the principal amount of the Note remaining outstanding after
prepayment is an authorized denomination. Upon such partial prepayment this
Note shall be cancelled and a new Note or Notes for the remaining principal
amount hereof shall be issued in the name of the Holder of this Note.
SECTION 5. Optional Interest Reset. If so specified on the face hereof,
the Spread or the Spread multiplier on this Note may be reset by the Company on
the date or dates specified on the face hereof (each an "Optional Interest Reset
Date"). The Company may exercise such option by notifying the Trustee of such
exercise at least 45 but not more than 60 calendar days prior to an Optional
Interest Reset Date. If the Company so notifies the Trustee of such exercise,
not later than 40 calendar days prior to each Optional Interest Reset Date, the
Trustee will send by telegram, telex, facsimile transmission, or letter (first
class, postage prepaid) to the Holder of this Note a notice (the "Reset Notice")
indicating (i) that the Company has elected to reset the Spread or the
Spread Multiplier, (ii) such new Spread or the Spread Multiplier and (iii) the
provisions, if any, for redemption during the period from such Optional Interest
Reset Date to the next Optional Interest Reset Date or, if there is no such next
Optional Interest Reset Date, to Stated Maturity of this Note (each such period
a "Subsequent Interest Period"), including the date or dates on which or the
period or periods during which and the price or prices at which such redemption
may occur during such Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 calendar days prior to an
Optional Interest Reset Date, the Company may, at its option, revoke the Spread
and/or the Spread Multiplier provided for in the Reset Notice and establish a
higher Spread and/or the Spread Multiplier for the Subsequent Interest Period
commencing on such Optional Interest Reset Date by causing the Trustee to send
by telegram, telex, facsimile transmission, or letter (first class, postage
prepaid) notice of such higher interest rate to the Holder of this Note. Such
notice shall be irrevocable. All Notes with respect to which the Spread and/or
the Spread Multiplier is reset on an Optional Interest Reset Date will bear such
higher Spread and/or the Spread Multiplier, whether or not tendered for
repayment as provided in the next paragraph.
If the Company elects prior to an Optional Interest Reset Date to reset the
interest rate of this Note, the Holder of this Note will have the option to
elect prepayment of this Note by the Company on such Optional Interest Reset
Date at a price equal to the principal amount hereof plus interest accrued and
unpaid thereon to such Optional Interest Reset Date. In order to obtain
prepayment on an Optional Interest Reset Date, the Holder must follow the
procedures set forth under Section 4 for optional prepayment except that the
period for delivery or notification in the Trustee shall be at least 25 but not
more than 35 calendar days prior to such Optional Interest Reset Date. If the
Holder has tendered this Note for prepayment following receipt of a Reset
Notice, the Holder may revoke such tender for prepayment by written notice to
the Trustee received prior to the close of business on the 10th calendar day
prior to such Optional Interest Reset Date.
SECTION 6. Optional Extension of Maturity. If so specified on the face
hereof, the Stated Maturity of this Note may be extended at the option of the
Company for the period or periods of from one to five whole years specified on
the face hereof (each an "Extension Period") up to but not beyond the date (the
"Final Maturity Date") set forth on the face hereof. The Company may exercise
such option with respect to a Note by notifying the Trustee of such exercise at
least 45 but not more than 60 calendar days prior to Stated Maturity of such
Note in effect prior to the exercise of such option (the "Original Stated
Maturity Date"). If the Company so notifies the Trustee of such exercise, the
Trustee will send by telegram, telex, facsimile transmission, or letter (first
class, postage prepaid) to the Holder of this Note not later than 40 calendar
days prior to the Original Stated Maturity Date a notice (the "Extension
Notice") indicating (i) that the Company has elected to extend the Stated
Maturity of this Note, (ii) the new Stated Maturity, (iii) the interest rate
applicable to the Extension Period, and (iv) the provisions, if any, for
redemption during such Extension Period, including the date or dates on which or
the period or periods during which and the price or prices at which such
redemption may occur during such Extension Period. Upon the Trustee's sending
of the Extension Notice, Stated Maturity of this Note shall be extended
automatically and, except as modified by the Extension Notice and as described
in the next two paragraphs, this Note will have the same terms as prior to the
sending of such Extension Notice.
Notwithstanding the foregoing, not later than 20 calendar days before the
Original Stated Maturity Date of this Note, the Company may, at
its option, revoke the Spread and/or Spread Multiplier provided for in the
Extension Notice and establish a higher interest rate for the Extension Period
by causing the Trustee to send by telegram, telex, facsimile transmission, or
letter (first class, postage prepaid) notice of such higher Spread and/or Spread
Multiplier to the Holder of this Note. Such notice shall be irrevocable. All
Notes with respect to which Stated Maturity is extended will bear such higher
Spread and/or Spread Multiplier for the Extension Period, whether or not
tendered for repayment as provided in the next paragraph.
If the Company extends the Stated Maturity of this Note, the Holder will
have the option to elect prepayment of this Note by the Company on the Original
Stated Maturity Date at a price equal to the principal amount hereof, plus
interest accrued and unpaid thereon to such date. In order to obtain
prepayment on the Original Stated Maturity Date once the Company has extended
the Stated Maturity hereof, the Holder must follow the procedures set forth
under Section 4 for optional prepayment except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 calendar
days prior to the Original Stated Maturity Date. A Holder who has tendered this
Note for repayment following receipt of an Extension Notice may revoke such
tender for prepayment by written notice to the Trustee received prior to the
close of business on the 10th calendar day before the Original Stated Maturity
Date.
SECTION 7. Sinking Fund. This Note will not be subject to any sinking
fund.
SECTION 8. Original Issue Discount Notes. Notwithstanding anything herein
to the contrary, if this Note is an Original Issue Discount Note, the amount
payable in the event of redemption or repayment prior to the Stated Maturity
hereof in lieu of the principal amount due at the Stated Maturity hereof shall
be the Amortized Face Amount of this Note as of the redemption date or the date
of repayment, as the case may be. The "Amortized Face Amount" of this Note
shall be the amount equal to (a) the Issue Price (as set forth on the face
hereof) plus (b) that portion of the difference between the Issue Price and the
principal amount hereof that has accreted at the yield to maturity (as set forth
on the face hereof) (computed in accordance with generally accepted United
States bond yield computation principles) at the date as of which the Amortized
Face Amount is calculated but in no event shall the Amortized Face Amount of
this Note exceed its principal amount.
SECTION 9. Events of Default. If any Event of Default with respect to
Notes of this series shall occur and be continuing, the principal of the Notes
of this series may be declared due and payable in the manner and with the effect
provided in the Indenture; provided, however, that notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount so declared due and payable shall be the Amortized Face Amount of
this Note as of the date of such declaration.
SECTION 10. Modifications and Waivers; Obligation of the Company
Absolute. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holder of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Debt Securities
at the time outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in principal
amount of the Debt Securities of each series at the time outstanding, on behalf
of the Holders of all 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 Note shall be conclusive and binding upon such Holder and upon all
future Holders of this Note and of any Note 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 Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of, and premium, if any, and
interest on this Note at the times, places and rates, and in the coin or
currency, herein prescribed.
SECTION 11. Defeasance and Covenant Defeasance. The Indenture contains
provisions for defeasance at any time of (a) the entire indebtedness of the
Company on this Note and (b) certain restrictive covenants and the related
Events of Default, upon compliance by the Company with certain conditions set
forth therein, which provisions apply to this Note.
SECTION 12. Authorized Denominations. Unless otherwise noted on the face
hereof, the Notes of this series are issuable only in global or certified
registered form, without coupons, in denominations of $1,000 and integral
multiples thereof. As provided in the Indenture and subject to certain
limitations therein set forth and to the limitations described below, if
applicable, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
SECTION 13. Registration of Transfer. As provided in the Indenture and
subject to certain limitations therein set forth and to the limitations
described below, if applicable, the transfer of this Note is registerable in the
Security Register upon surrender of this Note for registration of transfer at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, The City 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 Notes of this series and of
like tenor, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees.
If this Note is a Global Note (as specified on the face hereof), this Note
is exchangeable only if (x) the U.S. Depositary notifies the Company that it is
unwilling or unable to continue as U.S. Depositary for this Global Note or if at
any time the U.S. Depositary ceases to be a clearing agency registered under the
Securities Exchange Act of 1934, as amended, (y) the Company in its sole
discretion determines that this Note shall be exchangeable for certificated
Notes in registered form or (z) an Event of Default, or an event which with the
passage of time or the giving of notice would become an Event of Default, with
respect to the Notes represented hereby has occurred and is continuing, provided
that the definitive Notes so issued in exchange for this permanent Global Notes
shall be in denominations of $1,000 and integral multiples thereof and be of
like aggregate principal amount and tenor as the portion of this permanent
Global Note to be exchanged, and provided further that, unless the Company
agrees otherwise, Notes of this series in certificated registered form will be
issued in exchange for this permanent Global Note, or any portion hereof, only
if such Notes in certificated registered form were requested by written notice
to the Trustee or the Security Registrar by or on behalf of a person who is
beneficial owner of an interest hereof given through the Holder hereof.
Except as provided above, owners of beneficial interests in this permanent
Global Note will not be entitled to receive physical delivery of Notes in
certificated registered form and will not be considered the Holders thereof for
any purpose under the Indenture.
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.
SECTION 14. Owners. Prior to due presentment of this Note 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 Note be
registered as the owner hereof for all purposes, whether or not this Note be
overdue, and none of the Company, the Trustee or any such agent shall be
effected by notice to the contrary.
SECTION 15. Governing Law. The Indenture and the Notes shall be governed
by and construed in accordance with the laws of the State of New York.
SECTION 16. Defined Terms. All terms used in this Note which are defined
in the Indenture shall have the meanings assigned to them in the Indenture; and
all references in the Indenture to "Debt Security" or "Debt Securities" shall be
deemed to include the Notes.
OPTION TO ELECT PREPAYMENT
[To be completed only if this Note is prepayable at the option
of the Holder and the Holder elects to exercise such rights]
The undersigned owner of this Note hereby irrevocably elects to have the
Company prepay the principal amount of this Note or portion hereof below
designated at (i) the applicable Optional Prepayment Price indicated on the face
hereof, together with interest accrued and unpaid thereon to the date of
prepayment, if this Note is to be prepaid pursuant to Section 4 of this Note, or
(ii) 100% of the principal amount of this Note to be prepaid plus interest
accrued and unpaid thereon to the Optional Interest Reset Date, if this Note is
to be prepaid pursuant to Section 5 hereof, or to the Original Stated Maturity
Date, if this Note is to be prepaid pursuant to Section 6 hereof. Specify the
denomination or denominations (which shall be $1,000 or integral multiples
thereof or, if the Note is denominated in a currency other than U.S. dollars, an
Authorized Denomination) of the Note or Notes to be issued to the Holder for the
portion of the within Note not being prepaid (in the absence of any
specification, one such Note will be issued for the portion not being prepaid):
Dated: ________________________ __________________________________
Signature
Sign exactly as name appears on the
front of this Note.
Principal amount to be prepaid if Indicate address where check is
amount to be prepaid is less than to be sent, if prepaid:
the entire principal amount of this
Note (principal amount remaining ______________________________
must be an authorized denomination) ______________________________
$___________________
(which shall be an integral multiple
of $1,000 or, if the Note is
denominated in a currency other than
U.S. dollars, of an amount equal to
the integral multiples referred to
on the face hereof under "Authorized SOCIAL SECURITY OR OTHER TAXPAYER
Denominations" (or, if no such ID NUMBER
reference is made, and amount equal
to the minimum Authorized Denomination). ______________________________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as through they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
Custodian
UNIF GIFT MIN ACT ________________________________________
(Cust) (Minor)
Under Uniform Gifts to Minors Act
_______________________________________
(State)
Additional abbreviations may also be used though not in the above list.
--------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF
ASSIGNEE
___________________________________________________________________________
PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF ASSIGNEE
___________________________________________________________________________ the
within Note and all rights thereunder, hereby irrevocably constituting and
appointing attorney to transfer said Note on the books of the Company, with full
power of substitution in the premises.
Dated: ______________ _____________________________________
Signature
Sign exactly as name appears on the front
of this Note [SIGNATURE MUST BE GUARANTEED
by a commercial bank, a trust company or
by a member of the New York Stock
Exchange]
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR,
WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.