Exhibit 4(m)
WELLS FARGO & COMPANY
FLOATING RATE NOTE
REGISTERED REGISTERED
THIS SECURITY IS NOT A DEPOSIT AND IS NOT INSURED BY THE FDIC OR
ANY OTHER FEDERAL AGENCY.
UNLESS THIS CERTIFICATE IS DESIGNATED BELOW AS "BOOK-ENTRY," THEN
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW
YORK) ("THE DEPOSITARY," WHICH TERM INCLUDES ANY SUCCESSOR
DEPOSITARY FOR THE NOTES) TO THE BANK OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE
ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR
IN LIEU OF, THIS NOTE IS REGISTERED IN THE NAME OF CEDE & CO. OR
OTHER SUCH NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITARY AND ANY PAYMENT MADE HEREON 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.
UNLESS THIS CERTIFICATE IS DESIGNATED BELOW AS "BOOK-ENTRY," THIS
NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
NOTE NUMBER: __________ CUSIP NO.: __________ PRINCIPAL AMOUNT: U.S.$__________
TRADE DATE: __________ ORIGINAL ISSUANCE DATE: __________ STATED MATURITY: __________
ISSUE PRICE: __________ INITIAL INTEREST RATE: __________% REGULAR RECORD DATES: __________
SELLING AGENT'S DISCOUNT
OR COMMISSION: __________% INTEREST PAYMENT DATES: __________ REGISTERED HOLDER: __________
NET PROCEEDS TO ISSUER: $__________
INTEREST RATE BASIS: INDEX MONTHLY: INTEREST PAYMENT PERIOD:
/ / Commercial Paper Rate / / Daily / / 5 Year / / Monthly
/ / LIBOR Telerate (Unless LIBOR / / 1 Month / / 7 Year / / Quarterly
Reuters is designated below) / / 3 Months / / 10 Year / / Semi-annually
/ / LIBOR Reuters / / 6 Months / / 20 Year / / Annually
/ / Treasury Rate / / 2 Year / / Other
/ / CD Rate / / 3 Year
/ / CMT Rate (Telerate Page 7052-Week SPREAD: +/- ________________ Basis Points
Unless otherwise designated below) and/or SPREAD MULTIPLIER:_______________%
/ / Telerate Page 7052-Month
/ / Telerate Page 7055 MAXIMUM INTEREST RATE: __________%
MAXIMUM INTEREST RATE: __________%
/ / Federal Funds Effective Rate
/ / 11th Dist. Cost of Funds Rate FIRST INTEREST RESET DATE:________
/ / Other (see attached)
INTEREST RESET FREQUENCY:
/ / Daily / / Weekly / / Monthly / / Quarterly
/ / Semi-annually during the / / Annually during the
months of ________ and ________ month of __________
REDEMPTION: REPAYMENT:
/ / The Note cannot be redeemed prior to maturity The Note cannot be repaid prior to maturity
/ / The Note may be redeemed prior to maturity The Note may be repaid prior to maturity
Earliest Redemption Date:___________________ at the option of the holder of the Note
Initial Redemption Price____________________%
Annual Redemption Price Reduction:__________% Repayment Date(s):_____________
Sinking Fund Redemption Dates:______________% Repayment Price:_______________%
Sinking Fund Amount:________________________
DISCOUNT NOTE: / / Yes / / No RANKING: FORM:
Total Mount of OID: __________
Yield to Maturity: __________ / / Senior / / Book Entry
/ / Subordinated / / Certificated
Initial Accrual Period: __________
OTHER PROVISIONS: __________
WELLS FARGO & COMPANY, a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"
which term includes any successor corporation under the Indenture
(as defined below)), for value received, hereby promises to pay
to the registered holder named above or registered assigns, the
principal amount specified above (the "Principal Amount") on the
Stated Maturity specified above (the "Stated Maturity") (unless
earlier redeemed or repaid) and to pay to the registered holder
hereof as hereinafter provided interest on said Principal Amount
at the per annum initial interest rate specified above (the
"Initial Interest Rate") until the first Interest Reset Date (as
defined below) specified above following the date of original
issuance of this Security (the "Original Issuance Date")
specified above and thereafter at a rate determined in accordance
with the provisions on the reverse hereof under the heading
"Determination of Commercial Paper Rate," "Determination of Prime
Rate," "Determination of LIBOR," "Determination of Treasury
Rate," "Determination of Certificate of Deposit Rate,"
"Determination of CMT Rate," "Determination of Federal Funds
Effective Rate," or "Determination of Eleventh District Cost of
Funds Rate" below, depending upon whether the Interest Rate Basis
(the "Interest Rate Basis") specified above is Commercial Paper
Rate, Prime Rate, LIBOR, Treasury Rate, Certificate of Deposit
Rate ("CD Rate"), CMT Rate, Federal Funds Effective Rate, or
Eleventh District Cost of Funds Rate, which rate may be adjusted
by adding or subtracting the Spread and/or by multiplying the
Spread Multiplier (as such terms are defined below) depending on
whether a Spread or Spread Multiplier is designated above, until
the principal hereof is paid or duly made available for payment.
The "Spread," if any, is the number of basis points designated
above, and the "Spread Multiplier," if any, is the percentage
designated above. Interest will accrue from the Original Issuance
Date or from the most recent Interest Payment Date (as defined on
the reverse hereof) to which interest has been paid or duly
provided for. The Company will pay interest monthly, quarterly,
semiannually or annually, as specified above under "Interest
Payment Period," commencing with the first Interest Payment Date
specified above next succeeding the Original Issuance Date,
thereafter on the Interest Payment Dates (as defined below)
specified above and on the Stated Maturity and on any earlier
Redemption Dates or Repayment Dates (but only as to the principal
due on such earlier dates); provided, however, that if the
Original Issuance Date falls between a Regular Record Date and an
Interest Payment Date, the first payment of interest will be made
on the Interest Payment Date following the next succeeding
Regular Record Date. The "Regular Record Date" shall be 15
calendar days prior to each Interest Payment Date, whether or not
such date shall be a Business Day. The rate of interest payable
on this Security shall be reset daily, weekly, monthly,
quarterly, semiannually or annually, as specified above under
"Interest Reset Frequency". The interest so payable on this
Security, and punctually paid or duly provided for, on any
Interest Payment Date shall, as provided in such Indenture, be
paid to the person in whose name this Security (or one or more
predecessor Securities in exchange for or upon transfer of which
this Security was issued between the Regular Record Date for
payment of such interest and the Interest Payment Date), is
registered at the close of business on the Regular Record Date
for payment of such interest; provided, however, that interest
payable on this Security at the Stated Maturity or upon earlier
redemption or repayment, if applicable, shall be paid to the
person to whom the principal is paid. Interest shall be
calculated on the basis of actual days elapsed and a year of
360 days, except that interest for Treasury Rate Securities and
CMT Rate Securities will be calculated on the basis of the actual
number of days in the year. Notwithstanding the foregoing, the
interest rate hereon shall not be greater than the Maximum
Interest Rate, if any, or less than the Minimum Interest Rate, if
any, shown above, and in no event be greater than the maximum
interest rate permitted by applicable law. Any such interest not
so punctually paid or duly provided for shall forthwith cease to
be payable to the registered holder hereof on such Regular Record
Date and shall be paid to the person in whose name this Security
(or one or more predecessor Securities, in exchange for or upon
transfer of which this Security was issued between the record
date for the payment of such defaulted interest and the date
fixed for the payment of such defaulted interest) is registered
at the close of business on the record date for the payment of
such defaulted interest. The record date for the payment of
defaulted interest shall be the fifth day next preceding the date
fixed by the Company for the payment of the defaulted interest,
established by notice given by first-class mail to the holder of
this Security not less than 10 days preceding such record date,
or if such fifth day is not a Business Day (as defined below),
the Business Day next preceding such fifth day. The term
"Business Day" shall mean (a) with respect to any Security, any
day which is not a Saturday or Sunday and which, in the City of
San Francisco or in the City of New York, is neither a legal
holiday nor a day on which banking institutions are authorized by
law or regulation to close, and (b) with respect to LIBOR
Securities only, any such day on which dealings in deposits in
U.S. dollars are transacted in the London interbank market (a
"London Business Day").
2.
This Security may be presented for the payment of
principal and premium, if any, and interest payable at the Stated
Maturity or at any earlier Redemption Date or Repayment Date at
the offices or agencies of the Company maintained for such
purposes in San Francisco and New York City, in immediately
available funds and in such coin or currency of the United States
as at the time of payment is legal tender for payment of public
and private debts; provided, however, that at the option of the
Company payment of interest on this Security may be made by
United States dollar check mailed on the applicable Interest
Payment Date to the address of the person entitled thereto as
such address shall appear in the Register. The Company may also
appoint additional paying agents. For interest payments on a
Security of U.S. $5,000,000 or more in principal amount, the
holder of such Security may elect at any time to have payment
made in immediately available funds; where the principal of the
Security is less than U.S. $5,000,000, payment will be made in
immediately available funds only if agreed to on a case-by-case
basis by the Company. Interest payments on Securities shall not
be made in immediately available funds unless written
instructions have been presented to the Trustee (or any other
paying agent duly appointed) at least 15 days prior to the
relevant Regular Record Date.
Notwithstanding the provisions of the immediately
preceding paragraph, if this Security is designated on the face
hereof as "Book-Entry," then so long as this Security is
registered in the name of The Depository Trust Company (the
"Depositary," which term includes any successor depositary) or a
nominee of the Depositary, (A) payment of the principal of,
premium, if any, and interest on this Security due at Stated
Maturity or any earlier Redemption Date or Repayment Date will be
made by wire transfer of immediately available funds upon
presentation and surrender of this Security to the Trustee or to
the designated office of any additional paying agent; provided
that this Security is presented to the Trustee or other such
paying agent in time for it to make such payment in accordance
with its normal procedures; and (B) payments of interest on this
Security (other than at Stated Maturity or at any earlier
Redemption Date or Repayment Date), will be made by wire transfer
to such account as has been appropriately designated to the
Trustee or other paying agent by the person entitled to such
payments (and, if such person is the Depositary or a nominee of
the Depositary, such payments of interest will be made in
accordance with the Depositary's customary practices).
This Security is one of a duly authorized issuance of
Securities (as defined on the reverse hereof) of the Company
which have been issued under and are governed by the terms of
(i) if this Security is designated above as "Senior," an indenture
dated as of September 1, 1984, as amended by the First
Supplemental Indenture dated as of April 15, 1986, the Second
Supplemental Indenture dated as of June 30, 1987, and the Third
Supplemental Indenture dated as of January 23, 1991 between the
Company and Chemical Bank, as successor Trustee (the "Medium-Term
Notes") or (ii) if this Security is designated above as
"Subordinated," an indenture dated as of December 10, 1992
between the Company and Marine Midland Bank, as Trustee (the
"Medium-Term Notes, Series B") (the relevant indenture is herein
called the "Indenture" and the relevant trustee is hereinafter
called "Trustee," which term includes any successor trustee under
the Indenture).
If this Security is designated above as "Subordinated,"
then the indebtedness of the Company evidenced by this Security,
including the principal thereof and interest thereon, is, to the
extent and in the manner set forth in the Indenture, subordinate
and junior in right of payment to the Company's obligations to
the holders of Senior Indebtedness of the Company and each holder
of a Security of this series, by acceptance thereof, agrees to
and shall be bound by such provisions of the Indenture and all
other provisions of the Indenture.
If this Security is designated above as "Subordinated,"
then (i) payment of principal may be accelerated only in the case
of certain events of bankruptcy, insolvency or reorganization of
the Company or of Wells Fargo Bank, National Association and
ii) there is no right of acceleration in the case of a default
in the performance of any covenant, including a default in the
payment of interest or principal.
The provisions of this Security are continued on the
reverse hereof and the provisions thereof set forth shall for all
purposes have the same effect as though fully set forth at this
place. References herein to "this Security," "hereof," "herein"
and comparable terms shall include an Addendum hereto if an
Addendum is specified under "Other Provisions" above.
3.
Any provision contained herein with respect to the
calculation of the rate of interest applicable to this Security,
its payment dates or any other matter relating hereto may be
modified as specified in an Addendum relating hereto if so
specified above.
Unless the certificate of authentication hereon has been
executed by or on behalf of the Trustee under the Indenture, or
its successor thereunder, by the manual signature of one of its,
or its Authenticating Agent's, authorized signatories, this
Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, WELLS FARGO & COMPANY has caused this
instrument to be signed manually or in facsimile, by its Chairman
of the Board or its President or a Vice President and by its
Secretary or an Assistant Secretary and a facsimile of its corporate
seal to be imprinted thereof
DATED: WELLS FARGO & COMPANY
[Corporate Seal] By___________________
Chairman
By___________________
Attest: Secretary
_____________________
Secretary
CERTIFICATE OF AUTHENTICATION
This is one of the Securities, of the series designated
herein, referred to in the within-mentioned Indenture.
[if this Security is designated above as "Senior":]
CHEMICAL BANK, or CHEMICAL TRUST COMPANY
as Trustee OF CALIFORNIA,
as Authenticating Agent
for the Trustee
By__________________ By__________________
Authorized Officer Authorized Officer
[if this Security is designated above as "Subordinated":]
MARINE MIDLAND BANK, or CHEMICAL BANK, or
as Trustee as Authenticating Agent
for the Trustee
By__________________ By__________________
Authorized Officer Authorized Officer
CHEMICAL TRUST
COMPANY OF CALIFORNIA,
as Authenticating Agent
for the Trustee
By:__________________
Authorized Officer
4.
Reverse of Note
WELLS FARGO & COMPANY
MEDIUM-TERM NOTE
If this Security is designated above as "Senior," it is
one of a duly authorized issuance of securities of the Company
designated as its Medium-Term Notes. If this Security is
designated above as "Subordinated," it is one of a duly
authorized issuance of securities of the Company designated as
its Subordinated Medium-Term Notes, Series B (the Medium-Term
Notes or the Subordinated Medium-Term Notes, Series B, as the
case may be, are hereinafter referred to as the "Securities").
This Security shall be issuable only in fully registered form in
denominations of $1,000 and integral multiples of $1,000 in
excess thereof.
If so indicated on the face hereof, this Security may be
redeemed at the option of the Company prior to its Stated
Maturity. This Security may not be redeemed before the earliest
redemption date, if any, stated on the face hereof (the "Earliest
Redemption Date"). If no Earliest Redemption Date is indicated on
the face hereof, this Security is not redeemable at the option of
the Company prior to the Stated Maturity hereof. On or after the
Earliest Redemption Date as specified on the face hereof, if any,
this Security may be redeemed at the option of the Company as a
whole or from time to time in part in increments of $1,000
(provided that any remaining principal amount of this Security
shall be at least $1,000) at the applicable Redemption Price. The
"Redemption Price" shall initially be the Initial Redemption
Price set forth on the face hereof and shall decline, at each
anniversary of the Earliest Redemption Date, to an amount equal
to the prior Redemption Price less the Annual Redemption Price
Reduction indicated on the face hereof, or if no Initial
Redemption Price is indicated on the face hereof, at 100% of the
Principal Amount to be redeemed, in each case together with
accrued interest to the Redemption Date. This Company shall
redeem the principal amount of this Security set forth on the
face hereof ("Sinking Fund Amount") on each of the sinking fund
redemption dates, if any, set forth on the face hereof ("Sinking
Fund Redemption Dates") together with accrued interest applicable
to the Sinking Fund Redemption Date. If no Sinking Fund Amount is
set forth on the face hereof, the Company shall not have any
obligation to redeem this Security before its Stated Maturity.
The Company may reduce the Sinking Fund Amount to be redeemed on
any Sinking Fund Redemption Date by subtracting 100% of the
principal amount (excluding premium) of any Security owned by the
Company and surrendered to the Trustee for cancellation of which
the Company becomes the beneficial owner and has so notified the
Trustee on or before the applicable Sinking Fund Redemption Date
or that the Company has redeemed or repaid other than pursuant to
the second preceding sentence, in each case on or before the
applicable Sinking Fund Redemption Date. The Company may so
credit the same principal amount of the Security only once.
Notice of any redemption pursuant to this paragraph will be given
by first class mail, postage prepaid, mailed not less than 30 nor
more than 60 days prior to the date fixed for redemption as
provided in the Indenture. In the event of redemption of this
Security in part only, a new Security or Securities of this
series, of like tenor and terms and in authorized denominations,
for the unredeemed portion hereof will be issued in the name of
the registered holder hereof upon the cancellation hereof. In
case of redemption at the option of the Company of less than all
of the Securities of this series at the time outstanding the
Company may, by written notice to the Trustee, direct that
Securities of such series to be redeemed shall be selected from
among groups of such Securities having specified tenor or terms,
and the Trustee shall thereafter select the particular Securities
to be redeemed in such manner as the Trustee deems fair, as
provided in the Indenture. As used herein, the term "Redemption
Date" means any Sinking Fund Redemption Date and any date fixed
for redemption of all or any of the Securities at the option of
the Company.
This Security is subject to repayment in whole or in
part in any whole multiple of $1,000 (provided that any remaining
principal amount of this Security shall be at least $1,000) on
the Repayment Dates set forth on the face hereof at the option of
the holder hereof, at a price (the "Repayment Price") set forth
on the face hereof or if no Repayment Price is so set forth, at
100% of the principal amount, in each case together with interest
payable to the date of repayment. To be repaid at the option of
the holder this Security must be received, with the form at the
foot of this Security titled "Option to Elect Repayment" duly
completed, by the Company at any office or agency of the Company
maintained for the payment of principal and interest, transfer
and exchange
5.
in the City and County of San Francisco, State of California, or
in the Borough of Manhattan, the City of New York, State of New
York (or at such additional addresses of which the Company shall
notify the holders of the Securities of this series), not less
than 15 nor more than 45 days prior to the date of repayment.
Effective exercise of the repayment option by the holder of this
Security shall be irrevocable. In any case where any Repayment
Date set forth on the face hereof is not a Business Day
(notwithstanding any other provision of the Indenture or the
Securities of this series) then payment of the Repayment Price
and interest need not be made on such date, but may be made on
the next succeeding Business Day with the same force and effect
as if made on such date, and, if such payment is so made, no
interest shall accrue for the period from and after such
Repayment Date. If no Repayment Date is indicated hereon, this
Security is not subject to repayment at the option of the holder.
Upon surrender of this Security for repayment
in accordance with the provisions set forth above, this Security
(or portion thereof surrendered for repayment) shall, on the
Repayment Date, become due and payable at the Repayment Price,
together with accrued interest to the Repayment Date, and the
Company shall pay such amounts on the Repayment Date.
In the event of repayment of this Security in
part only, a new Security or Securities of this series, of like
tenor and terms and in authorized denominations, for the unrepaid
portion hereof will be issued in the name of the registered
holder hereof upon the cancellation hereof.
Commencing with the First Interest Reset Date specified
on the face hereof, the rate at which interest on this Security
is payable shall be adjusted daily, weekly, monthly, quarterly,
semi-annually or annually as shown on the face hereof under
"Interest Reset Frequency." Each such adjusted rate shall be
applicable on and after the Interest Reset Date to which it
relates but not including the next succeeding Interest Reset
Date. Subject to applicable provisions of law and except as
specified herein, on each Interest Reset Date, the rate of
interest on this Security shall be the rate determined in
accordance with the provisions of the applicable heading below.
The Interest Reset Dates will be, in the case of
Securities which reset daily, each Business Day, in the case of
Securities (other than Treasury Rate Securities) which reset
weekly, the Wednesday of each week; in the case of Treasury Rate
Securities which reset weekly, the Tuesday of each week (except
as set forth in the last sentence of the next succeeding
paragraph below); in the case of Securities which reset monthly
(other than the Eleventh District Cost of Funds Rate Securities),
the third Wednesday of each month; or, in the case of Eleventh
District Cost of Funds Rate Securities, all of which reset
monthly; the first calendar day of each month in the case of
Securities which reset quarterly, the third Wednesday of March,
June, September and December; in the case of Securities which
reset semi-annually, the third Wednesday of two months of each
year that are six months apart, as specified on the face hereof
under "Interest Rate Frequency"; and in the case of Securities
which reset annually, the third Wednesday of one month of each
year, as specified on the face hereof; provided, however, that
the interest rate in effect from the date of issuance to the
first Interest Reset Date with respect to a Security will be the
Initial Interest Rate indicated on the face thereof. If any
Interest Reset Date for any Security would otherwise be a day
that is not a Business Day for such Security, the Interest Reset
Date for such Security shall be postponed to the next day that is
a Business Day for such Security, except that in the case of a
LIBOR Security, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
The Interest Determination Date pertaining to an
Interest Reset Date for (a) a Commercial Paper Rate Security (the
"Commercial Paper Interest Determination Date"), (b) a Prime Rate
Security (the "Prime Rate Interest Determination Date"), (c) a CD
Rate Security (the "CD Rate Interest Determination Date"), (d) a
CMT Rate Security (the "CMT Rate Interest Determination Date"),
and (e) a Federal Funds Rate Security (the "Federal Funds
Interest Determination Date") will be the second Business Day
preceding the Interest Reset Date with respect to such Security.
The Interest Determination Date pertaining to an Interest Reset
Date for an Eleventh District Cost of Funds Rate Security (the
"Eleventh District Cost of Funds Rate Interest Determination
Date") will be the last working 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 under "Determination of Eleventh District
Cost of Funds Rate"). The Interest Determination Date pertaining
6.
to an Interest Reset Date for a LIBOR Security (the "LIBOR
Interest Determination Date") will be the second London Business
Day preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for a
Treasury Rate Security (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.
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 Interest Reset Date
occurring in the next succeeding week. If an auction date shall
fall on any Interest Reset Date for a Treasury Rate Security,
then such Interest Reset Date shall instead be the first Business
Day immediately following such auction date.
Unless otherwise indicated above, interest will be
payable, in the case of Securities which reset daily, weekly, or
monthly (except for Eleventh District Cost of Funds Rate
Securities), 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; in the case of Eleventh District
Cost of Funds Rate Securities, which reset monthly, on the first
Business Day of each month or the first Business Day of March,
June, September and December as specified above; in the case of
Securities which reset quarterly, on the third Wednesday of
March, June, September and December of each year; in the case of
Securities which reset semi-annually, on the third Wednesday of
the two months of each year specified on the face hereof; and in
the case of Securities which reset annually, on the third
Wednesday of the month specified on the face hereof (each an
"Interest Payment Date"), and in each case, at any Redemption
Date or Repayment Date and Stated Maturity. If an Interest
Payment Date with respect to any Security (other than an Interest
Payment Date that falls on a Redemption Date or a Repayment Date
with respect to the principal amount due and payable on such
date, and other than an Interest Payment Date which falls on the
Stated Maturity) would otherwise fall on a day that is not a
Business Day with respect to such Security, the Interest Payment
Date will be postponed to the following day that is a Business
Day with respect to such Security, except that in the case of a
LIBOR Security, if such Business Day falls in the next calendar
month, such Interest Payment Date will be the preceding day that
is a Business Day with respect to such LIBOR Security.
Interest payments shall be for the amount of interest
accrued to, but excluding, the Interest Payment Date. With
respect to this Security, accrued interest from the Original
Issuance Date or from the last date to which interest has been
paid is calculated by multiplying the Principal Amount of this
Security by an accrued interest factor. Such accrued interest
factor is computed by adding the interest factor calculated for
each day from the Original Issuance Date, or from the last date
to which interest has been paid, to the date for which accrued
interest is being calculated. The interest factor (expressed as a
decimal rounded upwards if five one- millionths or more of a
percentage point and rounded downwards if less than five
one-millionths of a percentage point, if necessary, to the next
higher or lower, as the case may be, one hundred-thousandth of a
percentage point (e.g., 9.876545% or .09876545 being rounded to
9.87655% or .0987655, respectively)) for each such day is
computed by dividing the interest rate (expressed as a decimal
rounded upwards if five one-millionths or more of a percentage
point and downwards if less than five one-millionths of a
percentage point, if necessary, to the next higher or lower, as
the case may be, one hundred-thousandth of a percentage point)
applicable to such date by 360, in the case of Commercial Paper
Rate Securities, Prime Rate Securities, LIBOR Securities, CD Rate
Securities, Federal Funds Rate Securities or Eleventh District
Cost of Funds Rate Securities, or by the actual number of days in
the year, in the case of CMT Rate Securities and Treasury Rate
Securities. All dollar amounts used in or resulting from such
calculation will be rounded to the nearest cent (with one-half
cent being rounded upwards).
Notwithstanding the foregoing, if this Security is
designated above as having an Addendum attached, this Security
shall bear interest in accordance with the terms described in
such Addendum.
Upon the request of the holder of any Security, the
calculation agent as specified on the face hereof (the
"Calculation Agent") will provide the interest rate then in
effect, and, if different, the interest rate which will become
effective as a result of a determination made on the most recent
Interest Determination Date with respect to such Security. Unless
otherwise specified on the face hereof, the "Interest Calculation
Date," where applicable, pertaining to any Interest Determination
Date will be the earlier of (a) the tenth calendar day after such
Interest Determination Date, or, if any such day is not a
Business Day, the next succeeding Business Day,
7.
or (b) the Business Day preceding the applicable Interest Payment
Date, Redemption Date, Repayment Date or Stated Maturity, as the
case may be.
DETERMINATION OF COMMERCIAL PAPER RATE. The interest
rate payable with respect to this Security shall be calculated
with reference to the Commercial Paper Rate and the Spread and/or
Spread Multiplier, if any, specified on the face hereof.
"Commercial Paper Rate" means, with respect to each Interest
Determination Date specified on the face hereof, the Money Market
Yield (calculated as described below) of the rate on such date
for commercial paper having the Index Maturity specified 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 of the Federal Reserve System ("H.15(519)") under the
heading "Commercial Paper." In the event that such rate is not
published prior to 3:00 P.M., New York City time, on the Interest
Calculation Date indicated hereon pertaining to such Interest
Determination Date, as specified above, then the Commercial Paper
Rate shall be the Money Market Yield of the rate on such Interest
Determination Date for commercial paper having the Index Maturity
specified 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" ("Composite
Quotations") under the heading "Commercial Paper." If by
3:00 P.M., New York City time, on such Interest Calculation Date
such rate is not yet published in either H.15(519) or Composite
Quotations, the rate for that Interest Determination Date shall
be calculated by the Calculation Agent and shall be the Money
Market Yield of the arithmetic mean (rounded to the nearest one
hundred-thousand of a percent) of the offered rates, as of
11:00 A.M., New York City time, on that Interest Determination Date,
of three leading dealers of commercial paper in The City of New York
selected by the Calculation Agent for commercial paper of the
Index Maturity specified on the face hereof placed for an
industrial issuer whose bond rating is "AA," or the equivalent,
from a nationally recognized 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 will be the Commercial Paper Rate then in
effect on such Commercial Paper Interest Determination Date.
"Money Market Yield" means a yield (expressed as a
percentage rounded to the next higher one hundred-thousandth of a
percentage point) calculated in accordance with the following
formula:
Money Market Yield = D x 360
------------- x 100
360 - (D x M)
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 interest period
for which interest is being calculated.
DETERMINATION OF PRIME RATE. The interest rate payable
with respect to this Security shall be calculated with reference
to the Prime Rate and the Spread and/or Spread Multiplier, if
any, specified on the face hereof. "Prime Rate" means, with
respect to each Interest Determination Date specified on the face
hereof, 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 AM, New York City time, on the Interest
Calculation Date pertaining to such Interest Determination Date,
then the Prime Rate will be determined by the Calculation Agent
and will be the arithmetic mean of the rates of interest publicly
announced by each bank that appear on the Reuters Screen NYMF
Page (as defined below) as such bank's prime rate or base lending
rate as in effect for that Prime Rate Interest Determination
Date. If fewer than four such rates but more than one such rate
appear on the Reuters Screen NYMF Page for the Prime Rate
Interest Determination Date, the Prime Rate will be determined by
the Calculation Agent and will 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 Rate Interest Determination Date by three, or two if
only two such rates are quoted, major money center banks in the
City of New York selected by the Calculation Agent (which, if
other than the Company, shall be selected by the Calculation
Agent after consultation with the Company). If fewer than two
such rates appear on the Reuters
8.
Screen NYMF Page, the Prime Rate will be determined by the
Calculation Agent on the basis of the rates furnished in The City
of New York by three, or two if only two such rates are quoted,
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. $500,000,000 and being
subject to supervision or examination by federal or state
authority, selected by the Calculation Agent (which, if other
than the Company, shall be selected by the Calculation Agent
after consultation with the Company) to provide such rate or
rates; provided, however, that if fewer than two such substitute
banks or trust companies selected as aforesaid are quoting as
mentioned in this sentence, the Prime Rate will remain the Prime
Rate then in effect on such Interest Determination Date. "Reuters
Screen NYMF Page" means the display designated as page "NYMF" on
the Reuters Monitor Money Rates Service (or such other page as
may replace the NYMF page on that service for the purpose of
displaying prime rates or base lending rates of major United
States banks).
DETERMINATION OF LIBOR. The interest rate payable with
respect to this Security shall be calculated with reference to
LIBOR and the Spread and/or Spread Multiplier, if any, specified
on the face hereof. "LIBOR" will be determined by the Calculation
Agent in accordance with the following provisions:
(i) With respect to each LIBOR Interest
Determination Date specified on the face hereof, either,
as specified on the face hereof: (a) the arithmetic mean
of the offered rates for deposits in U.S. dollars 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, which appear on the Reuters Screen LIBO Page as of
11:00 A.M., London time, on the LIBOR Interest
Determination Date, if at least two such offered rates
appear on the Reuters Screen LIBO Page ("LIBOR
Reuters"), or (b) the rate for deposits in U.S. dollars
having the Index Maturity designated on the face hereof,
commencing on the second London Business Day immediately
following that LIBOR Interest Determination Date, that
appears on the Telerate Page 3750 as of 11:00 A.M.,
London time, on that LIBOR Interest Determination Date
("LIBOR Telerate"). Unless otherwise indicated on the
face hereof, "Reuters Screen LIBO Page" means the
display designated as Page "LIBO" on the Reuters Monitor
Money Rate Service (or such other page as may replace
the LIBO page on that service for the purpose of
displaying London interbank offered rates of major
banks). "Telerate Page 3750" means the display
designated as page "3750" on the Telerate Service (or
such other page as may replace the 3750 page on that
service or such other service or services as may be
nominated by the British Bankers' Association for the
purpose of displaying London interbank offered rates for
U.S. dollar deposits). If neither LIBOR Reuters nor
LIBOR Telerate is specified on the face hereof, LIBOR
will be determined as if LIBOR Telerate had been
specified. If fewer than two offered rates appear on the
Reuters Screen LIBO Page, or if no rate appears on the
Telerate Page 3750, as applicable, LIBOR in respect of
that LIBOR Interest Determination Date will be
determined as if the parties had specified the rate
described in (ii) below.
(ii) With respect to a LIBOR Interest
Determination Date on which fewer than two offered rates
appear on the Reuters Screen LIBO Page, as described in
(i)(a) above, or on which no rate appears on the
Telerate Page 3750, as specified in (i)(b) above, as
applicable, LIBOR will be determined on the basis of the
rates at which deposits in U.S. dollars having the Index
Maturity designated on the face hereof offered at
approximately 11:00 A.M., London time, on such LIBOR
Interest Determination Date by four major banks
("Reference Banks") in the London interbank market
selected by the Calculation Agent (which, if other than
the Company, shall be selected by the Calculation Agent
after consultation with the Company) to prime banks in
the London interbank market commencing on the second
London Business Day immediately following such LIBOR
Interest Determination Date and in a principal amount of
not less than U.S. $1,000,000 that is representative for
a single transaction in such market at such time. The
Calculation Agent will request the principal London
office of each of the Reference Banks to provide a
quotation of its rate. If at least two such quotations
are provided, LIBOR for such LIBOR Interest
Determination Date will be the arithmetic mean (rounded
to the nearest one hundred-thousandth of a percentage
point) of such quotations. If fewer than two quotations
are provided, LIBOR for such LIBOR Interest
Determination Date will be the arithmetic mean (rounded
to the nearest one hundred-thousandth of a percentage
point) of the rates
9.
quoted at approximately 11:00 A.M., New York City time,
on such LIBOR Interest Determination Date by three major
banks in The City of New York selected by the
Calculation Agent (which, if other than the Company,
shall be selected by the Calculation Agent after
consultation with the Company) for loans in U.S. dollars
to leading European banks having the specified Index
Maturity designated on the face hereof commencing on the
second London Business Day immediately following such
LIBOR Interest Determination Date and in a principal
amount equal to an amount of not less than U.S.
$1,000,000 that is representative for a single
transaction in such market at such time; provided,
however, that if the banks selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this
sentence, LIBOR will be LIBOR then in effect on such
LIBOR Interest Determination Date.
DETERMINATION OF TREASURY RATE. The interest rate
payable with respect to this Security shall be calculated with
reference to the Treasury Rate and the Spread and/or Spread
Multiplier, if any, specified on the face hereof. "Treasury Rate"
means, with respect to each Interest Determination Date specified
on the face hereof, 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 "U.S. Government Securities-Treasury
Bills/Auction Average (Investment)" or, if not so published by
3:00 P.M., New York City time, on the Interest Calculation Date
pertaining to such Interest Determination Date, as specified
above, the auction average rate (expressed as a bond equivalent,
rounded to the nearest one hundred-thousandth of a percentage
point, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) for such auction as otherwise
announced by the United States Department of the Treasury. In the
event that the results of the auction of Treasury bills having
the Index Maturity specified on the face hereof are not published
or reported as provided above by 3:00 P.M., New York City time,
on such Interest Calculation Date, or if no such auction is held
in that particular week, then the Treasury Rate shall be
calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, rounded to the nearest
one hundred-thousandth of a percentage point, 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
Interest Determination Date, of three leading primary United
States government securities dealers selected by the Calculation
Agent (which, if other than the Company, shall be selected by the
Calculation Agent after consultation with the Company), for the
issuance of Treasury bills with a remaining maturity closest to
the specified Index Maturity; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not
quoting as mentioned in this sentence, the Treasury Rate will be
the Treasury Rate then in effect on such Interest Determination
Date.
DETERMINATION OF CERTIFICATE OF DEPOSIT RATE. The
interest rate payable with respect to this Security shall be
calculated with reference to the CD Rate and the Spread and/or
Spread Multiplier, if any, specified on the face hereof. "CD
Rate" means, with respect to each Interest Determination Date,
the rate on such date for negotiable certificates of deposit
having the Index Maturity specified on the face hereof as
published in H.15(519) under the heading "CDs (Secondary
Market)." In the event that such rate is not so published by
3:00 P.M., New York City time, on the Interest Calculation Date
pertaining to such Interest Determination Date, as specified
above, the CD Rate will be the rate on such Interest
Determination Date for negotiable certificates of deposit having
the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Certificates of Deposit."
If such rate is neither published in H.15(519) nor in Composite
Quotations by 3:00 P.M., New York City time, on such Interest
Calculation Date, the CD Rate for such Interest Determination
Date will be calculated by the Calculation Agent and will be the
arithmetic mean (rounded to the nearest one hundred-thousandth of
a percentage point) of the secondary market offered rates as of
10:00 A.M., New York City time, on such Interest Determination
Date, of three leading nonbank dealers of negotiable U.S. dollar
certificates of deposit in the City of New York selected by the
Calculation Agent (which, if other than the Company, shall be
selected by the Calculation Agent after consultation with the
Company) for negotiable certificates of deposit of major United
States money center banks (in the market for negotiable
certificates of deposit) with a remaining maturity closest to the
Index Maturity indicated hereon in a denomination of U.S.
$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 will be the CD Rate in effect on
such Interest Determination Date.
10.
DETERMINATION OF CMT RATE. The interest rate payable
with respect to this Security shall be calculated with reference
to the CMT Rate and the Spread and/or Spread Multiplier, if any,
specified on the face hereof. "CMT Rate" means, with respect to
each Interest Determination Date specified on the face hereof,
the rate displayed on the Designated CMT Telerate Page 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 for (i) if the
Designated CMT Telerate Page is 7055, the rate on such CMT Rate
Interest Determination Date and (ii) if the Designated CMT
Telerate Page is 7052, the rate for the week, or the month, as
applicable, ended immediately preceding the week in which the
related CMT Rate 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 related Interest
Calculation Date, then the CMT Rate for such CMT Rate 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 related
Interest Calculation Date, then the CMT Rate for such CMT Rate
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 Rate 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 related Interest Calculation Date, then
the CMT Rate for the CMT Rate Interest Determination Date will be
calculated by the Calculation Agent and be a yield to maturity,
based on the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point) of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York
City time, on the CMT Rate 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 (which, if other than the Company, shall be
selected by the Calculation Agent after consultation with the
Company) 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 Note") 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
Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the
arithmetic mean (rounded to the nearest one hundred-thousandth of
a percentage point) of the secondary market offer side prices as
of approximately 3:30 P.M., New York City time, on the CMT Rate
Interest Determination Date of three Reference Dealers in the
City of New York (from five such Reference Dealers selected by
the Calculation Agent (which, if other than the Company, shall be
selected by the Calculation Agent after consultation with the
Company) 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 million. 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 (rounded
to the nearest one hundred-thousandth of a percentage point) of
the offer prices obtained and neither the highest nor lowest of
such quotes will be eliminated; provided, however, that if fewer
than three Reference Dealers selected by the Calculation Agent
are quoting as described herein, the CMT Rate will be the CMT
Rate in effect on such CMT Rate Interest Determination Date. If
two Treasury Notes with an original maturity as described in the
third 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 designated 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 reported in H.15(519)), for the purpose of
displaying Treasury
11.
Constant Maturities as reported 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 U.S. Treasury securities (either 1, 2,
3, 5, 7, 10, or 30 years) specified on the face hereof under
"Index Maturity" with respect to which the CMT Rate will be
calculated. If no such Index Maturity is specified on the face
hereof, the Designated CMT Maturity Index shall be 2 years.
DETERMINATION OF FEDERAL FUNDS EFFECTIVE RATE. The
interest rate payable with respect to this Security shall be
calculated with reference to the Federal Funds Effective Rate
and the Spread and/or Spread Multiplier, if any, specified on
the face hereof. "Federal Funds Effective Rate" means, with
espect to each Interest Determination Date, the rate on that
date for Federal Funds as published in H.15(519) under the
heading "Federal Funds (Effective)." In the event that such
rate is not so published by 3:00 P.M., New York City time,
on the Interest Calculation Date pertaining to such Interest
Determination Date, as specified above, the Federal Funds
Effective Rate will be the rate on such Interest Determination
Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate" If such rate is neither published
in H.15(519) nor in Composite Quotations by 3:00 P.M., New York
City time, on such Interest Calculation Date, the Federal Funds
Effective Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be the arithmetic
mean (rounded to the nearest one hundred-thousandth of a percentage
point) of the rates as of 9:00 A.M., New York City time, on such
Interest Determination Date of 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 (which, if other than the Company, shall be
selected by the Calculation Agent after consultation with the
Company); provided, however, that if the brokers selected as
aforesaid by the Calculation Agent are not quoting as mentioned
in this sentence, the Federal Funds Effective Rate will be the
Federal Funds Effective Rate in effect on such Interest
Determination Date.
DETERMINATION OF ELEVENTH DISTRICT COST OF FUNDS RATE.
The interest rate payable with respect to this Security shall be
calculated with reference to the Eleventh District Cost of Funds
Rate and the Spread and/or Spread Multiplier, if any, specified
above. "Eleventh District Cost of Funds Rate" means, with respect
to any Eleventh District Cost of Funds Rate Interest Determination
Date, the rate equal to the monthly weighted average cost of funds
r the calendar month immediately preceding the month in which such
Eleventh District Cost of Funds Rate Interest Determination Date
Page 7058 (as defined below) as of 11:00 A.M., San Francisco time,
on such Eleventh District Cost of Funds Rate Interest Determination
ate. If such rate does not appear on Telerate Page 7058 on any related
Eleventh District Cost of Funds Rate Interest Determination Date,
the Eleventh District Cost of Funds Rate for such Eleventh
District Cost of Funds Rate 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
immediately preceding the date of such announcement. If the FHLB
of San Francisco fails to announce such rate for the calendar
month immediately preceding such Eleventh District Cost of Funds
Rate Interest Determination Date, then the Eleventh District Cost
of Funds Rate determined as of such Eleventh District Cost of
Funds Rate Interest Determination Date shall be the Eleventh
District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
"Telerate Page 7058" means the display designated as
page "7058" on the Dow Jones Telerate Service (or such other page
as may replace the 7058 page on that service for the purpose of
displaying the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank
District).
The Calculation Agent shall calculate the interest rate
and the amount of interest payable on this Security in accordance
with the foregoing on or before each Interest Calculation Date.
The Calculation Agent will, upon the request of the
registered holder of this Security, provide the interest rate
then in effect, and, if different, the interest rate which will
become effective as a result of a determination made on the most
recent Interest Determination Date with respect to this Security.
12.
(A) If this Security is designated above as "Senior," in
case an Event of Default with respect to this series, as defined
in the Senior Indenture, or (B) if this Security is designated
above as "Subordinated," in case of certain events of bankruptcy,
insolvency or reorganization of the Company or Wells Fargo Bank,
National Association, shall have occurred and be continuing, then
in either such case the principal of all of the Securities of
this series, together with accrued interest, may be declared, and
upon such declaration shall become due and payable, in the manner
with the effect and subject to the conditions provided in the
Indenture. The Indenture provides that in certain events such
declaration and its consequences may be rescinded and annulled by
the holders of a majority in principal amount of the Securities
of the series (such series or all series voting as one class, if
more than one series are so entitled), as were entitled to
declare such Event of Default, then outstanding (determined for
any series of Securities as in the Indenture provided). It is
also provided in the Indenture that the holders of a majority in
principal amount of all of the Securities as to which a default
has occurred (all series voting as one class) at the time
outstanding (determined for any series of securities as in the
Indenture provided) may, on behalf of the holders of all of the
Securities of such series, waive any past default in respect of
such Securities under the Indenture and its consequences, except
a default in the payment of the principal of or interest on any
of such Securities or in respect of a covenant or provision of
the Indenture which cannot be modified or amended without the
consent of the holder of each Security so affected and except as
otherwise provided therein.
The Indenture contains provisions permitting the Company
and the Trustee, with the consent of the holders of not less than
66 2/3% in principal amount of the Securities of all senses at
the time outstanding (determined for any series of Securities and
evidenced as in the Indenture provided) so affected (voting as
one class), to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or
modifying in any manner the rights of the holders of the
Securities of each such series; provided, however, that no such
supplemental indenture shall (i) extend the fixed maturity of any
Securities, or reduce the rate or extend the time of payment of
interest thereon or on any overdue principal amount, or reduce
the principal amount thereof, or change the provisions pursuant
to which the rate of interest on any Security is determined if
such change could reduce the rate of interest thereon, or reduce
the minimum or maximum rate of interest thereon or reduce any
amount payable upon redemption or repayment thereof, or make the
principal thereof or interest thereon or any overdue principal
amount payable in any coin or currency other than that therein
prescribed, without the consent of the holder of each Security so
affected, or (ii) reduce the aforesaid percentage of Securities,
the consent of the holders of which is required for any such
supplemental indenture, without the consent of the holders of all
Securities then outstanding. The Indenture also contains a
provision permitting the holders of a majority in principal
amount of all of the Securities of all series affected (all
series voting as one class) at the time outstanding (determined
for any series of Securities and evidenced as in the Indenture
provided) to waive compliance with any covenant or condition
contained in the Indenture before the time for such compliance.
No recourse shall be had for the payment of the
principal of (and premium, if any) or the interest on this
Security, or for any liability based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator,
stockholder, officer, director or employee, as such, past,
present or future, of the Company, or of any successor
corporation, whether by virtue of any constitution, statute or
rule of law, or by the enforcement of any assessment or penalty
or otherwise, all such liability being, by the acceptance hereof
and as part of the consideration for the issuance hereof,
expressly waived and released.
The transfer of this Security is registrable by the
registered owner hereof in person or by his attorney duly
authorized in writing at the office of the Company or at the
office of any registrar of the Securities or any transfer agent
designated by the Company for such purpose. Subject to the terms
of the Indenture, upon payment of a sum sufficient to reimburse
the Company for any tax or other governmental charge incident to
transfer, and upon surrender of this Security upon any such
registration of transfer, a new Security or Securities of
authorized denomination or denominations, for the same aggregate
principal amount, will be issued to the transferee in exchange
hereof.
13.
Prior to due presentation of this Security for
registration of transfer, the Company, the Trustee, the
Authenticating Agent, if any, and any agent of the Company or the
Trustee may treat the person in whose name this Security is
registered upon the Register as the absolute owner of this
Security (whether or not this Security shall be overdue and
notwithstanding any notation of ownership or other writing
hereon) for the purpose of receiving payment of or on account of
the principal hereof (and premium, if any) and, subject to the
provisions on the face hereof, interest due hereon and for all
other purposes, and neither the Company, the Trustee, the
Authenticating Agent, if any, nor any agent of the Company or the
Trustee shall be affected by any notice or knowledge to the
contrary.
As set forth in, and subject to, the provisions of the
Indenture, no holder of any Security of this series will have any
right to institute any proceeding with respect to the Indenture
or for any remedy thereunder, unless such holder shall have
previously given to the Trustee written notice of a continuing
default with respect to this series, the holders of not less than
25% in principal amount of the outstanding Securities (considered
as one class) shall have made written request upon, and offered
reasonable indemnity to, the Trustee to institute such proceeding
as Trustee, the Trustee shall not have received from the holders
of a majority in aggregate principal amount of the outstanding
Securities a direction inconsistent with such request and the
Trustee shall have failed to institute such proceeding within
60 days; provided, however, that such limitations do not apply
to a suit instituted by the registered holder hereof for the
enforcement of payment of the principal of (premium, if any) or
interest on this Security on or after the respective due dates
expressed herein.
No reference herein to the Indenture and no provision of
this Security or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional,
to pay or provide for the payment of the principal of (and
premium, if any) and interest on this Security at the times,
places and rate, and in the coin or currency, herein prescribed.
If this Security is designated on the face hereof as
"Senior," then this Security will rank on a parity with all other
unsecured and unsubordinated indebtedness of the Company. If this
Security is designated on the face hereof as "Subordinated," then
the indebtedness of the Company evidenced by this Security is, to
the extent and in the manner set forth in the Indenture,
subordinated and junior in right of payment to its obligations to
holders of Senior Indebtedness of the Company.
Terms used herein and not otherwise defined herein,
which are defined in the Indenture shall have the respective
meanings assigned thereto in the Indenture. By acceptance of this
Security, the holder hereof agrees to be bound by the provisions
of the Indenture.
This Security shall be deemed to be a contract made
under the laws of the State of California and for all purposes
shall be construed in accordance with the laws of said State.
------------------------------------
14.
OPTION TO ELECT REPAYMENT
The undersigned hereby requests and irrevocably
instructs the Company to repay the within Security on the first
Repayment Date set forth on the face hereof occurring not less
than 15 nor more than 45 days after the date of receipt of the
within Security by the Company at an office or agency of the
Company maintained for the payment of principal and interest,
transfer and exchange in the City and County of San Francisco,
State of California or in the Borough of Manhattan, The City of
New York, State of New York (or at such other addresses of which
the Company shall notify the registered holders of the Securities
of this series).
( ) In whole
( ) In part equal to $______________ (must be a whole multiple
of $1,000; remaining principal amount must be at least
$1,000)
at a price equal to the Repayment Price set forth on the face
hereof, or if no Repayment Price is so set forth, at 100% of the
principal amount, in each case together with interest accrued to
the date of repayment.
Signature Please print or type name and addrress:
______________________________________
______________________________________
______________________ ______________________________________
NOTICE: The signature on this Option to Elect Repayment 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.
Please print or type name and address:
15.
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
Please insert Social Security
or other identifying number of
assignee:
______________________________
____________________________________________________________________
(Name and Address of Assignee, including zip code,
must be printed or typewritten)
____________________________________________________________________
the within Note, and all rights thereunder, hereby irrevocably
constituting and appointing
______________________ Attorney to transfer said Note on the Security
Register of the Company, with full power of substitution in the premises.
Dated:
________________________________________________
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within Note in
every particular, without alteration or enlargement or any change
whatever.
16.