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DUKE-WEEKS REALTY LIMITED PARTNERSHIP
ISSUER
TO
BANK ONE TRUST COMPANY, N.A.
TRUSTEE
TENTH SUPPLEMENTAL INDENTURE
DATED AS OF JUNE 8, 2001
$150,000,000
OF
MEDIUM-TERMS NOTES
DUE NINE MONTHS OR MORE
FROM DATE OF ISSUE
SUPPLEMENT TO INDENTURE,
DATED AS OF SEPTEMBER 19, 1995, BETWEEN
DUKE-WEEKS REALTY LIMITED PARTNERSHIP AND
BANK ONE TRUST COMPANY, N.A.
(SUCCESSOR IN INTEREST TO THE FIRST NATIONAL BANK OF CHICAGO)
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TENTH SUPPLEMENTAL INDENTURE, dated as of June 8, 2001, between DUKE-WEEKS
REALTY LIMITED PARTNERSHIP, an Indiana limited partnership (the "Issuer"),
having its principal offices at 600 East 96th Street, Suite 100, Indianapolis,
IN 46240 and BANK ONE TRUST COMPANY, N.A. (successor in interest to The First
National Bank of Chicago), a national banking association organized under the
laws of the United States of America, as trustee (the "Trustee"), having its
Corporate Trust Office at 1 Bank One Plaza, Suite IL1-0126, Chicago, Illinois
60670-0126.
RECITALS
WHEREAS, the Issuer executed and delivered its Indenture (the
"Original Indenture"), dated as of September 19, 1995, to the Trustee to issue
from time to time for its lawful purposes debt securities evidencing its
unsecured and unsubordinated indebtedness.
WHEREAS, the Original Indenture provides that by means of a
supplemental indenture, the Issuer may create one or more series of its debt
securities and establish the form and terms and conditions thereof.
WHEREAS, the Issuer intends by this Tenth Supplemental Indenture to
(i) create a series of debt securities, to be issued from time to time, in an
aggregate principal amount not to exceed $150,000,000, entitled "Duke-Weeks
Realty Limited Partnership Medium-Terms Notes Due Nine Months or More from Date
of Issue" (the "Notes"); and (ii) establish the form and the terms and
conditions of such Notes.
WHEREAS, the Board of Directors of Duke-Weeks Realty Corporation,
the general partner of the Issuer, acting through authority delegated to certain
of its executive officers, has approved the creation of the Notes and the form,
terms and conditions thereof.
WHEREAS, the consent of Holders to the execution and delivery of
this Tenth Supplemental Indenture is not required, and all other actions
required to be taken under the Original Indenture with respect to this Tenth
Supplemental Indenture have been taken.
NOW, THEREFORE IT IS AGREED:
ARTICLE ONE
DEFINITIONS, CREATION, FORM AND TERMS AND CONDITIONS OF THE DEBT SECURITIES
SECTION 1.01. DEFINITIONS. Capitalized terms used in this Tenth
Supplemental Indenture and not otherwise defined shall have the meanings
ascribed to them in the Original Indenture. In addition, the following terms
shall have the following meanings to be equally applicable to both the singular
and the plural forms of the terms defined:
"DTC" means The Depository Trust Company.
"FIXED RATE NOTES" means the Issuer's Fixed Rate Notes Due Nine
Months or More from the Date of Issue, substantially in the form of Exhibit A-1
attached hereto.
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"FLOATING RATE NOTES" means the Issuer's Floating Rate Notes Due
Nine Months or More from the Date of Issue, substantially in the form of Exhibit
A-2 attached hereto.
"INDENTURE" means the Original Indenture as supplemented by this
Tenth Supplemental Indenture.
"NOTES" means the Issuer's Medium-Term Notes Due Nine Months or More
from Date of Issue.
"PRICING SUPPLEMENT" means a pricing supplement to the Prospectus
dated June 13, 2000, as supplemented by the Prospectus Supplement dated June __,
2001, setting forth the terms of the applicable Notes.
SECTION 1.02. CREATION OF THE DEBT SECURITIES. In accordance with Section
301 of the Original Indenture, the Issuer hereby creates the Notes as a separate
series of its debt securities issued pursuant to the Indenture. The Notes shall
be issued in an aggregate principal amount not to exceed $150,000,000, or the
equivalent thereof in other currencies.
SECTION 1.03. FORM OF THE DEBT SECURITIES. The Fixed Rate Notes shall be
substantially in the form attached as Exhibit A-1 hereto. The Floating Rate
Notes shall be substantially in the form attached as Exhibit A-2 hereto. Each
Note shall be issuable and transferable in fully registered book-entry form or
certificated form as specified in the applicable Pricing Supplement.
SECTION 1.04. TERMS AND CONDITIONS OF THE DEBT SECURITIES. The Notes shall
be governed by all the terms and conditions of the Original Indenture, as
supplemented by this Tenth Supplemental Indenture, and in particular, the
following provisions shall be terms of the Notes:
(a) The aggregate principal amount of the Notes that may be authenticated
and delivered under the Indenture from time to time shall be up to $150,000,000
or the equivalent thereof in other currencies.
(b) Each Note shall mature on a date which shall be nine months or more
from the date of issue of such Note and shall be specified in the Pricing
Supplement.
(c) The interest rate or rates or the method of determination thereof, if
any, the date or dates or the method of determination thereof from which such
interest shall accrue, the date or dates on which such interest shall be
payable, and the regular record date for the interest payable on any interest
payment date, in each case for a particular Note, shall each be as specified in
the Pricing Supplement.
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(d) Unless stated to the contrary in the Pricing Supplement, the payment
of principal (and premium, if any) and interest on, a Note on any day, if the
Holder of this Note is DTC (or its nominee or other depository, a "Depository"),
will be made in accordance with any applicable provisions of such written
agreement between the Issuer and the Trustee as may be in effect from time to
time.
(e) Notes shall be issuable in denominations of (i) $1,000 and any amount
in excess thereof which is an integral multiple of $1,000, if the Notes are
denominated in U.S. Dollars, and (ii) if the Notes are denominated in a currency
other than U.S. Dollars, the Notes will be issuable in a minimum denomination
equivalent to U.S. $1,000, rounded to an integral multiple of 1,000 units of the
currency in which the Notes are denominated, and in any larger amount in
integral multiples of 1,000 units of that currency.
(f) Unless stated to the contrary on the face of a Note and in the Pricing
Supplement, such Note shall be issuable only in registered form without coupons
in book-entry form, represented by one or more global notes recorded in the
book-entry system maintained by DTC. If specified on the face thereof, Notes may
be issued in certificated form issued to, and registered in the name of, the
beneficial owner or its nominee.
(g) The Notes shall constitute senior unsecured and unsubordinated
obligations of the Issuer and will rank equally with all other unsecured and
unsubordinated indebtedness of the Issuer from time to time outstanding.
(h) There are no restrictive covenants pertaining to the Notes other than
those contained in the Indenture. Unless stated to the contrary on the face of
any Note and in the Pricing Supplement, the holders of the Notes shall have no
special rights in addition to those provided in the Indenture upon the
occurrence of any particular events. The Notes shall have no additional Events
of Default in addition to the Events of Default set forth in the Indenture.
(i) Unless stated to the contrary on the face of a Note and in the
applicable Pricing Supplement, the Issuer may, from time to time, reopen a
series of Notes and issue additional Notes with the same terms as Notes issued
on earlier date. After such additional Notes are issued they will be fungible
with the previously issued Notes to the extent specified in the applicable
Pricing Supplement.
ARTICLE TWO
TRUSTEE
SECTION 2.01. TRUSTEE. The Trustee shall not be responsible in any manner
whatsoever for or in respect of the validity or sufficiency of this Tenth
Supplemental Indenture
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or the due execution thereof by the Issuer. The recitals of fact contained
herein shall be taken as the statements solely of the Issuer, and the Trustee
assumes no responsibility for the correctness thereof. The Trustee is hereby
instructed to authenticate and deliver, from time to time, the Notes, pursuant
to the following procedures:
(a) the procedures set forth in the Administrative Procedures attached as
Exhibit D to the Distribution Agreement, as amended from time to time; and
(b) each advice of settlement information with respect to any of the Notes
issued pursuant to (a) above will be deemed an instruction by the Issuer
authenticate and deliver such Notes.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 3.01. RATIFICATION OF ORIGINAL INDENTURE. This Tenth Supplemental
Indenture is executed and shall be construed as an indenture supplemental to the
Original Indenture, and as supplemented and modified hereby, the Original
Indenture is in all respects ratified and confirmed, and the Original Indenture
and this Tenth Supplemental Indenture shall be read, taken and construed as one
and the same instrument.
SECTION 3.02. EFFECT OF HEADINGS. The Article and Section headings herein
are for convenience only and shall not affect the construction hereof.
SECTION 3.03. SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Tenth Supplemental Indenture by the Issuer shall bind its successors and
assigns, whether so expressed or not.
SECTION 3.04. SEPARABILITY CLAUSE. In case any one or more of the
provisions contained in this Tenth Supplemental Indenture shall for any reason
be held to be invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 3.05. GOVERNING LAW. This Tenth Supplemental Indenture shall be
governed by and construed in accordance with the laws of the State of New York.
This Tenth Supplemental Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this Tenth
Supplemental Indenture and shall, to the extent applicable, be governed by such
provisions.
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SECTION 3.06. COUNTERPARTS. This Tenth Supplemental Indenture may be
executed in any number of counterparts, and each of such counterparts shall for
all purposes be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Tenth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the date first above written.
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
By: DUKE-WEEKS REALTY CORPORATION
------------------------------------
General Partner
By: /s/ Matthew A. Cohoat
------------------------------------
Name: Matthew A. Cohoat
Title: SVP & Controller
Attest:
/s/ Douglas E. Greer
- -----------------------------------
Name: Douglas E. Greer
Title: VP & Deputy General Counsel
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By: __________________________
Name:
Title:
Attest:
____________________________________
Name:
Title:
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STATE OF ___________ )
) SS:
COUNTY OF __________ )
On the ___________ day of __________ 2001, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at _____________________________________, that he/she is
________________ of DUKE-WEEKS REALTY CORPORATION, the general partner of
DUKE-WEEKS REALTY LIMITED PARTNERSHIP, one of the parties described in and which
executed the foregoing instrument, and that he/she signed his/her name thereto
by authority of the Board of Directors.
[Notarial Seal]
________________________________________
Notary Public
COMMISSION EXPIRES
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STATE OF ___________ )
) SS:
COUNTY OF __________ )
On the __________ day of __________ 2001, before me personally came
____________________, to me known, who, being by me duly sworn, did depose and
say that he/she resides at _____________________________________, that he/she is
a _______________ of BANK ONE TRUST COMPANY, N.A., one of the parties described
in and which executed the foregoing instrument, and that he/she signed his/her
name thereto by authority of the Board of Directors.
[Notarial Seal]
________________________________________
Notary Public
COMMISSION EXPIRES
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EXHIBIT A-1
[insert if global security]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.]
REGISTERED REGISTERED
CUSIP NO. ____________ $_________
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(DUE NINE MONTHS OR MORE FROM DATE OF ISSUE)
(FIXED RATE)
Registered No. FXR- Original Issue Date:
Principal Amount: $ Maturity Date:
Designation: Fixed Rate Medium-Term Interest Rate:
Notes Due
Specified Currency:
|_| U.S. Dollars
|_| Other
A-1-1
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Dual Currency Note:
|_| Yes |_| No
Issue Price as a percentage of Principal Exchange Rate Agent (if other
Amount: than Bank One Trust Company,
N.A.):
Interest Payment Dates: Regular Record Dates: Fifteenth
calendar day (whether or not a
Business Day) prior to the
corresponding Interest Payment
Date
Original Issue Discount Note: Total Amount of OID:
|_| Yes |_| No
Redemption Date (s) (including any applicable Redemption Price(s):
regular or special record dates):
Stated Maturity Extension Option: Extension Period(s) and Final
|_| Yes |_| No Maturity (only applicable if
option to extend stated
maturity):
Repurchase Price(s): Repurchase Date(s) (including any
applicable regular or special
record dates)
|_| Option of the Issuer
|_| Option of the Holder
Basis for Interest Rate During Extension
Period (only applicable if option to extend
stated maturity):
Currency Indexed Note (check if yes): Amortizing Note (check if yes):
(if yes, see attachment) (if yes, see attachment)
Form: Other Terms:
|_| Book Entry |_| Certificated
A-1-2
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Duke-Weeks Realty Limited Partnership, an Indiana limited
partnership (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to [Insert
if the Security is to be a certificated security - _____,] [Insert if the
Security is to be a Global Security - Cede & Co., as nominee for the Depository
Trust Company], or its registered assigns, the Principal Amount stated above on
the Maturity Date, and to pay interest thereon on the Interest Payment Dates
specified above on such Principal Amount at the Interest Rate specified above
from the Interest Payment Date next preceding the date of authentication of this
Note to which interest has been paid on the Notes, unless the date of
authentication of this Note is a date to which interest has been paid, in which
case from the date of authentication of this Note, or unless no interest has
been paid on the Notes, in which case from the Original Issue Date specified
above, until payment of said Principal Amount has been made or duly provided
for. Notwithstanding the foregoing, if the date of authentication of this Note
is after a Regular Record Date specified above and before the next following
Interest Payment Date, this Note shall bear interest from such Interest Payment
Date, unless the Issuer shall default in the payment of interest due on such
Interest Payment Date, in which case this Note shall bear interest from the next
preceding Interest Payment Date to which interest has been paid on the Notes, or
unless no interest has been paid on the Notes, in which case this Note shall
bear interest from the Original Issue Date. If the Interest Payment Date, other
than any Interest Payment Date that is also the Maturity Date of this Note, is
not a Business Day, the Interest Payment Date will be postponed until the next
day that is a Business Day and interest will continue to accrue to such day that
is a Business Day. Unless otherwise specified on the face hereof, the "Interest
Payment Dates" shall be May 1 and November 1 of each year. The "Regular Record
Dates" shall be April 15 for a May 1 interest payment date, October 15 for a
November 1 interest payment date and the date that is 15 calendar days before
any other interest payment date, whether or not those dates are Business Days.
The interest so payable on any Interest Payment Date will be paid to
the Person in whose name this Note is registered at the close of business on the
Regular Record Date next preceding such Interest Payment Date, unless the
Original Issue Date is after a Regular Record Date and before the next following
Interest Payment Date, in which case interest will be paid on the Interest
Payment Date following the next succeeding Regular Record Date to the Person in
whose name the Note is registered at the close of business on such next
succeeding Regular Record Date, unless the Issuer shall default in the payment
of interest due on such Interest Payment Date, in which case such defaulted
interest shall be paid to the Person in whose name this Note is registered at
the close of business on a special record date for the payment of such defaulted
interest established in accordance with the Indenture, PROVIDED, HOWEVER, that
interest payable at the Maturity Date will be payable to the person to whom
principal is payable.
Unless otherwise specified on the face hereof, payments of principal
of (and premium, if any) and interest on this Note will be made in the
applicable Specified Currency, PROVIDED, HOWEVER, that if this Note is
denominated in a Specified Currency other than United States dollars (a "Foreign
Currency Note") payments of principal of (and premium, if any) and interest
hereon will
A-1-3
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[Insert if the Security is to be a Global Security - be made in
United States dollars unless the beneficial holder hereof gives
notice to the Depositary that it elects to receive payments in such
Specified Currency. Such notice must be given by the beneficial
holder of this Note to the participant of the Depositary through
which its interest is held on or before the applicable Regular
Record Date, in the case of a payment of interest, and on or before
the sixteenth day, whether or not a Business Day, before the Stated
Maturity, in the case of principal or premium, of the beneficial
owner's election to receive all or a portion of any payment in a
Specified Currency. The participant must notify the Depositary of
any election on or before the third business day after the Regular
Record Date. The Depositary will notify the Paying Agent of the
election, the portion of the payment to be made by the Paying Agent
in the Specified Currency and the applicable wire transfer
instructions, on or before the fifth Business Day after the Regular
Record Date. If complete instructions are received by the
participant and forwarded to the Depositary, and forwarded by the
Depositary to the Paying Agent, on or before the relevant dates, the
beneficial owner of this Note will receive payments in the Specified
Currency. In such event, the Paying Agent will pay the beneficial
holder directly. Such election will remain in effect until revoked
by written notice to the Trustee, but written notice of such
revocation must be received by the Trustee on or prior to the
applicable Regular Record Date or at least 15 days prior to
Maturity, as the case may be.]
[Insert if the Security is to be a Certificated Security - be made
in the applicable Specified Currency unless the Holder hereof elects
to receive all payments in respect hereof in United States dollars
by delivery of a written request to the Trustee on or prior to the
applicable Regular Record Date or at least 15 days prior to
Maturity, as the case may be. Such election may be in writing
(mailed or hand delivered) or by cable, telex or other form of
facsimile transmission. A Holder of such a Note may elect to receive
payment in United States dollars for all principal (and premium, if
any) and interest payments and need not file a separate election for
each payment. Such election will remain in effect until revoked by
written notice to the Trustee, but written notice of such revocation
must be received by the Trustee on or prior to the applicable
Regular Record Date or at least 15 days prior to Maturity, as the
case may be.]
Payment of the principal of (and premium, if any) and interest on
this Note due at Maturity in United States dollars will be made in immediately
available funds, provided that this Note is presented to the Trustee in time for
the Trustee to make such payment in accordance with its normal procedures.
[Insert if the Security is to be a Global Security - Payment of the
principal of (and premium, if any) and interest (other than interest payable at
Maturity) on this Note in United States dollars will be made by transfer of
immediately available funds to the Depositary or its nominee.]
A-1-4
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[Insert if the Security is to be a Certificated Security - Payment
of the principal of (and premium, if any) and interest on this Note due at
Maturity, the Redemption Date or the Repurchase Date, in United States dollars
will be made at the office or agency of the Issuer maintained for that purpose,
which shall initially be the corporate trust office of the Trustee located in
Chicago, Illinois, in immediately available funds. Payment of Interest on this
Note other than at Maturity, , the Redemption Date or the Repurchase Date shall
be made by United States dollar check mailed to the address of the Person
entitled thereto as of the applicable Record Date, as such address shall appear
in the Security Register; PROVIDED, HOWEVER, that a Holder of U.S.$10,000,000
(or, if the Specified Currency is other than United States dollars, the
equivalent thereof in the Specified Currency) or more in aggregate principal
amount of Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments on such Interest Payment Date by
wire transfer of immediately available funds if such Holder has delivered
appropriate wire transfer instructions in writing to the Trustee not less than
15 calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such Holder..]
All payments of principal (and premium, if any) and interest in a
Specified Currency other than United States dollars will be made in the manner
set forth on the reverse hereof.
The Issuer agrees to indemnify the Holder of any Note against any
loss incurred by such Holder as a result of any judgment or order being given or
made against the Issuer for any amount due hereunder and such judgment or order
requiring payment in a currency (the "Judgment Currency") other than the
Specified Currency, and as a result of any variation between (i) the rate of
exchange at which the Specified Currency amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such Holder, on the date of payment of such judgment or order,
is able to purchase the Specified Currency with the amount of the Judgment
Currency actually received by such Holder, as the case may be. The foregoing
indemnity constitutes a separate and independent obligation of the Issuer and
continues in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" includes any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be entitled to the benefits of the Indenture
referred to on the reverse hereof or be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under such Indenture.
A-1-5
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IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed manually or by facsimile by its authorized officers.
Dated as of: ________
DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE-WEEKS REALTY CORPORATION,
as General Partner
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
A-1-6
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
BANK ONE TRUSTCOMPANY, N.A.
as Trustee
By: ____________________________________
Authorized Officer
A-1-7
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[REVERSE OF NOTE]
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(DUE NINE MONTHS OR MORE FROM DATE OF ISSUE)
(FIXED RATE)
This security is one of a duly authorized issue of debentures,
notes, bonds, or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an Indenture dated as of September 19, 1995
(hereinafter called the "Indenture"), duly executed and delivered by the Issuer
to Bank One Trust Company, N.A. (successor in interest to The First National
Bank of Chicago), as Trustee (hereinafter called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
Securities of which this Note is a part), to which the Indenture and all
indentures supplemental thereto relating to this security reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties, and immunities thereunder of the Trustee, the Issuer, and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), and may otherwise vary as
provided in the Indenture or any indenture supplemental thereto. This Note is
one of a series designated as "Medium-Term Notes Due Nine Months or More from
Date of Issue" (herein referred to as the "Notes") of the Issuer, of up to
$150,000,000 in aggregate principal amount. All terms used in this Note which
are defined in the Indenture and which are not otherwise defined in this Note
shall have the meanings assigned to them in the Indenture. The terms of the
Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended. The Notes
are subject to all such terms, and the Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling.
Interest payments for this Note will include interest accrued from
and including the last date in respect of which interest has been paid or duly
provided for (or from and including the Original Issue Date if no interest has
been paid or provided for) to but excluding the Interest Payment Dates. Interest
payments for this Note shall be computed and paid on the basis of a 360-day year
of twelve 30-day months.
FORM OF NOTES
DUAL CURRENCY NOTES. This Note may be issued as a Note in which the
Issuer has a one-time option to pay the principal, premium, if any, and
interest, if any, on this Note in an optional currency specified on the face
hereof under "Other Terms" that is a different currency
A-1-8
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from the Specified Currency of this Note ("Dual Currency Notes"). The Issuer
shall provide the Holders two Business Days written notice of its exercise of
such option, which such exercise shall be irrevocable. Specific information
pertaining to Dual Currency Notes shall be included above under "Other Terms,"
and shall include, without limitation, Specified Currency for the dual currency
note:
o the Specified Currency;
o the Optional Payment Currency;
o the Designated Exchange Rate;
o the Option Election Date; and
o the Interest Payment Dates for Dual Currency Notes.
The amounts payable and the method for calculating these amounts
with respect to Dual Currency Notes and any additional terms and conditions of
any issue of Dual Currency Notes will be specified on the face hereof.
EXTENDIBLE NOTES. This Note may be issued as a Note in which the
Issuer has the option to extend the Notes' stated Maturity Date for one or more
whole years up to a date set forth on the face hereof ("Extendible Notes"). In
the event the Issuer elects to extend the Extendible Notes, the Issuer must
notify the Trustee no less than 45 nor more than 60 calendar days prior to the
Extendible Notes' original stated Maturity Date. The Trustee will notify the
Holder of the Issuers extension of the Maturity by first class mail. The notice
must specify the Extendible Notes' new Maturity Date, the interest rate
applicable to the extension period and any applicable redemption provisions.
The interest rate may be increased for the extension period if the
Issuer notifies the Trustee prior to 10:00 a.m., New York City time, on the
twentieth calendar day before the extended Extendible Notes are scheduled to
mature. The Trustee will send notice to the Holders in a manner agreed upon by
the Trustee and the Issuer. This increased interest rate may not be revoked.
In the event the Issuer extends the period Maturity of the
Extendible Notes, the Holder has the option to require the Issuer to repay such
Extendible Notes on the Maturity Date then in effect at a price equal to the
principal amount of the Extendible Notes plus any accrued interest to such date.
In order to exercise this option the Holder must notify the Trustee no less than
25 nor more than 60 calendar days prior to the date the Extendible Notes are
scheduled to Mature. Such notice may be made by delivering to the Trustee the
Extendible Notes with the attached "Option to Elect Repayment" form completed,
or a letter from a broker/dealer, bank or trust company notifying the Trustee of
the Holder's intent to redeem its Extendible Notes and guaranteeing that the
Extendible Notes and the attached "Option to Elect Repayment" form will be
delivered no later than five Business Days after the date set for redemption.
The Holder may revoke its election to be repaid at any time before 3:00 p.m.,
New York City time, on the
A-1-9
<Page>
twentieth calendar day prior to the date the Extendible Notes are scheduled to
mature.
ORIGINAL ISSUE DISCOUNT NOTES. This Note may be issued as a Note in
which the issue price (set forth on the face hereof) is less than 100% of the
principal amount thereof, (i.e. par) by more than a percentage equal to the
product of 0.25% and the number of full years to the Maturity Date ("Original
Issue Discount Notes"). Original Issue Discount Notes may not bear any interest
currently or may bear interest at a rate that is below market rates at the time
of the issuance. The difference between the issue price of an Original Issue
Discount Note and par is referred to as the "Discount." In the event of
redemption, repayment or acceleration of Maturity of an Original Issue Discount
Note, the amount payable to the Holder will be equal to the sum of:
o the issue price (increased by any accruals of Discount)
and, in the event of any redemption of the applicable Original Issue
Discount Note, if applicable, multiplied by the initial redemption
percentage (as adjusted, if applicable); and
o any unpaid interest accrued on the Original Issue
Discount Note to the date of the redemption, repayment or
acceleration of the Maturity, as the case may be.
For purposes of determining the amount of Discount that has accrued
as of any date on which a redemption, repayment or acceleration of Maturity
occurs for an Original Issue Discount Note, a Discount will be accrued using a
constant yield method. The constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates for the applicable Original Issue Discount Note (with
ratable accruals within a compounding period), a coupon rate equal to the
initial coupon rate applicable to the Original Issue Discount Note and an
assumption that the Maturity of an Original Issue Discount Note will not be
accelerated. If the period from the date of issue to the first Interest Payment
Date for an Original Issue Discount Note (the "Initial Period") is shorter than
the compounding period for the Original Issue Discount Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the then the compounding, then the period will be
divided into a regular compounding period and a short with the short period
being treated as provided in the preceding sentence. The accrual of the
applicable Discount may differ from the accrual of original issue discount for
purposes of the Internal Revenue Code of 1986 (the "Code"), as amended, certain
Original Issue Discount Notes may not be treated as having original issue
discount within the meaning of the Code, and notes other than Original Issue
Discount Notes may be treated as issued with original issue discount for federal
income tax purposes.
GENERAL INFORMATION REGARDING THE NOTES
CERTAIN DEFINITIONS. "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which
commercial banks are authorized or required by law, regulation or executive
order to close in The City of New York; PROVIDED, HOWEVER, that if the Specified
Currency is other than United States dollars, such day must not be
A-1-10
<Page>
a day on which commercial banks are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of
the country issuing the Specified Currency (or, if the Specified Currency is
Euro, such day must be a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open). "Principal Financial
Center" means the capital city of the country issuing the Specified Currency,
except that with respect to United States dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Italian lire, South African rand and
Swiss francs, the "Principal Financial Center" shall be The City of New York,
Sydney and Melbourne, Toronto, Frankfurt, Amsterdam, Milan, Johannesburg and
Zurich, respectively.
REDEMPTION BY THE ISSUER. Unless one or more Redemption Dates is
specified on the face hereof, this Note shall not be redeemable at the option of
the Issuer before the Maturity Date specified on the face hereof. If one or more
Redemption Dates is so specified, this Note is subject to redemption on any such
date at the option of the Issuer, upon notice by first-class mail, mailed not
less than 30 days nor more than 60 days (unless otherwise specified on the face
hereof) prior to the applicable Redemption Date specified in such notice, at the
applicable Redemption Price specified on the face hereof (expressed as a
percentage of the principal amount of this Note), together in the case of any
such redemption with accrued interest to the Redemption Date. Unless otherwise
specified on the face hereof, the Issuer may elect to redeem less than the
entire principal amount hereof.
REPURCHASE AT THE OPTION OF THE HOLDER. Unless one or more
Repurchase Dates at the option of the Holder is specified on the face hereof,
this Note shall not be repayable at the option of the Holder on any date prior
to the Maturity Date specified on the face hereof. If one or more Repurchase
Dates is so specified, this Note is subject to repurchase on any such date at
the option of the Holder at the applicable Repurchase Price specified on the
face hereof (expressed as a percentage of the principal amount of this Note),
together in the case of any such repayment with accrued interest to the
Repurchase Date, but interest installments whose Stated Maturity is prior to the
Repurchase Date will be payable to the Holder of this Note, or one or more
Predecessor Notes, of record at the close of business on the relevant Regular
Record Dates referred to on the face hereof. For this Note to be repaid at the
option of the Holder, the Trustee must receive at the principal office of its
Corporate Trust Department in Chicago, Illinois, at least 30 days but not more
than 60 days (unless otherwise specified on the face hereof) prior to the
Repurchase Date on which this Note is to be repaid:
(i) appropriate wire instructions; and
(ii) either (a) the Note with the form entitled "Option to Elect
Repayment" on the reverse of the Note duly completed, or (b) a
telegram, telex, facsimile transmission or letter 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 setting forth:
(1) the name of the holder of the Note;
(2) the principal amount of the Note;
A-1-11
<Page>
(3) the portion of the principal amount of the Note to be
repurchased;
(4) the certificate number or a description of the tenor and
terms of the Note;
(5) a statement that the option to elect repurchase is being
exercised; and
(6) [insert if certificated note][a guarantee that the Note
to be repaid with the form entitled "Option to Elect
Repayment" on the reverse of the Note duly completed
will be received by the Trustee within five Business
Days. The Trustee must actually receive the Note and
form duly completed by the fifth Business Day.]
[insert if global security] [The above instructions shall be
delivered to the Depositary who will forward them to the Trustee.]
Exercise of the repurchase option by the Holder of a Note shall be
irrevocable. The Holder of a Note may exercise the repurchase option for less
than the entire principal amount of the Note provided that the principal amount
of the Note remaining outstanding after repurchase is an Authorized
Denomination. No transfer or exchange of any Note will be permitted after
exercise of a repurchase option. If a Note is to be repurchased in part, no
transfer or exchange of the portion of the Note to be repurchased will be
permitted after exercise of a repurchase option. All questions as to the
validity, eligibility, including time of receipt, and acceptance of any note for
repurchase will be determined by the Issuer and its determination will be final,
binding and non-appealable.
[Insert if the Security is to be a Certificated Security - In the
event of redemption or repayment of this Note in part only, a new Note or Notes
of this series and of like tenor and for a principal amount equal to the
unredeemed or unrepaid portion will be delivered to the registered Holder upon
the cancellation hereof.]
[Insert if the Security is to be a Global Security - In the event of
redemption or repayment of this Note in part only, the Principal Amount shall be
reduced.]
CALCULATION OF EXCHANGE RATES. If this is a Foreign Currency Note to
be paid in United States dollars, the United States dollar amount to be received
in respect hereof will be based upon the exchange rate as determined by the
Exchange Rate Agent based on the most favorable firm bid quotation for United
States dollars received by such Exchange Rate Agent at approximately 11:00 a.m.,
New York City time, on the second Business Day preceding the applicable payment
date from three recognized foreign exchange dealers in The City of New York
selected by the Exchange Rate Agent and approved by the Issuer (one of which may
be the Exchange Rate Agent) for the purchase by the quoting dealer, for
settlement on such payment date, of the aggregate amount of the Specified
Currency payable on such payment date in respect of this Note. If three quoting
dealers are not available then two dealers will be used. If no such bid
quotations are available, payments will be made in the Specified Currency,
unless such
A-1-12
<Page>
Specified Currency is unavailable due to the imposition of exchange controls or
to other circumstances beyond the Issuer's control, in which case the Issuer
will be entitled to make payments in respect hereof in United States dollars as
provided in the manner set forth below. All currency exchange costs will be
borne by the Holder hereof by deductions from such payments. The determination
of the exchange rate pursuant to the provisions of this Section is referred to
herein as the "Market Exchange Rate."
PAYMENTS IN SPECIFIED CURRENCIES. If a Holder is to receive payments
in a Specified Currency other than United States dollars as described on the
face hereof, payments of principal of (and premium, if any) and interest will be
paid in immediately available funds by wire transfer to an account maintained by
the Holder with a bank designated by the Holder (which in the case of Global
Securities will be the Depositary or its nominee) on or prior to the Regular
Record Date or at least 15 days prior to Maturity, as the case may be, in the
case of Certificated Securities or, in the case of Global Securities, in the
manner specified on the face hereof in the third paragraph thereof following the
summary of terms, provided that such bank has the appropriate facilities for
such a payment in the Specified Currency, PROVIDED, HOWEVER, that with respect
to payments of principal and premium, if any, and interest at Maturity this Note
is presented to the Trustee in time for the Trustee to make such payment in
accordance with its normal procedures, which shall require presentation no later
than two Business Days prior to Maturity in order to ensure the availability of
immediately available funds in the Specified Currency at Maturity.
If payment on this Note is required to be made in a Specified
Currency other than United States dollars and such currency is unavailable in
the good faith judgment of the Issuer due to the imposition of exchange controls
or to other circumstances beyond the Issuer's control, or is no longer used by
the government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then all payments with respect to this Note shall be made in United
States dollars until such currency is again available or so used. The amount so
payable on any date in such Specified Currency shall be converted into United
States dollars at a rate determined by the Exchange Rate Agent on the basis of
the Market Exchange Rate on the second Business Day prior to such payment, or,
if the Market Exchange Rate is not then available, the most recently available
Market Exchange Rate or as otherwise determined in good faith by the Issuer if
the foregoing is impracticable.
If this is a Foreign Currency Note, in the event of an official
redenomination of such foreign currency (including, without limitation, an
official redenomination of a foreign currency that is a composite currency) the
obligations of the Issuer with respect to payments on this Note denominated in
such currency shall, in all cases, be deemed immediately following such
redenomination to provide for the payment of that amount of redenominated
currency representing the amount of such obligations immediately before such
redenomination. No adjustment will be made to any amount payable under this Note
as a result of (a) any change in the value of a foreign currency relative to any
other currency due solely to fluctuations in exchange rates or (b) any
redenomination of any component currency of any composite currency (unless such
composite currency is itself officially redenominated).
A-1-13
<Page>
ACCELERATION UPON AN EVENT OF DEFAULT. If an Event of Default with
respect to Notes of this series shall occur and be continuing, the Principal
Amount of the Notes of this series may be declared due and payable in the manner
and with the effect provided in the Indenture. Unless otherwise specified on the
face hereof, if any Original Issue Discount Note (as defined below) is redeemed
or repurchased by the Issuer or repurchased at the option of the Holder, each as
described above, or if the principal of any Original Issue Discount Note is
declared to be due and payable immediately pursuant to this paragraph, the
amount of principal due and payable with respect to this Note shall be limited
to the sum of the aggregate principal amount of this Note multiplied by the
Issue Price (expressed as a percentage of the aggregate principal amount) plus
the original issue discount accrued from the date of issue to the date of
redemption, repayment or declaration, as applicable, which accrual shall be
calculated using the "interest method" (computed in accordance with generally
accepted accounting principles) in effect on the date of redemption, repurchase
or declaration. Unless otherwise specified on the face hereof, an Original Issue
Discount Note is a Note which has a stated redemption price at maturity that
exceeds its Issue Price by at least 0.25% of the stated redemption price at
maturity, multiplied by the number of full years from the Original Issue Date to
the Maturity Date for this Note.
MODIFICATION OF RIGHTS UNDER INDENTURE. The Indenture contains
provisions permitting the Issuer and the Trustee, with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
Securities at the time outstanding of all series to be affected (voting as one
class), evidenced as provided in the Indenture, 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 series;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Security so affected, (i) change the Stated
Maturity of the principal of (or premium, if any, on) or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate or amount of interest thereon, or adversely affect any right
of repayment at the option of the Holder of any Security, or change any Place of
Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof, or (ii)
reduce the aforesaid percentage of Securities, the Holders of which are required
to consent to any such supplemental indenture, or (iii) reduce the percentage of
Securities, the Holders of which are required to consent to any waiver of
compliance with certain provisions of the Indenture or any waiver of certain
defaults thereunder. It is also provided in the Indenture that, with respect to
certain defaults or Events of Default regarding the Securities of any series,
the Holders of a majority in aggregate principal amount outstanding of the
Securities of such series (or, in the case of certain defaults or Events of
Default, all series of Securities) may on behalf of the Holders of all the
Securities of such series (or all of the Securities, as the case may be) waive
any such past default or Event of Default and its consequences, prior to any
declaration accelerating the maturity of such Securities, or, subject to certain
conditions, may rescind a declaration of acceleration and its consequences with
respect to such Securities. Any such consent or waiver by the Holder of this
security (unless revoked as provided in the Indenture) shall be conclusive and
binding upon such Holder and upon all future Holders and owners of the security
and any securities that may be issued
A-1-14
<Page>
in exchange or substitution herefor, irrespective of whether or not any notation
thereof is made upon this security or such other securities.
No reference herein to the Indenture and no provision of this
security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this security in the manner, at the respective times, at the rate and in the
coin or currency herein prescribed.
TRANSFERS OF NOTES. As provided in the Indenture and subject to
certain limitations set forth therein and as may be set forth on the face
hereof, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuer in any place where the principal of (and premium, if any) and
interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer 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 of like tenor, of
Authorized Denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
[Insert if the Security is a Global Security -
GLOBAL NOTES. This Note is a Global Note and shall be exchangeable
for Notes registered in the names of Persons other than the Depositary with
respect to this Global Note or its nominee only if (A) such Depositary notifies
the Issuer that it is unwilling or unable to continue as Depositary for this
Global Note or at any time ceases to be a clearing agency registered as such
under the Securities Exchange Act of 1934, as amended, (B) the Issuer in its
sole discretion executes and delivers to the Trustee a Issuer Order that this
Global Note shall be exchangeable or (C) there shall have occurred and be
continuing an Event of Default with respect to the Notes. If this Global Note is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
Notes issuable in denominations of $1,000 and any integral multiple of $1,000 in
excess thereof, registered in such names as such Depositary shall direct.]
DENOMINATION. The Notes of this series are issuable, in the case of
Notes denominated in United States dollars, in denominations of U.S. $1,000 and
any integral multiple of U.S. $1,000 in excess thereof and, in the case of Notes
denominated in a Specified Currency other than United States dollars, in the
authorized denominations set forth on the face hereof (in each case, an
"Authorized Denomination").
EXCHANGE OF NOTES. As provided in the Indenture and subject to
certain limitations set forth therein and as may be set forth on the face
hereof, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series of like tenor of a different Authorized
Denomination, as requested by the Holder surrendering the same. No service
charge shall be made for any such registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
REGISTERED OWNER. Upon due presentment for registration of transfer
of Securities
A-1-15
<Page>
at the office or agency of the Issuer in The Borough of Manhattan, The City of
New York, one or more new Securities of the same series of authorized
denominations in an equal aggregate principal amount will be issued to the
transferee in exchange therefor, subject to the limitations provided in the
Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Issuer, the Trustee or any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this security is registered
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 subject to the provisions on the face hereof, interest hereon, and for all
other purposes, and neither the Issuer nor the Trustee nor any authorized agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
GOVERNING LAW. The Indenture and each Security shall be deemed to be
a contract under the laws of the State of New York, and for all purposes shall
be construed in accordance with the laws of such state, except as may otherwise
be required by mandatory provisions of law.
DEFINED TERMS. Capitalized terms used herein which are not otherwise
defined shall have the respective meanings assigned to them in the Indenture and
all indentures supplemental thereto relating to this security.
A-1-16
<Page>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<Table>
TEN - as tenants in common UNIF GIFT MIN -___________ Custodian
COM ACT _______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to
survivorship and not as Minors
tenants Act___________________
in common (State)
</Table>
Additional abbreviations may also be used though not in the above list.
A-1-17
<Page>
ASSIGNMENT
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 typewrite name and address including postal zip code of
assignee)
________________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
________________________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated: _________________ ________________________________________
_________________ ________________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of this
Note in every particular, without
alteration or enlargement or any change
whatsoever.
A-1-18
<Page>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Issuer
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at __________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in Chicago, Illinois, currently located at 1 Bank One
Plaza, Suite IL1-0126, Chicago, Illinois 60670-0126, not more than 60 nor less
than 30 calendar days prior to the Repayment Date, this Note with this "Option
to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of U.S. $1,000 or
other integral multiple of an Authorized Denomination) (provided that any
remaining principal amount shall be at least U.S. $1,000 or such other minimum
Authorized Denomination) which the Holder elects to have repaid and specify the
denomination or denominations (which shall be U.S. $1,000 or such other minimum
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal
Amount
to be Repaid: $ __________ ________________________________________
Notice: The signature(s) on this Option
Dated: ___________________ to Elect Repayment must correspond with
the name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatsoever.](1)
- ----------
(1) This form applies to certificated Notes only.
A-1-19
<Page>
EXHIBIT A-2
[insert if global security]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), 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 IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC AND ANY PAYMENT IS MADE TO CEDE
& CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF
DTC, ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO
ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS
AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
DTC TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO DTC OR ANOTHER NOMINEE OF
DTC OR BY DTC OR ANY SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH
SUCCESSOR.]
REGISTERED REGISTERED
CUSIP NO. ____________ $_________
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(DUE NINE MONTHS OR MORE FROM DATE OF ISSUE)
(FLOATING RATE)
Registered No. R- Original Issue Date:
Principal Amount: $ Maturity Date:
Designation: Fixed Rate Medium-Term Interest Rate:
Notes Due
Specified Currency: Interest Reset Dates:
|_| U.S. Dollars
|_| Other
Dual Currency Note:
|_| Yes |_| No
A-2-1
<Page>
Issue Price as a percentage of Principal Exchange Rate Agent (if other
Amount: than Bank One Trust Company,
N.A.):
Interest Payment Period: Index Currency:
Initial Interest Rate: Index Maturity:
Base Rate: Maximum Interest Rate:
Spread: Minimum Interest Rate:
Spread Multiplier: Designated LIBOR Page:
|_| LIBOR Telerate
Calculation Dates: |_| LIBOR Reuters
Interest Payment Dates: Regular Record Dates: Fifteenth
calendar day (whether or not a
Business Day) prior to the
corresponding Interest Payment
Date
Original Issue Discount Note: Total Amount of OID:
|_| Yes |_| No
Redemption Date (s) (including any applicable Redemption Price(s):
regular or special record dates):
Stated Maturity Extension Option: Extension Period(s) and Final
|_| Yes |_| No Maturity (only applicable if
option to extend stated
maturity):
Repurchase Price(s): Repurchase Date(s) (including any
applicable regular or special
record dates)
|_| Option of the Issuer
|_| Option of the Holder
Basis for Interest Rate During Extension
Period (only applicable if option to extend
stated maturity):
Currency Indexed Note (check if yes): Amortizing Note (check if yes):
(if yes, see attachment) (if yes, see attachment)
Form: Terms:
|_| Book Entry |_| Certificated Other
A-2-2
<Page>
Duke-Weeks Realty Limited Partnership, an Indiana limited
partnership (the "Issuer," which term includes any successor under the Indenture
hereinafter referred to), for value received, hereby promises to pay to [Insert
if the Security is to be a certificated security - _____,] [Insert if the
Security is to be a Global Security - Cede & Co., as nominee for the Depository
Trust Company], or its registered assigns, the Principal Amount stated above on
the Maturity Date, and to pay interest thereon on the Interest Payment Dates
specified above on such Principal Amount at the Interest Rate specified above
until the first Interest Reset Date specified above and thereafter in accordance
with the applicable provisions set forth below from the Interest Payment Date
next preceding the date of authentication of this Note to which interest has
been paid on the Notes, unless the date of authentication of this Note is a date
to which interest has been paid, in which case from the date of authentication
of this Note, or unless no interest has been paid on the Notes, in which case
from the Original Issue Date specified above, until payment of said Principal
Amount has been made or duly provided for. Notwithstanding the foregoing, if the
date of authentication of this Note is after a Regular Record Date specified
above and before the next following Interest Payment Date, this Note shall bear
interest from such Interest Payment Date, unless the Issuer shall default in the
payment of interest due on such Interest Payment Date, in which case this Note
shall bear interest from the next preceding Interest Payment Date to which
interest has been paid on the Notes, or unless no interest has been paid on the
Notes, in which case this Note shall bear interest from the Original Issue Date.
If the Interest Payment Date, other than any Interest Payment Date that is also
the Maturity Date of this Note, is not a Business Day, the Interest Payment Date
will be postponed until the next day that is a Business Day and interest will
continue to accrue to such day that is a Business Day; provided however, in the
case of a LIBOR Note, if the next Business Day is in the following calendar
month, the Interest Payment Date will be the preceding Business Day. The
"Interest Payment Dates" shall be as specified on the face hereof. The "Regular
Record Dates" shall be the date that is 15 calendar days before any Interest
Payment Date, whether or not those dates are Business Days.
The interest so payable on any Interest Payment Date will be paid to
the Person in whose name this Note is registered at the close of business on the
Regular Record Date next preceding such Interest Payment Date, unless the
Original Issue Date is after a Regular Record Date and before the next following
Interest Payment Date, in which case interest will be paid on the Interest
Payment Date following the next succeeding Regular Record Date to the Person in
whose name the Note is registered at the close of business on such next
succeeding Regular Record Date, unless the Issuer shall default in the payment
of interest due on such Interest Payment Date, in which case such defaulted
interest shall be paid to the Person in whose name this Note is registered at
the close of business on a special record date for the payment of such defaulted
interest established in accordance with the Indenture, PROVIDED, HOWEVER, that
interest payable at the Maturity Date will be payable to the person to whom
principal is payable.
Unless otherwise specified on the face hereof, payments of principal
of (and premium, if any) and interest on this Note will be made in the
applicable Specified Currency, PROVIDED, HOWEVER, that if this Note is
denominated in a Specified Currency other than United States dollars (a "Foreign
Currency Note") payments of principal of (and premium, if any)
A-2-3
<Page>
and interest hereon will
[Insert if the Security is to be a Global Security - be made in
United States dollars unless the beneficial holder hereof gives
notice to the Depositary that it elects to receive payments in such
Specified Currency. Such notice must be given by the beneficial
holder of this Note to the participant of the Depositary through
which its interest is held on or before the applicable Regular
Record Date, in the case of a payment of interest, and on or before
the sixteenth day, whether or not a Business Day, before the Stated
Maturity, in the case of principal or premium, of the beneficial
owner's election to receive all or a portion of any payment in a
Specified Currency. The participant must notify the Depositary of
any election on or before the third business day after the Regular
Record Date. The Depositary will notify the Paying Agent of the
election, the portion of the payment to be made by the Paying Agent
in the Specified Currency and the applicable wire transfer
instructions, on or before the fifth Business Day after the Regular
Record Date. If complete instructions are received by the
participant and forwarded to the Depositary, and forwarded by the
Depositary to the Paying Agent, on or before the relevant dates, the
beneficial owner of this Note will receive payments in the Specified
Currency. In such event, the Paying Agent will pay the beneficial
holder directly. Such election will remain in effect until revoked
by written notice to the Trustee, but written notice of such
revocation must be received by the Trustee on or prior to the
applicable Regular Record Date or at least 15 days prior to
Maturity, as the case may be.]
[Insert if the Security is to be a Certificated Security - be made
in the applicable Specified Currency unless the Holder hereof elects
to receive all payments in respect hereof in United States dollars
by delivery of a written request to the Trustee on or prior to the
applicable Regular Record Date or at least 15 days prior to
Maturity, as the case may be. Such election may be in writing
(mailed or hand delivered) or by cable, telex or other form of
facsimile transmission. A Holder of such a Note may elect to receive
payment in United States dollars for all principal (and premium, if
any) and interest payments and need not file a separate election for
each payment. Such election will remain in effect until revoked by
written notice to the Trustee, but written notice of such revocation
must be received by the Trustee on or prior to the applicable
Regular Record Date or at least 15 days prior to Maturity, as the
case may be.]
Payment of the principal of (and premium, if any) and interest on
this Note due at Maturity in United States dollars will be made in immediately
available funds, provided that this Note is presented to the Trustee in time for
the Trustee to make such payment in accordance with its normal procedures.
[Insert if the Security is to be a Global Security - Payment of the
principal of (and premium, if any) and interest (other than interest payable at
Maturity) on this Note in United States dollars will be made by transfer of
immediately available funds to the Depositary or its nominee.]
A-2-4
<Page>
[Insert if the Security is to be a Certificated Security - Payment
of the principal of (and premium, if any) and interest on this Note due at
Maturity, the Redemption Date or the Repurchase Date, in United States dollars
will be made at the office or agency of the Issuer maintained for that purpose,
which shall initially be the corporate trust office of the Trustee located in
Chicago, Illinois, in immediately available funds. Payment of Interest on this
Note, other than at Maturity, the Redemption Date or the Repurchase Date, shall
be made by United States dollar check mailed to the address of the Person
entitled thereto as of the applicable Record Date, as such address shall appear
in the Security Register; PROVIDED, HOWEVER, that a Holder of U.S.$10,000,000
(or, if the Specified Currency is other than United States dollars, the
equivalent thereof in the Specified Currency) or more in aggregate principal
amount of Notes (whether having identical or different terms and provisions)
will be entitled to receive interest payments on such Interest Payment Date by
wire transfer of immediately available funds if such Holder has delivered
appropriate wire transfer instructions in writing to the Trustee not less than
15 calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such Holder.]
All payments of principal (and premium, if any) and interest in a
Specified Currency other than United States dollars will be made in the manner
set forth on the reverse hereof.
The Issuer agrees to indemnify the Holder of any Note against any
loss incurred by such Holder as a result of any judgment or order being given or
made against the Issuer for any amount due hereunder and such judgment or order
requiring payment in a currency (the "Judgment Currency") other than the
Specified Currency, and as a result of any variation between (i) the rate of
exchange at which the Specified Currency amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such Holder, on the date of payment of such judgment or order,
is able to purchase the Specified Currency with the amount of the Judgment
Currency actually received by such Holder, as the case may be. The foregoing
indemnity constitutes a separate and independent obligation of the Issuer and
continues in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" includes any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
The interest payable hereon on each Interest Payment Date will
include accrued interest from the Original Issue Date or from the last date in
respect of which interest has been paid on the Notes (subject to the applicable
provisions set forth above), as the case may be, to, but excluding, such
Interest Payment Date or Maturity Date, as the case may be. The interest rate in
effect on the Notes from the Original Issue Date, to, but excluding, the first
Interest Reset Date will be the Initial Interest Rate. Thereafter, the Notes
will bear interest at a rate reset for each period ending on and excluding an
Interest Reset Date and commencing on and including the immediately preceding
Interest Reset Date (or, if none, the Original Issue Date) (each an "Interest
Reset Period") determined by the Calculation Agent. The interest rate per annum
on this Note for each Interest Reset Period shall be the Base Rate designated
above (determined as set forth on the reverse hereof), in each case adjusted by
the addition or subtraction of the Spread, if any,
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<Page>
specified above and by the multiplication by the Spread Multiplier, if any,
specified above. Accrued interest is calculated by multiplying the face amount
hereof by an accrued interest factor. The accrued interest factor will be
computed by adding the interest factors calculated for each day for which
accrued interest is being calculated. Unless otherwise specified on the face
hereof, the interest factor for each day is computed by dividing the interest
rate in effect on that day by (i) the actual number of days in the year, in the
case of the Treasury Rate Notes and CMT Rate Notes, or (ii) 360 days, in the
case of all other Notes.
The interest rate on a Note in effect on any day will be (i) if the
day is an Interest Reset Date, the interest rate with respect to the Interest
Determination Date relating to that Interest Reset Date; or (ii) if the day is
not an Interest Reset Date, the interest rate with respect to the Interest
Determination Date relating to the preceding Interest Reset Date.
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. In addition, the interest rate hereon shall in no event be
higher than the maximum rate permitted by New York State law as the same may be
modified by United States law of general application.
Reference is made to the further provisions of this Note set forth
on the reverse hereof. Such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
This Note shall not be entitled to the benefits of the Indenture
referred to on the reverse hereof or be valid or become obligatory for any
purpose until the certificate of authentication hereon shall have been signed by
the Trustee under such Indenture.
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<Page>
IN WITNESS WHEREOF, the Issuer has caused this instrument to be
signed manually or by facsimile by its authorized officers.
Dated as of: ________
DUKE-WEEKS REALTY LIMITED PARTNERSHIP,
as Issuer
By: DUKE-WEEKS REALTY CORPORATION,
as General Partner
By: ____________________________________
Name:
Title:
By: ____________________________________
Name:
Title:
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<Page>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein
referred to in the within-mentioned Indenture.
BANK ONE TRUST COMPANY, N.A.
as Trustee
By: ____________________________________
Authorized Officer
A-2-8
<Page>
[REVERSE OF NOTE]
DUKE-WEEKS REALTY LIMITED PARTNERSHIP
MEDIUM-TERM NOTE
(DUE NINE MONTHS OR MORE FROM DATE OF ISSUE)
(FLOATING RATE)
This security is one of a duly authorized issue of debentures,
notes, bonds, or other evidences of indebtedness of the Issuer (hereinafter
called the "Securities") of the series hereinafter specified, all issued or to
be issued under and pursuant to an Indenture dated as of September 19, 1995
(hereinafter called the "Indenture"), duly executed and delivered by the Issuer
to Bank One Trust Company, N.A. (successor in interest to The First National
Bank of Chicago), as Trustee (hereinafter called the "Trustee," which term
includes any successor trustee under the Indenture with respect to the series of
Securities of which this Note is a part), to which the Indenture and all
indentures supplemental thereto relating to this security reference is hereby
made for a description of the rights, limitations of rights, obligations,
duties, and immunities thereunder of the Trustee, the Issuer, and the Holders of
the Securities, and of the terms upon which the Securities are, and are to be,
authenticated and delivered. The Securities may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), and may otherwise vary as
provided in the Indenture or any indenture supplemental thereto. This Note is
one of a series designated as "Medium-Term Notes Due Nine Months or More from
Date of Issue" (herein referred to as the "Notes") of the Issuer, of up to
$150,000,000 in aggregate principal amount. All terms used in this Note which
are defined in the Indenture and which are not otherwise defined in this Note
shall have the meanings assigned to them in the Indenture. The terms of the
Notes include those stated in the Indenture and those made a part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended. The Notes
are subject to all such terms, and the Holders are referred to the Indenture and
such Act for a statement of such terms. To the extent any provision of this Note
conflicts with the provisions of the Indenture, the provisions of the Indenture
shall govern and be controlling.
Interest payments for this Note will include interest accrued from
and including the last date in respect of which interest has been paid or duly
provided for (or from and including the Original Issue Date if no interest has
been paid or provided for) to but excluding the Interest Payment Dates. Interest
payments for this Note shall be computed and paid on the basis of a 360-day year
of twelve 30-day months.
INTEREST RATE
INTEREST RATE RESET. The rate of interest on this Note will be reset
daily, weekly, monthly, quarterly, semi-annually, annually or as otherwise
specified on the face hereof (each an "Interest Reset Date"), as specified on
the face hereof. Unless otherwise 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 Base Rate on this Note is the Treasury Rate),
Wednesday of each week;
A-2-9
<Page>
if this Note resets weekly and the Base Rate on this Note is the Treasury Rate,
Tuesday of each week; if this Note resets monthly (unless the Base Rate on this
Note is the Eleventh District Cost of Funds Rate), the third Wednesday of each
month; if this Note is an Eleventh District Cost of Funds Rate Note, all of
which reset monthly, the first calendar day of each month; if this Note resets
quarterly, as specified on the face hereof; if this Note resets semi-annually,
the third Wednesday of each of two months of each year, as specified on the face
hereof; and if this Note resets 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 issue to the first Interest Reset Date will be
the Initial Interest Rate specified on the face hereof.
If an Interest Reset Date for any Note would otherwise be a day that
is not a Business Day, that Interest Reset Date will be postponed to the next
Business Day. However, in the case of a Note whose interest will be determined
in accordance with the provisions of the heading "Determination of LIBOR" below,
if that Business Day is in the following calendar month, that Interest Reset
Date will be the preceding Business Day. If a Treasury bill auction, as set
forth and described in the definition of "Interest Determination Date" in this
Note, will be held on any day that would otherwise be an Interest Reset Date for
a Note whose interest will be determined in accordance with the provisions of
the heading "Determination of Treasury Rate" below, then that Interest Reset
Date will instead be the Business Day immediately following that auction date.
CALCULATION OF BASE RATE. The Base Rate applicable to this Note will
be calculated as set forth in the appropriate paragraph below.
DETERMINATION OF CD RATE. Unless otherwise specified on the face
hereof, if the Base Rate is the CD Rate, CD Rate means, with respect to any
Interest Determination Date, the rate on that date for negotiable certificates
of deposit having the Index Maturity specified on the face hereof, as published
in H.15(519) prior to 9:00 a.m., New York City time, on the Calculation Date
pertaining to that Interest Determination Date under the heading "CDs (secondary
market)." The following procedures will be followed if the CD Rate cannot be
determined as described in the immediately preceding sentence: (i) if by 9:00
a.m., New York City time, on the related Calculation Date such rate is not
published in H.15(519), then the CD
(i) Rate will be the rate on that Interest Determination Date for negotiable
certificates of deposit of the Index Maturity designated on the face
hereof as published in H.15 Daily Update under the heading "CDs (secondary
market)";
(ii) if such rate is not published in H.15 (519) or H.15 Daily Update by 3:00
p.m., New York City time, on the Calculation Date in the manner described
in clause (i) above, then the Calculation Agent will determine the CD Rate
to be the arithmetic mean of the secondary market offered rates as of
10:00 a.m., New York City time, on that Interest Determination Date,
quoted by three leading non-bank dealers in negotiable U.S. dollar
certificates of deposit in New York City for negotiable certificates of
deposit in a denomination of $5,000,000 of major United States
money-center banks of the highest credit standing with a remaining
maturity closest to the Index Maturity designated on the face hereof. The
Calculation Agent, after consultation with the Issuer, will select the
three dealers referred to in the immediately preceding sentence; and
A-2-10
<Page>
(iii) if fewer than three dealers are quoting as mentioned in clause (ii) above,
the CD Rate will be the CD Rate in effect during the prior interest
period.
DETERMINATION OF COMMERCIAL PAPER RATE. Unless otherwise specified
on the face hereof, if the Base Rate is Commercial Paper Rate, Commercial Paper
Rate means, with respect to any Interest Determination Date, the Money Market
Yield (as defined below) of the rate on that date for commercial paper having
the Index Maturity specified on the face hereof, as published in H.15(519) prior
to 9:00 a.m., New York City time, on the Calculation Date pertaining to that
Interest Determination Date under the heading "Commercial paper --
Nonfinancial." The following procedures will be followed if the Commercial Paper
Rate cannot be determined as described in the immediately preceding sentence:
(i) if such rate is not published in H.15(519) by 9:00 a.m., New York City
time, on the Calculation Date, the Commercial Paper Rate will be the Money
Market Yield of the rate on that Interest Determination Date for
commercial paper having the Index Maturity designated on the face hereof,
as published in H.15 Daily Update under the heading "Commercial paper --
Nonfinancial";
(ii) if such rate is not published in H.15(519) or H.15 Daily Update by 3:00
p.m., New York City time, on the Calculation Date as described in clause
(i) above, then the Calculation Agent will determine the Commercial Paper
Rate to be the Money Market Yield of the arithmetic mean of the offered
rates of three leading dealers of commercial paper in New York City as of
11:00 a.m., New York City time, on that Interest Determination Date for
commercial paper having 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, and the
Calculation Agent, after consultation with the Issuer, will select the
three dealers referred to in this clause (ii); and
(iii) if fewer than three dealers selected by the Calculation Agent are quoting
as described in clause (ii) above, the Commercial Paper Rate will be the
Commercial Paper Rate in effect during the prior interest period.
"H.15(519)" means the publication entitled "Statistical Release
H.15(519), Selected Interest Rates," or any successor publication, published by
the Board of Governors of the Federal Reserve System and available through the
World Wide Web site of the Board of Governors of the Federal Reserve Systems at
http://www.federalreserve.gov/releases/h15/current, or any successor site or
publication.
"H.15 Daily Update" means the daily update of H.15(519), available
through the World Wide Web site of the Board of Governors of the Federal Reserve
Systems at http://www.federalreserve.gov/releases/h15/update, or any successor
site or publication.
"Money Market Yield" means a yield (expressed as a percentage
rounded to the nearest one-hundred thousandth of a percent) calculated in
accordance with the following formula:
A-2-11
<Page>
<Table>
Money Market Yield D x 360
------------- X 100
= 360 - (D x M)
</Table>
where "D" refers to the annual 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 ELEVENTH DISTRICT COST OF FUNDS RATE. Unless
otherwise specified on the face hereof, if the Base Rate is the Eleventh
District Cost of Funds Rate, Eleventh District Cost of Funds Rate means, with
respect to any Interest Determination Date, the rate equal to the monthly
weighted average cost of funds for the calendar month immediately before such
Interest Determination Date, as displayed on Telerate Page 7058 under the
heading "11th District" as of 11:00 A.M., San Francisco time, on such Interest
Determination Date. If the Eleventh District Cost of Funds Rate cannot be
determined as described above, the Eleventh District Cost of Funds Rate shall be
the FHLB Index for the calendar month preceding such Interest Determination
Date. following procedures will apply in determining the Eleventh District Cost
of Funds Rate :
If the Federal Home Loan Bank of San Francisco fails to announce the
cost of funds described above on or before the Interest Determination Date, the
Eleventh District Cost of Funds Rate that takes effect on such Interest Reset
Date will be the same as the rate of interest thereon in the prior interest
period.
DETERMINATION OF FEDERAL FUNDS RATE. Unless otherwise specified on
the face hereof, if the Base Rate is Federal Funds Rate, Federal Funds Rate
means, with respect to any Interest Determination Date, the rate on that date
for Federal Funds as published in H.15(519) under the heading "Federal Funds
(effective)," as such rate is displayed on Telerate Page 120, prior to 11:00
a.m., New York City time, on the Calculation Date pertaining to that Interest
Determination Date under the heading "Federal funds (effective)." The following
procedures will be followed if the Federal Funds Rate cannot be determined as
described in the immediately preceding sentence:
(i) if such rate is not published in H.15(519) by 11:00 a.m., New York City
time, on the Calculation Date, the Federal Funds Rate will be the rate on
that Interest Determination Date, as published in H.15 Daily Update under
the heading "Federal funds (effective)";
(ii) if that rate is not published in either H.15 (519) or H.15 Daily Update by
3:00 p.m., New York City time, on the Calculation Date, then the
Calculation Agent will determine the Federal Funds Rate to be the
arithmetic mean of the rates for the last transaction in overnight Federal
funds arranged by each of three leading brokers of Federal funds
transactions in New York City prior to 11:00 a.m., New York time, on that
Interest Determination Date, and the Calculation Agent, after consultation
with the Issuer, will select the three brokers referred to in this clause
(ii); and
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<Page>
(iii) if fewer than three brokers selected by the Calculation Agent are quoting
as described in clause (ii) above, the Federal Funds Rate will be the
Federal Funds Rate in effect during the prior interest period.
DETERMINATION OF LIBOR. If the Base Rate is LIBOR, LIBOR will be
determined by the Calculation Agent in accordance with the following provisions:
(i) with respect to an Interest Determination Date, LIBOR will be: (a) if the
Designated LIBOR Page is LIBOR Telerate as specified on the face hereof,
the rate for deposits in Index Currency having the Index Maturity,
commencing on the second London Business Day immediately following that
Interest Determination Date, as that rate appears on the Designated LIBOR
Page as of 11:00 a.m., London time, on that Interest Determination Date or
(b) if the Designated LIBOR Page is LIBOR Reuters as specified on the face
hereof, the arithmetic mean of the offered rates for deposits in Index
Currency having the Index Maturity, commencing on the second London
Business Day immediately following such Interest Determination Date, which
appear on the Designated LIBOR Page (or such other LIBOR page specified on
the face hereof) as of 11:00 a.m., London time, on the Interest
Determination Date, if at least two such offer rates appear on such
Reuters Screen LIBOR Page. If neither LIBOR Reuters nor LIBOR Telerate is
specified as the Designated LIBOR Page, LIBOR Telerate will be used. If
the Designated LIBOR Page by its terms provides only for a single rate,
that single rate will be used regardless of the foregoing provisions
requiring more than one rate. In the case where (a) above applies, if no
rate appears, or in the case where (b) above applies, if fewer than two
offered rates appear, LIBOR in respect of the Interest Determination Date
will be determined as if the parties had specified the rate in (ii) below;
(ii) with respect to an Interest Determination Date on which this provision
applies, LIBOR will be determined on the basis of the offered rates at
which deposits in the Index Currency are offered by four major banks in
the London interbank market selected by the Calculation Agent (after
consultation with the Issuer) at approximately 11:00 a.m., London time, on
that Interest Determination Date to prime banks in the London interbank
market having the Index Maturity commencing on the second London Business
Day immediately following that Interest Determination Date and in a
principal amount equal to an amount of not less than U.S. $1 million 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
such banks to provide a quotation of its rate. If at least two such
quotations are provided, LIBOR in respect of that Interest Determination
Date will be the arithmetic mean of such quotations. If fewer than two
quotations are provided, LIBOR in respect of that Interest Determination
Date will be the arithmetic mean of the rates quoted by three major money
center banks the applicable financial center selected by the Calculation
Agent (after consultation with the Issuer) at approximately 11:00 a.m.,
New York City time, on that Interest Determination Date for loans in Index
Currency to leading European banks, having the Index Maturity commencing
on the second London Business Day immediately following that Interest
Determination Date and in a principal amount equal to an amount of not
less than U.S. $1 million that is representative for a single transaction
in such market at such time; PROVIDED, HOWEVER, that if the banks
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<Page>
selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, LIBOR for the applicable period will be the
same as LIBOR for the immediately prior interest period.
Unless otherwise specified on the face hereof:
"London Business Day" means (i) if the Index Currency is other than
the euro, any day on which dealings in deposits in the Index Currency are
transacted in the London interbank market; or (ii) if the Index Currency is the
euro, any day on which the Trans-European Automated Real-Time Gross Settlement
Express Transfer (TARGET) System is open;
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is designated
on the face hereof, the display on the Reuters Monitor Money Rates Service, or a
successor nominated as the information vendor, for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency, or (b)
if "LIBOR Telerate" is designated on the face hereof, the display on the Bridge
Telerate, Inc., or a successor nominated as the information vendor, for the
purpose of displaying the London interbank rates of major banks for the
applicable Index Currency.
"Index Currency" means the currency, including composite currencies,
specified on the face hereof as the currency for which LIBOR shall be
calculated. If no Index Currency is specified on the face hereof, the Index
Currency will be U.S. Dollars.
DETERMINATION OF TREASURY RATE. Unless otherwise specified on the
face hereof, if the Base Rate is Treasury Rate, Treasury Rate means, with
respect to any Interest Determination Date, the rate set at the most recent
auction of direct obligations of the United States ("Treasury bills") having the
Index Maturity designated on the face hereof, as that rate appears on either
Telerate Page 56 or Telerate Page 57 (or any pages that may replace such pages)
under the heading "INVESTMENT RATE." The following procedures will be followed
if the Treasury Rate cannot be determined as described in the immediately
preceding sentence:
(i) if such rate is not published on Telerate Page 56 or Telerate Page 57 by
9:00 a.m., New York City time, on the Calculation Date, the Treasury Rate
will be the auction average rate, expressed as a Bond Equivalent Yield, as
otherwise announced by the United States Department of the Treasury, for
the Interest Determination Date;
(ii) if the results of the most recent auction of Treasury bills having the
Index Maturity designated on the face hereof are not published or
announced as described in clause (i) above by 3:00 p.m., New York City
time, on the Calculation Date, or if no auction is held in a particular
week, the Treasury Rate will be the Bond Equivalent Yield of the rate set
forth in H.15(519) for the Interest Determination Date opposite the Index
Maturity under the heading "U.S. government securities/Treasury
bills/Secondary market";
(iii) if such rate is not published in H.15(519) by 3:00 p.m., New York City
time, on the Calculation Date as described in clause (ii) above, the
Treasury Rate will be the rate set forth in H.15 Daily Update, or another
recognized electronic source used for the purpose of displaying that rate,
for the Interest Determination Date in respect of the Index
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Maturity under the heading "U.S. government securities/Treasury
bills/Secondary market";
(iv) if the above rate is not published in H.15(519), H.15 Daily Update or
another recognized source by 3:00 p.m., New York City time, on the
Calculation Date as described in clauses (ii) and (iii) above, then the
Calculation Agent will determine the Treasury Rate to be a yield to
maturity, expressed as a Bond Equivalent Yield, of the arithmetic mean of
the secondary market bid rates, as of approximately 3:30 p.m., New York
City time, on the Interest Determination Date of three leading primary
United States government securities dealers selected by the Calculation
Agent after consultation with the Issuer for the issue of Treasury bills
with a remaining maturity closest to the Index Maturity specified on the
face hereof; and
(v) if fewer than three dealers selected by the Calculation Agent are quoting
as described in clause (iv) above, the Treasury Rate will be the Treasury
Rate in effect during the prior interest period.
"Bond Equivalent Yield" means a yield (expressed as a percentage
rounded to the nearest one hundred thousandth of a percent) calculated in
accordance with the following formula:
<Table>
Bond Equivalent Yield D x N
------------- X 100
= 360 - (D x M)
</Table>
where "D" refers to the per annum rate for Treasury bills, quoted on
a bank discount basis and expressed as a decimal;
"N" refers to 365 or 366, as the case may be; and
"M" refers to the actual number of days in the interest period for
which interest is being calculated.
"Telerate Page 56," "Telerate Page 57" and "Telerate Page 120" mean
the displays designated on Bridge Telerate, Inc. as Page 56, Page 57 or Page
120, or any page that replaces either Page 56, Page 57 or Page 120 on that
service, or another service that is nominated as the information vendor, for the
purpose of displaying Treasury bill or federal funds auction rates.
DETERMINATION OF PRIME RATE. Unless otherwise specified on the face
hereof, if the Base Rate is Prime Rate, Prime Rate means, with respect to any
Interest Determination Date, the prime rate or base lending rate on that date,
as published in H.15(519) by 3:00 p.m., New York City time, on the Calculation
Date pertaining to the Interest Determination Date under the heading "Bank prime
loan." The following procedures will be followed if the Prime Rate cannot be
determined as described in the immediately preceding sentence:
(i) if such rate is not published in H.15(519) prior to 3:00 p.m., New York
City time, on the Calculation Date, then the Prime Rate will be the rate
on the Interest Determination Date as published in H.15 Daily Update
opposite the heading "Bank prime loan";
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<Page>
(ii) if such rate is not published in either H.15(519) or H.15 Daily Update by
3:00 p.m., New York City time, on the Calculation Date as described in
clause (i) above, then the Calculation Agent will determine the Prime Rate
to be the arithmetic mean of the rates of interest publicly announced by
each bank that appears on the Reuters Screen USPRIME1 as that bank's prime
rate or base lending rate as in effect for that Interest Determination
Date;
(iii) if fewer than four rates appear on the Reuters Screen USPRIME1 on the
Interest Determination Date, then the Prime Rate will be the arithmetic
mean of the prime rates or base lending 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 the Interest Determination Date by four major banks
in The City of New York selected by the Calculation Agent from a list
approved by the Issuer;
(iv) if fewer than two rates appear on the Reuters Screen USPRIME1 on the
Interest Determination Date, then the Prime Rate will be the arithmetic
mean of the prime rates or base lending rates furnished by the appropriate
number of substitute U.S. banks or trust companies in The City of New York
that have a total equity capital of U.S. $500,000,000 or more and are
subject to supervision or examination by federal or state authority, as
selected by the Calculation Agent from a list approved by the Issuer; and
(v) if the banks selected by the Calculation Agent are not quoting as
described in clauses (iii) and (iv) above, the Prime Rate will be the
Prime Rate in effect during the prior interest period.
"Reuters Screen USPRIME1 Page" means the display on the Reuters
Monitor Money Rates Service on the page designated as "USPRIME1," or any other
page that replaces that page on that service for the purpose of displaying prime
rates or base lending rates of major United States banks.
DETERMINATION OF CMT RATE. Unless otherwise specified on the face
hereof, if the Base Rate is the CMT Rate, CMT Rate means, with respect to any
Interest Determination Date, the rate displayed on the Designated CMT Telerate
Page by 3:00 p.m., New York City time, on the Calculation Date pertaining to the
Interest Determination Date under the heading (or any successor heading)
"Treasury Constant Maturities -- Federal Reserve Board Release H.15 -- Mondays
Approximately 3:45 p.m.," under the column for the Index Maturity as specified
on the face hereof (1) if the Designated CMT Telerate Page is 7051, such
Interest Determination Date or (2) if the Designated CMT Telerate Page is 7052,
the week, or the month, as applicable, ended immediately preceding the week in
which the related Interest Determination Date occurs. The following procedures
will be used if the CMT Rate cannot be determined as described in the
immediately preceding sentence:
(i) 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, then
the CMT Rate will be the Treasury constant maturity rate for the Index
Maturity for the Interest Determination Date, as published in H.15(519);
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(ii) if such rate is no longer published in H.15(519), or if not displayed by
3:00 p.m., New York City time, on the Calculation Date, then the CMT Rate
will be the Treasury constant maturity rate, or other United States
Treasury rate, for the Index Maturity for the Interest Determination 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 H.15(519);
(iii) if that information described in clause (ii) above is no longer provided
by 3:00 p.m., New York City time, on the Calculation Date, then the
Calculation Agent will determine the CMT Rate to be a yield to maturity
based on the arithmetic mean of the secondary market offered rates as of
approximately 3:30 p.m., New York City time, on the Interest Determination
Date reported, according to their written records, by three leading
primary United States government securities dealers in The City of New
York selected by the Calculation Agent after consultation with the Issuer.
The Calculation Agent will select five leading primary United States
government securities dealers and will eliminate the highest and lowest
quotations or, in the event of equality, one of the highest and lowest
quotations, for the most recently issued direct non-callable fixed rate
obligations of the United States ("Treasury Notes") with an original
maturity of approximately the Index Maturity and a remaining term to
maturity of not less than the Index Maturity minus one year;
(iv) if the Calculation Agent cannot obtain three Treasury Note quotations as
described in clause (iii) above, the Calculation Agent will determine the
CMT Rate to be a yield to maturity based on the arithmetic mean of the
secondary market offered rates as of approximately 3:30 p.m., New York
City time, on the Interest Determination Date of three leading primary
United States government securities dealers in New York City, selected
using the same method described in clause (iii) above, for the most
recently issued direct non-callable fixed rate obligations of the United
States with an original maturity of the number of years that is the next
highest to the Index Maturity and a remaining term to maturity closest to
the Index Maturity and in an amount of at least U.S. $100 million;
(v) if three or four (but not five) reference dealers are quoting as described
in clauses (iii) and (iv) above, then the CMT Rate will be based on the
arithmetic mean of the offered rates obtained and neither the highest nor
the lowest of those quotations will be eliminated; and
(vi) if fewer than three leading primary United States government securities
dealers selected by the Calculation Agent are quoting as described in
clauses (iii) and (iv) above, the CMT Rate will be the CMT Rate in effect
during the prior interest period.
"Designated CMT Telerate Page" means the display on the Bridge
Telerate, Inc., or any successor service, on the page specified on the face
hereof, or any other page that replaces that page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519). If
no page is specified, page 7052 for the most recent week.
OTHER BASE RATES. In addition to the Base Rates specified in this
Section, the Issuer may elect to designate such Other Base Rates indicated on
the face hereof based on such
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other interest rate formula or formulas indicated on the face hereof, which may
include a combination of one or more of the Base Rates indicated above.
RESET OF SPREAD AND SPREAD MULTIPLIER. If the Issuer has the option
with respect to this Note to reset the Spread and/or Spread Multiplier, such
option will be indicated on the face hereof, together with (i) the date or dates
on which such Spread and/or Spread Multiplier may be reset (each an "Optional
Reset Date") and (ii) the basis or formula, if any, for such resetting. Unless
otherwise specified on the face hereof, the Issuer may exercise such option by
notifying the Trustee of such exercise at least 45 but not more than 60 days
(unless otherwise specified on the face hereof) prior to an Optional Reset Date.
Not later than 40 days (unless otherwise specified on the face hereof) prior to
such Optional Reset Date, the Trustee will mail to the Holder hereof a notice
(the "Reset Notice"), first class, postage prepaid, setting forth (i) the
election of the Issuer to reset the Spread and/or Spread Multiplier, (ii) such
new Spread and/or Spread Multiplier, and (iii) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or, if there is no such next Optional Reset Date, to the 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 days (unless
otherwise specified on the face hereof) prior to an Optional Reset Date, the
Issuer may, at its option, revoke the Spread and/or Spread Multiplier provided
for in the Reset Notice and establish a higher Spread and/or Spread Multiplier
for the Subsequent Interest Period commencing on such Optional Reset Date by
mailing or causing the Trustee to mail notice of such higher Spread and/or
Spread Multiplier first class, postage prepaid, to the Holder hereof. Such
notice shall be irrevocable. If the Spread and/or Spread Multiplier is reset on
an Optional Reset Date this Note will bear such higher Spread and/or Spread
Multiplier.
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If the Issuer elects to reset the Spread and/or Spread Multiplier of
this Note, the Holder hereof will have the option to elect repayment of this
Note by the Issuer on any Optional Reset Date at a price equal to the principal
amount hereof plus any accrued interest to such Optional Reset Date. In order
for this Note to be so repaid on an Optional Reset Date, the Holder hereof must
follow the procedures set forth below for optional repurchase, except that the
period for delivery of this Note or notification to the Trustee shall be at
least 25 but not more than 35 days (unless otherwise specified on the face
hereof) prior to such Optional Reset Date and except that a Holder who has
tendered this Note for repayment pursuant to a Reset Notice may, by written
notice to the Trustee, revoke any such tender for repayment until the close of
business on the tenth day prior to such Optional Reset Date.
INTEREST RATE IN EFFECT. The Calculation Agent will, upon the
request of the Holder of this Note, provide to such Holder the interest rate
hereon 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.
FORM OF NOTES
INDEXED NOTES. This Note may be issued with the principal amount
payable at Maturity and/or with interest payable hereon on an Interest Payment
Date to be determined by reference to the price or prices of currencies,
currency units, commodities, stock, other securities, interest or other notes,
financial or non-financial indices or other factors (each an "Indexed Note"), as
shall be indicated above under "Other Terms." Specific information pertaining to
the method for determining the principal amount payable at Maturity or the
amount of interest to be paid on an Interest Payment Date with reference to the
specified index shall be included above under "Other Terms."
For the purposes of determining whether Holders of the requisite
principal amount of Indexed Notes outstanding have made a demand or given a
notice or waiver or taken any other action, the outstanding principal amount of
Indexed Notes will be deemed to be the face amount of the Indexed Notes. In the
event of an acceleration of the maturity of the Indexed Note, the principal
amount payable to the Holder of an Indexed Note upon acceleration will be the
principal amount determined by reference to the formula by which the principal
amount of the Indexed Note would be determined on the Maturity Date, as if the
date of acceleration were the Maturity Date.
DUAL CURRENCY NOTES. This Note may be issued as a Note in which the
Issuer has a one-time option to pay the principal, premium, if any, and
interest, if any, on this Note in an optional currency specified on the face
hereof under "Other Terms" that is a different currency from the Specified
Currency of this Note ("Dual Currency Notes"). The Issuer shall provide the
Holders two Business Days written notice of its exercise of such option, which
such exercise shall be irrevocable. Specific information pertaining to Dual
Currency Notes shall be included above under "Other Terms," and shall include,
without limitation, Specified Currency for the dual currency note:
o the Specified Currency;
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o the Optional Payment Currency;
o the Designated Exchange Rate;
o the Option Election Date; and
o the Interest Payment Dates for Dual Currency Notes.
The amounts payable and the method for calculating these amounts
with respect to Dual Currency Notes and any additional terms and conditions of
any issue of Dual Currency Notes will be specified on the face hereof.
RENEWABLE NOTES. This Note may be issued as a Note in which the
Maturity will be automatically extended for a twelve month period on each
Maturity unless the Holder elects to terminate the automatic extension
("Renewable Notes"). The Holder may terminate the automatic extension by
notifying the Trustee within the time frame set forth on the face hereof. The
Holder may choose to maintain the automatic extension provision for a portion of
the Renewable Note so long as that portion equals at least $100,000 (or its
foreign currency equivalent). The Maturity of the Renewable Notes cannot be
extended beyond the final Maturity Date set forth on the face hereof. If the
Holder elects to terminate the automatic extension of any portion of the
Renewable Note, the Holder will receive payment of principal on that portion on
an Interest Payment Date falling approximately six months after the date on
which the Renewable Note was scheduled to be extended.
The Holder may revoke its election to terminate the automatic
extension or any portion of the Renewable Note if such portion equals at least
$100,000 (or its foreign currency equivalent). To revoke its election to
terminate, the Holder must notify the Trustee prior to the fifteenth calendar
day before the portion is scheduled to mature. An election to terminate the
automatic extension of a Renewable Note will be binding on any subsequent Holder
unless properly revoked.
The Issuer may elect to redeem the total amount or portion of a
Renewable Note at a redemption price of 100% of its principal amount plus
accrued interest. If the Issuer decides to redeem a Renewable Note, the Issuer
must notify the Holder by first class mail at least 30 but not more than 60 days
prior to the redemption date.
The Renewable Notes will bear interest at a specified rate that will
be based on a based rate and any Spread and/or Spread Multiplier.
EXTENDIBLE NOTES. This Note may be issued as a Note in which the
Issuer has the option to extend the Notes' stated Maturity Date for one or more
whole years up to a date set forth on the face hereof ("Extendible Notes"). In
the event the Issuer elects to extend the Extendible Notes, the Issuer must
notify the Trustee no less than 45 nor more than 60 calendar days prior to the
Extendible Notes' original stated Maturity Date. The Trustee will notify the
Holder of the Issuers extension of the Maturity by first class mail. The notice
must specify the
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Extendible Notes' new Maturity Date, the interest rate applicable to the
extension period and any applicable redemption provisions.
The interest rate may be increased for the extension period if the
Issuer notifies the Trustee prior to 10:00 a.m., New York City time, on the
twentieth calendar day before the extended Extendible Notes are scheduled to
mature. The Trustee will send notice to the Holders in a manner agreed upon by
the Trustee and the Issuer. This increased interest rate may not be revoked.
In the event the Issuer extends the period Maturity of the
Extendible Notes, the Holder has the option to require the Issuer to repay such
Extendible Notes on the Maturity Date then in effect at a price equal to the
principal amount of the Extendible Notes plus any accrued interest to such date.
In order to exercise this option the Holder must notify the Trustee no less than
25 nor more than 60 calendar days prior to the date the Extendible Notes are
scheduled to Mature. Such notice may be made by delivering to the Trustee the
Extendible Notes with the attached "Option to Elect Repayment" form completed,
or a letter from a broker/dealer, bank or trust company notifying the Trustee of
the Holder's intent to redeem its Extendible Notes and guaranteeing that the
Extendible Notes and the attached "Option to Elect Repayment" form will be
delivered no later than five Business Days after the date set for redemption.
The Holder may revoke its election to be repaid at any time before 3:00 p.m.,
New York City time, on the twentieth calendar day prior to the date the
Extendible Notes are scheduled to mature.
ORIGINAL ISSUE DISCOUNT NOTES. This Note may be issued as a Note in
which the issue price (set forth on the face hereof) is less than 100% of the
principal amount thereof, (i.e. par) by more than a percentage equal to the
product of 0.25% and the number of full years to the Maturity Date ("Original
Issue Discount Notes"). Original Issue Discount Notes may not bear any interest
currently or may bear interest at a rate that is below market rates at the time
of the issuance. The difference between the issue price of an Original Issue
Discount Note and par is referred to as the "Discount." In the event of
redemption, repayment or acceleration of Maturity of an Original Issue Discount
Note, the amount payable to the Holder will be equal to the sum of:
o the issue price (increased by any accruals of Discount)
and, in the event of any redemption of the applicable Original Issue
Discount Note, if applicable, multiplied by the initial redemption
percentage (as adjusted, if applicable); and
o any unpaid interest accrued on the Original Issue
Discount Note to the date of the redemption, repayment or
acceleration of the Maturity, as the case may be.
For purposes of determining the amount of Discount that has accrued
as of any date on which a redemption, repayment or acceleration of Maturity
occurs for an Original Issue Discount Note, a Discount will be accrued using a
constant yield method. The constant yield will be calculated using a 30-day
month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates for the applicable Original Issue Discount Note (with
ratable accruals
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within a compounding period), a coupon rate equal to the initial coupon rate
applicable to the Original Issue Discount Note and an assumption that the
Maturity of an Original Issue Discount Note will not be accelerated. If the
period from the date of issue to the first Interest Payment Date for an Original
Issue Discount Note (the "Initial Period") is shorter than the compounding
period for the Original Issue Discount Note, a proportionate amount of the yield
for an entire compounding period will be accrued. If the Initial Period is
longer than the then the compounding, then the period will be divided into a
regular compounding period and a short with the short period being treated as
provided in the preceding sentence. The accrual of the applicable Discount may
differ from the accrual of original issue discount for purposes of the Internal
Revenue Code of 1986 (the "Code"), as amended, certain Original Issue Discount
Notes may not be treated as having original issue discount within the meaning of
the Code, and notes other than Original Issue Discount Notes may be treated as
issued with original issue discount for federal income tax purposes.
GENERAL INFORMATION REGARDING THE NOTES
CERTAIN DEFINITIONS. "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which
commercial banks are authorized or required by law, regulation or executive
order to close in The City of New York; PROVIDED, HOWEVER, that if the Specified
Currency is other than United States dollars, such day must not be a day on
which commercial banks are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of
the country issuing the Specified Currency (or, if the Specified Currency is
Euro, such day must be a day on which the Trans-European Automated Real-Time
Gross Settlement Express Transfer (TARGET) System is open). "Principal Financial
Center" means the capital city of the country issuing the Specified Currency,
except that with respect to United States dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Italian lire, South African rand and
Swiss francs, the "Principal Financial Center" shall be The City of New York,
Sydney and Melbourne, Toronto, Frankfurt, Amsterdam, Milan, Johannesburg and
Zurich, respectively.
"Calculation Date" means, with respect to any Interest Determination
Date, the date on or before which the Calculation Agent is to calculate an
interest rate for a Note. Unless otherwise specified on the face hereof, the
Calculation Date pertaining to an Interest Determination Date for a Note will be
the first to occur of (i) the tenth calendar day after that Interest
Determination Date or, if that day is not a Business Day, the next succeeding
Business Day; or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date, Redemption Date or Repurchase Date, of that Note, as the
case may be.
"Index Maturity" means the period of time designated as the
representative maturity of the certificates of deposit, the commercial paper,
the Index Currency, the Treasury bills or other instrument or obligation,
respectively, by reference to transactions in which the CD Rate, the Commercial
Paper Rate, LIBOR, the Treasury Rate and the CMT Rate, respectively, are to be
calculated, as set forth on the face hereof.
"Interest Determination Date" means the date as of which the
interest rate for a Note is to be calculated, to be effective as of the
following Interest Reset Date and calculated on
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the related Calculation Date. However, LIBOR will be calculated on the Interest
Determination Date. Unless otherwise specified on the face hereof (i) the
Interest Determination Date pertaining to an Interest Reset Date for a CD Rate
Note, Commercial Paper Rate Note, Federal Funds Rate Note, Prime Rate Note or
CMT Rate Note will be the second Business Day preceding that Interest Reset
Date; (ii) the Interest Determination Date pertaining to an Interest Reset Date
for a LIBOR Note will be the second London Business Day preceding that Interest
Reset Date; and (iii) the Interest Determination Date pertaining to an Interest
Reset Date for a Treasury Rate Note will be the day of the week during which
that Interest Reset Date falls on which Treasury bills of the Index Maturity
designated on the face hereof are auctioned, such Treasury bills being 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 or may be held
on the preceding Friday; PROVIDED that if, as the result of a legal holiday, an
auction is held on the preceding Friday, that Friday will be the Interest
Determination Date pertaining to the Interest Reset Date occurring in the
following week.
REDEMPTION BY THE ISSUER. Unless one or more Redemption Dates is
specified on the face hereof, this Note shall not be redeemable at the option of
the Issuer before the Maturity Date specified on the face hereof. If one or more
Redemption Dates is so specified, this Note is subject to redemption on any such
date at the option of the Issuer, upon notice by first-class mail, mailed not
less than 30 days nor more than 60 days (unless otherwise specified on the face
hereof) prior to the applicable Redemption Date specified in such notice, at the
applicable Redemption Price specified on the face hereof (expressed as a
percentage of the principal amount of this Note), together in the case of any
such redemption with accrued interest to the Redemption Date. Unless otherwise
specified on the face hereof, the Issuer may elect to redeem less than the
entire principal amount hereof.
REPURCHASE AT THE OPTION OF THE HOLDER. Unless one or more
Repurchase Dates at the option of the Holder is specified on the face hereof,
this Note shall not be repayable at the option of the Holder on any date prior
to the Maturity Date specified on the face hereof. If one or more Repurchase
Dates is so specified, this Note is subject to repurchase on any such date at
the option of the Holder at the applicable Repurchase Price specified on the
face hereof (expressed as a percentage of the principal amount of this Note),
together in the case of any such repayment with accrued interest to the
Repurchase Date, but interest installments whose Stated Maturity is prior to the
Repurchase Date will be payable to the Holder of this Note, or one or more
Predecessor Notes, of record at the close of business on the relevant Regular
Record Dates referred to on the face hereof. For this Note to be repaid at the
option of the Holder, the Trustee must receive at the principal office of its
Corporate Trust Department in Chicago, Illinois, at least 30 days but not more
than 60 days (unless otherwise specified on the face hereof) prior to the
Repurchase Date on which this Note is to be repaid:
(i) appropriate wire instructions; and
(ii) either (a) the Note with the form entitled "Option to Elect
Repayment" on the reverse of the Note duly completed, or (b) a
telegram, telex, facsimile transmission or letter from a
member of a national securities exchange or the National
Association of Securities Dealers, Inc., or a commercial bank
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or trust company in the United States setting forth:
(1) the name of the holder of the Note;
(2) the principal amount of the Note;
(3) the portion of the principal amount of the Note to be
repurchased;
(4) the certificate number or a description of the tenor and
terms of the Note;
(5) a statement that the option to elect repurchase is being
exercised; and
(6) [insert if certificated note][a guarantee that the Note
to be repaid with the form entitled "Option to Elect
Repayment" on the reverse of the Note duly completed
will be received by the Trustee within five Business
Days. The Trustee must actually receive the Note and
form duly completed by the fifth Business Day.]
[insert if global security] [The above instructions shall be
delivered to the Depositary who will forward them to the Trustee.]
Exercise of the repurchase option by the Holder of a Note shall be
irrevocable. The Holder of a Note may exercise the repurchase option for less
than the entire principal amount of the Note provided that the principal amount
of the Note remaining outstanding after repurchase is an Authorized
Denomination. No transfer or exchange of any Note will be permitted after
exercise of a repurchase option. If a Note is to be repurchased in part, no
transfer or exchange of the portion of the Note to be repurchased will be
permitted after exercise of a repurchase option. All questions as to the
validity, eligibility, including time of receipt, and acceptance of any note for
repurchase will be determined by the Issuer and its determination will be final,
binding and non-appealable.
[Insert if the Security is to be a Certificated Security - In the
event of redemption or repayment of this Note in part only, a new Note or Notes
of this series and of like tenor and for a principal amount equal to the
unredeemed or unrepaid portion will be delivered to the registered Holder upon
the cancellation hereof.]
[Insert if the Security is to be a Global Security - In the event of
redemption or repayment of this Note in part only, the Principal Amount shall be
reduced.]
CALCULATION OF EXCHANGE RATES. If this is a Foreign Currency Note to
be paid in United States dollars, the United States dollar amount to be received
in respect hereof will be based upon the exchange rate as determined by the
Exchange Rate Agent based on the most favorable firm bid quotation for United
States dollars received by such Exchange Rate Agent at approximately 11:00 a.m.,
New York City time, on the second Business Day preceding the
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applicable payment date from three recognized foreign exchange dealers in The
City of New York selected by the Exchange Rate Agent and approved by the Issuer
(one of which may be the Exchange Rate Agent) for the purchase by the quoting
dealer, for settlement on such payment date, of the aggregate amount of the
Specified Currency payable on such payment date in respect of this Note. If
three quoting dealers are not available then two dealers will be used. If no
such bid quotations are available, payments will be made in the Specified
Currency, unless such Specified Currency is unavailable due to the imposition of
exchange controls or to other circumstances beyond the Issuer's control, in
which case the Issuer will be entitled to make payments in respect hereof in
United States dollars as provided in the manner set forth below. All currency
exchange costs will be borne by the Holder hereof by deductions from such
payments. The determination of the exchange rate pursuant to the provisions of
this Section is referred to herein as the "Market Exchange Rate."
PERCENTAGES AND DECIMALS. Except as otherwise specified on the face
hereof, all percentages and decimals resulting from any calculation of interest
on Notes will be rounded, if necessary, to the nearest one-hundred thousandth of
a percentage point, with five one-millionths of a percentage point rounded
upwards. For example, 9.876545% (or .09876545) will be rounded to 9.87655% (or
.0987655) and 9.876544% (or .09876544) will be rounded to 9.87654% (or
.0987654). All dollar amounts used in or resulting from any such calculation
will be rounded to the nearest cent (with one-half cent being rounded upwards).
PAYMENTS IN SPECIFIED CURRENCIES. If a Holder is to receive payments
in a Specified Currency other than United States dollars as described on the
face hereof, payments of principal of (and premium, if any) and interest will be
paid in immediately available funds by wire transfer to an account maintained by
the Holder with a bank designated by the Holder (which in the case of Global
Securities will be the Depositary or its nominee) on or prior to the Regular
Record Date or at least 15 days prior to Maturity, as the case may be, in the
case of Certificated Securities or, in the case of Global Securities, in the
manner specified on the face hereof in the third paragraph thereof following the
summary of terms, provided that such bank has the appropriate facilities for
such a payment in the Specified Currency, PROVIDED, HOWEVER, that with respect
to payments of principal and premium, if any, and interest at Maturity this Note
is presented to the Trustee in time for the Trustee to make such payment in
accordance with its normal procedures, which shall require presentation no later
than two Business Days prior to Maturity in order to ensure the availability of
immediately available funds in the Specified Currency at Maturity.
If payment on this Note is required to be made in a Specified
Currency other than United States dollars and such currency is unavailable in
the good faith judgment of the Issuer due to the imposition of exchange controls
or to other circumstances beyond the Issuer's control, or is no longer used by
the government of the country issuing such currency or for the settlement of
transactions by public institutions of or within the international banking
community, then all payments with respect to this Note shall be made in United
States dollars until such currency is again available or so used. The amount so
payable on any date in such Specified Currency shall be converted into United
States dollars at a rate determined by the Exchange Rate Agent on the basis of
the Market Exchange Rate on the second Business Day prior to such payment, or,
if the
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Market Exchange Rate is not then available, the most recently available Market
Exchange Rate or as otherwise determined in good faith by the Issuer if the
foregoing is impracticable.
If this is a Foreign Currency Note, in the event of an official
redenomination of such foreign currency (including, without limitation, an
official redenomination of a foreign currency that is a composite currency) the
obligations of the Issuer with respect to payments on this Note denominated in
such currency shall, in all cases, be deemed immediately following such
redenomination to provide for the payment of that amount of redenominated
currency representing the amount of such obligations immediately before such
redenomination. No adjustment will be made to any amount payable under this Note
as a result of (a) any change in the value of a foreign currency relative to any
other currency due solely to fluctuations in exchange rates or (b) any
redenomination of any component currency of any composite currency (unless such
composite currency is itself officially redenominated).
ACCELERATION UPON AN EVENT OF DEFAULT. If an Event of Default with
respect to Notes of this series shall occur and be continuing, the Principal
Amount of the Notes of this series may be declared due and payable in the manner
and with the effect provided in the Indenture. Unless otherwise specified on the
face hereof, if any Original Issue Discount Note (as defined below) is redeemed
or repurchased by the Issuer or repurchased at the option of the Holder, each as
described above, or if the principal of any Original Issue Discount Note is
declared to be due and payable immediately pursuant to this paragraph, the
amount of principal due and payable with respect to this Note shall be limited
to the sum of the aggregate principal amount of this Note multiplied by the
Issue Price (expressed as a percentage of the aggregate principal amount) plus
the original issue discount accrued from the date of issue to the date of
redemption, repayment or declaration, as applicable, which accrual shall be
calculated using the "interest method" (computed in accordance with generally
accepted accounting principles) in effect on the date of redemption, repurchase
or declaration. Unless otherwise specified on the face hereof, an Original Issue
Discount Note is a Note which has a stated redemption price at maturity that
exceeds its Issue Price by at least 0.25% of the stated redemption price at
maturity, multiplied by the number of full years from the Original Issue Date to
the Maturity Date for this Note.
MODIFICATION OF RIGHTS UNDER INDENTURE. The Indenture contains
provisions permitting the Issuer and the Trustee, with the consent of the
Holders of not less than a majority of the aggregate principal amount of the
Securities at the time outstanding of all series to be affected (voting as one
class), evidenced as provided in the Indenture, 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 series;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Security so affected, (i) change the Stated
Maturity of the principal of (or premium, if any, on) or any installment of
principal of or interest on, any Security, or reduce the principal amount
thereof or the rate or amount of interest thereon, or adversely affect any right
of repayment at the option of the Holder of any Security, or change any Place of
Payment where, or the currency or currencies, currency unit or units or
composite currency or currencies in which, any Security or any premium or the
interest thereon is payable, or impair the right to institute
A-2-26
<Page>
suit for the enforcement of any such payment on or after the Stated Maturity
thereof, or (ii) reduce the aforesaid percentage of Securities, the Holders of
which are required to consent to any such supplemental indenture, or (iii)
reduce the percentage of Securities, the Holders of which are required to
consent to any waiver of compliance with certain provisions of the Indenture or
any waiver of certain defaults thereunder. It is also provided in the Indenture
that, with respect to certain defaults or Events of Default regarding the
Securities of any series, the Holders of a majority in aggregate principal
amount outstanding of the Securities of such series (or, in the case of certain
defaults or Events of Default, all series of Securities) may on behalf of the
Holders of all the Securities of such series (or all of the Securities, as the
case may be) waive any such past default or Event of Default and its
consequences, prior to any declaration accelerating the maturity of such
Securities, or, subject to certain conditions, may rescind a declaration of
acceleration and its consequences with respect to such Securities. Any such
consent or waiver by the Holder of this security (unless revoked as provided in
the Indenture) shall be conclusive and binding upon such Holder and upon all
future Holders and owners of the security and any securities that may be issued
in exchange or substitution herefor, irrespective of whether or not any notation
thereof is made upon this security or such other securities.
No reference herein to the Indenture and no provision of this
security or of the Indenture shall alter or impair the obligation of the Issuer,
which is absolute and unconditional, to pay the principal of and interest on
this security in the manner, at the respective times, at the rate and in the
coin or currency herein prescribed.
TRANSFERS OF NOTES. As provided in the Indenture and subject to
certain limitations set forth therein and as may be set forth on the face
hereof, the transfer of this Note is registrable in the Security Register, upon
surrender of this Note for registration of transfer at the office or agency of
the Issuer in any place where the principal of (and premium, if any) and
interest on this Note are payable, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Issuer 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 of like tenor, of
Authorized Denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
[Insert if the Security is a Global Security -
GLOBAL NOTES. This Note is a Global Note and shall be exchangeable
for Notes registered in the names of Persons other than the Depositary with
respect to this Global Note or its nominee only if (A) such Depositary notifies
the Issuer that it is unwilling or unable to continue as Depositary for this
Global Note or at any time ceases to be a clearing agency registered as such
under the Securities Exchange Act of 1934, as amended, (B) the Issuer in its
sole discretion executes and delivers to the Trustee a Issuer Order that this
Global Note shall be exchangeable or (C) there shall have occurred and be
continuing an Event of Default with respect to the Notes. If this Global Note is
exchangeable pursuant to the preceding sentence, it shall be exchangeable for
Notes issuable in denominations of $1,000 and any integral multiple of $1,000 in
excess thereof, registered in such names as such Depositary shall direct.]
DENOMINATION. The Notes of this series are issuable, in the case of
Notes
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<Page>
denominated in United States dollars, in denominations of U.S. $1,000 and any
integral multiple of U.S. $1,000 in excess thereof and, in the case of Notes
denominated in a Specified Currency other than United States dollars, in the
authorized denominations set forth on the face hereof (in each case, an
"Authorized Denomination").
EXCHANGE OF NOTES. As provided in the Indenture and subject to
certain limitations set forth therein and as may be set forth on the face
hereof, Notes of this series are exchangeable for a like aggregate principal
amount of Notes of this series of like tenor of a different Authorized
Denomination, as requested by the Holder surrendering the same. No service
charge shall be made for any such registration of transfer or exchange, but the
Issuer may require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
REGISTERED OWNER. Upon due presentment for registration of transfer
of Securities at the office or agency of the Issuer in The Borough of Manhattan,
The City of New York, one or more new Securities of the same series of
authorized denominations in an equal aggregate principal amount will be issued
to the transferee in exchange therefor, subject to the limitations provided in
the Indenture, without charge except for any tax or other governmental charge
imposed in connection therewith.
The Issuer, the Trustee or any authorized agent of the Issuer or the
Trustee may deem and treat the Person in whose name this security is registered
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 subject to the provisions on the face hereof, interest hereon, and for all
other purposes, and neither the Issuer nor the Trustee nor any authorized agent
of the Issuer or the Trustee shall be affected by any notice to the contrary.
GOVERNING LAW. The Indenture and each Security shall be deemed to be
a contract under the laws of the State of New York, and for all purposes shall
be construed in accordance with the laws of such state, except as may otherwise
be required by mandatory provisions of law.
DEFINED TERMS. Capitalized terms used herein which are not otherwise
defined shall have the respective meanings assigned to them in the Indenture and
all indentures supplemental thereto relating to this security.
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<Page>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
<Table>
TEN - as tenants in common UNIF GIFT MIN -___________ Custodian
COM ACT _______
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to
survivorship and not as Minors
tenants
in common Act___________________
(State)
</Table>
Additional abbreviations may also be used though not in the above list.
A-2-29
<Page>
ASSIGNMENT
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 typewrite name and address including postal zip code of
assignee)
________________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
________________________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated: _________________ ________________________________________
_________________ ________________________________________
Notice: The signature(s) on this
Assignment must correspond with the
name(s) as written upon the face of this
Note in every particular, without
alteration or enlargement or any change
whatsoever.
A-2-30
<Page>
[OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Issuer
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at __________
_______________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its
corporate trust office in Chicago, Illinois, currently located at 1 Bank One
Plaza, Suite IL1-0126, Chicago, Illinois 60670-0126, not more than 60 nor less
than 30 calendar days prior to the Repayment Date, this Note with this "Option
to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be
repaid, specify the portion hereof (which shall be increments of U.S. $1,000 or
other integral multiple of an Authorized Denomination) (provided that any
remaining principal amount shall be at least U.S. $1,000 or such other minimum
Authorized Denomination) which the Holder elects to have repaid and specify the
denomination or denominations (which shall be U.S. $1,000 or such other minimum
Authorized Denomination) of the Notes to be issued to the Holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal
Amount
to be Repaid: $ __________ ________________________________________
Notice: The signature(s) on this Option
Dated: ___________________ to Elect Repayment must correspond with
the name(s) as written upon the face of
this Note in every particular, without
alteration or enlargement or any change
whatsoever.](2)
- ----------
(2) This form applies to certificated Notes only.
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