EXHIBIT 4-n
[FORM OF FACE OF SECURITY]
FIXED RATE AMORTIZING SENIOR NOTE
REGISTERED REGISTERED
No. AMZ ___ [PRINCIPAL AMOUNT]
CUSIP:
Unless this certificate is presented by an authorized representative
of The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.(1)
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(1) Applies only if this Note is a Registered Global Security.
MORGAN STANLEY DEAN WITTER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES C
(Fixed Rate Amortizing)
ORIGINAL ISSUE DATE: INITIAL REDEMPTION INTEREST RATE: MATURITY DATE:
DATE:
- ---------------------------------------------------------------------------------------------------------------------
INTEREST ACCRUAL INITIAL REDEMPTION INSTALLMENT OPTIONAL
DATE: PERCENTAGE: PAYMENT DATE(S): REPAYMENT
DATE(S):
- ---------------------------------------------------------------------------------------------------------------------
SPECIFIED CURRENCY: ANNUAL REDEMPTION INTEREST PAYMENT APPLICABILITY OF
PERCENTAGE PERIOD: MODIFIED
REDUCTION: PAYMENT UPON
ACCELERATION
OR REDEMPTION:
- ---------------------------------------------------------------------------------------------------------------------
IF SPECIFIED REDEMPTION NOTICE APPLICABILITY OF If yes, state Issue Price:
CURRENCY PERIOD:(3) ANNUAL
OTHER THAN U.S. INSTALLMENT
DOLLARS, OPTION PAYMENTS:
TO ELECT
PAYMENT IN U.S.
DOLLARS: [YES](2)
- ---------------------------------------------------------------------------------------------------------------------
EXCHANGE RATE TAX REDEMPTION AND NUMBER OF ORIGINAL YIELD TO
AGENT: PAYMENT OF INSTALLMENTS: MATURITY:
ADDITIONAL
AMOUNTS: NO(4)
- ---------------------------------------------------------------------------------------------------------------------
OTHER PROVISIONS: IF YES, STATE INITIAL
OFFERING DATE: N/A
=====================================================================================================================
Morgan Stanley Dean Witter & Co., a Delaware corporation (together with
its successors and assigns, the "Issuer"), for value received, hereby promises
to pay to , or registered assignees, the principal [sum of ](5)
[ amount specified in Schedule A hereto](6), together with interest on any
outstanding portion of such principal sum at the Interest Rate per annum
specified above, from and including the Interest Accrual Date specified above
until payment
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(2) Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of
Representations.
(3) Applicable if other than 30-60 calendar days. If this is a Registered
Global Security, minimum notice period is [20] calendar days [current
DTC limitation].
(4) Default provision is NO. Indicate YES only for certain notes issued
on a global basis if specified in pricing supplement.
(5) Applies if this Note is not issued as part of, or in relation to, a
Unit.
(6) Applies if this Note is issued as part of, or in relation to, a Unit.
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of such principal sum has been made or duly provided for, in the number of
installments (except to the extent redeemed or repaid prior to the maturity)
set forth above (each, an "Installment") of an amount for each $1,000.00, or if
this Note is denominated in a Specified Currency other than U.S. dollars, for
each 1,000 units of such Specified Currency, principal amount as set forth on
Schedule I hereto, on each Installment Payment Date specified above, commencing
with the Installment Payment Date immediately following the Original Issue Date
shown above, and at maturity (or on any redemption or optional repayment date);
provided, however, that, notwithstanding the provisions of Schedule I, if the
Interest Accrual Date occurs between a Record Date, as defined below, and the
next succeeding Installment Payment Date, payments of principal and interest
will commence on the second Installment Payment Date succeeding the Interest
Accrual Date and interest accrued from the Interest Accrual Date to such second
Installment Payment Date plus any principal scheduled to be paid on a prior
Installment Payment Date will be paid to the registered holder of this Note on
the Record Date with respect to such second Installment Payment Date. Each
Installment shall constitute both a payment of interest and a partial repayment
of principal, allocated as set forth in Schedule I hereto. Installments will be
applied first to interest due and payable hereon and then to the reduction of
the unpaid principal amount hereof.
Interest on this Note will accrue from and including the most recent
date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from and including the Interest Accrual
Date, until, but excluding the date the principal hereof has been paid or duly
made available for payment. The interest so payable, and punctually paid or
duly provided for, on any Installment Payment Date (together with the principal
payable on such Installment Payment Date) will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the date 15
calendar days prior to such Installment Payment Date (whether or not a Business
Day (as defined below)) (each such date, a "Record Date"), except if and to the
extent the Issuer shall default in the payment of the Installment due on such
Installment Payment Date, in which case such defaulted Installment shall be
paid to the person in whose name this Note is registered at the close of
business on a subsequent Record Date (which shall be not less than five
Business Days prior to the date of payment of such defaulted Installment)
established by notice given by mail by or on behalf of the Issuer to the
holders of Notes not less than 15 calendar days preceding such subsequent
Record Date; provided, however, that interest payable at maturity, redemption
or optional repayment will be payable to the person to whom the principal
hereof shall be payable. As used herein, "Business Day" means any day, other
than a Saturday or Sunday, (a) that is neither a legal holiday nor a day on
which banking institutions are authorized or required by law or regulation to
close (x) in The City of New York or (y) if this Note is denominated in a
Specified Currency other than U.S. dollars, euro or Australian dollars, in the
principal financial center of the country of the Specified Currency, or (z) if
this Note is denominated in Australian dollars, in Sydney and (b) if this Note
is denominated in euro, that is also a day on which the Trans-European
Automated Real-time Gross Settlement Express Transfer System ("TARGET") is
operating (a "TARGET Settlement Day").
Payment of the principal of this Note, any premium and the interest
due at maturity (or any redemption or repayment date), unless this Note is
denominated in a Specified Currency other than U.S. dollars and is to be paid
in whole or in part in such Specified Currency, will be made in immediately
available funds to the registered holder hereof on such date upon surrender of
this Note
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at the office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New York,
or at such other paying agency as the Issuer may determine in U.S. dollars.
U.S. dollar payments of interest, other than interest due at maturity or on any
date of redemption or repayment, will be made by U.S. dollar check mailed to
the address of the person entitled thereto as such address shall appear in the
Note register. A holder of U.S. $10,000,000 (or the equivalent in a Specified
Currency) or more in aggregate principal amount of Notes having the same
Installment Payment Date, the interest on which is payable in U.S. dollars,
shall be entitled to receive payments of principal and interest, other than
principal and interest due at maturity or on any date of redemption or optional
repayment, by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received by the Paying Agent in writing not
less than 15 calendar days prior to the applicable Installment Payment Date.
If this Note is denominated in a Specified Currency other than U.S.
dollars, and the holder does not elect (in whole or in part) to receive payment
in U.S. dollars pursuant to the next succeeding paragraph, payments of
principal, premium, if any, or interest with regard to this Note will be made
by wire transfer of immediately available funds to an account maintained by the
holder hereof with a bank located outside the United States if appropriate wire
transfer instructions have been received by the Paying Agent in writing [not
less than 15 calendar days prior to the applicable payment date](7) [, with
respect to payments of interest, on or prior to the fifth Business Day after
the applicable Record Date and, with respect to payments of principal or any
premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](8); provided that, if payment
of interest, principal or any premium with regard to this Note is payable in
euro, the account must be a euro account in a country for which the euro is the
lawful currency, provided further, that if such wire transfer instructions are
not received, such payments will be made by check payable in such Specified
Currency mailed to the address of the person entitled thereto as such address
shall appear in the Note register; and provided, further, that payment of the
principal of this Note, any premium and the interest due at maturity (or on any
redemption or repayment date) will be made upon surrender of this Note at the
office or agency referred to in the preceding paragraph.
If so indicated on the face hereof, the holder of this Note, if
denominated in a Specified Currency other than U.S. dollars, may elect to
receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the fifth
Business Day after such Record Date or at least ten Business Days prior to the
Maturity Date or any redemption or repayment date, as the case may be. Such
election shall remain in effect unless such request is revoked by written
notice to the Paying Agent as to all or a portion of payments on this Note at
least five Business Days prior to such Record Date, for payments of interest,
or at least ten calendar days prior to the Maturity Date or any redemption or
repayment date, for payments of principal, as the case may be.
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(7) Applies for a Registered Note that is not in global form.
(8) Applies only for a Registered Global Security.
4
If the holder elects to receive all or a portion of payments of
principal of and any premium and interest on this Note, if denominated in a
Specified Currency other than U.S. dollars, in U.S. dollars, the Exchange Rate
Agent (as defined below) will convert such payments into U.S. dollars. In the
event of such an election, payment in respect of this Note will be based upon
the exchange rate as determined by the Exchange Rate Agent based on the highest
bid quotation in The City of New York 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 (one of which may be the Exchange Rate Agent unless such Exchange Rate
Agent is an affiliate of the Issuer) for the purchase by the quoting dealer of
U.S. dollars for the Specified Currency for settlement on such payment date in
the amount of the Specified Currency payable in the absence of such an election
to such holder and at which the applicable dealer commits to execute a
contract. If such bid quotations are not available, such payment will be made
in the Specified Currency. All currency exchange costs will be borne by the
holder of this Note by deductions from such payments. The "Exchange Rate Agent"
shall be Morgan Stanley & Co. Incorporated, unless otherwise indicated on the
face hereof.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this Note
shall not be entitled to any benefit under the Senior Indenture, as defined on
the reverse hereof, or be valid or obligatory for any purpose.
5
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
DATED: MORGAN STANLEY DEAN WITTER & CO.
By:________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:_________________________________
Authorized Officer
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[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior Global
Medium-Term Notes, Series C, having maturities more than nine months from the
date of issue (the "Notes") of the Issuer. The Notes are issuable under an
Amended and Restated Senior Indenture, dated as of May 1, 1999, between the
Issuer and JPMorgan Chase Bank (formerly known as The Chase Manhattan Bank), as
Trustee (the "Trustee," which term includes any successor trustee under the
Senior Indenture) (as may be amended or further supplemented from time to time,
the "Senior Indenture"), to which Senior Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities of the Issuer, the Trustee
and holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Issuer has appointed JPMorgan Chase Bank at
its corporate trust office in The City of New York as the paying agent (the
"Paying Agent," which term includes any additional or successor Paying Agent
appointed by the Issuer) with respect to the Notes. The terms of individual
Notes may vary with respect to interest rates, interest rate formulas, issue
dates, maturity dates, or otherwise, all as provided in the Senior Indenture.
To the extent not inconsistent herewith, the terms of the Senior Indenture are
hereby incorporated by reference herein.
Unless otherwise indicated on the face hereof, this Note will not be
subject to any sinking fund and, unless otherwise provided on the face hereof
in accordance with the provisions of the following two paragraphs, will not be
redeemable or subject to repayment at the option of the holder prior to
maturity.
If so indicated on the face hereof, this Note may be redeemed in whole
or in part at the option of the Issuer on or after the Initial Redemption Date
specified on the face hereof on the terms set forth on the face hereof,
together with interest accrued and unpaid hereon to the date of redemption. If
this Note is subject to "Annual Redemption Percentage Reduction," the Initial
Redemption Percentage indicated on the face hereof will be reduced on each
anniversary of the Initial Redemption Date by the Annual Redemption Percentage
Reduction specified on the face hereof until the redemption price of this Note
is 100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption. Notice of redemption shall be mailed
to the registered holders of the Notes designated for redemption at their
addresses as the same shall appear on the Note register not less than 30 nor
more than 60 calendar days prior to the date fixed for redemption or within the
Redemption Notice Period specified on the face hereof, subject to all the
conditions and provisions of the Senior Indenture. In the event of redemption
of this Note in part only, a new Note or Notes for the amount of the unredeemed
portion hereof shall be issued in the name of the holder hereof upon the
cancellation hereof.
If so indicated on the face of this Note, this Note will be subject to
repayment at the option of the holder on the Optional Repayment Date or Dates
specified on the face hereof on the terms set forth herein. On any Optional
Repayment Date, this Note will be repayable in whole or in part in increments
of $1,000 or, if this Note is denominated in a Specified Currency other than
U.S. dollars, in increments of 1,000 units of such Specified Currency (provided
that any remaining principal amount hereof shall not be less than the minimum
authorized denomination hereof) at the option of the holder hereof at a price
equal to 100% of the principal amount to be repaid, together with interest
7
accrued and unpaid hereon to the date of repayment. For this Note to be repaid
at the option of the holder hereof, the Paying Agent must receive at its
corporate trust office in the Borough of Manhattan, The City of New York, at
least 15 but not more than 30 calendar days prior to the date of repayment, (i)
this Note with the form entitled "Option to Elect Repayment" below duly
completed or (ii) a telegram, telex, facsimile transmission or a letter from a
member of a national securities exchange or the National Association of
Securities Dealers, Inc. or a commercial bank or a trust company in the United
States setting forth the name of the holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of this Note's
tenor and terms, the principal amount hereof to be repaid, a statement that the
option to elect repayment is being exercised thereby and a guarantee that this
Note, together with the form entitled "Option to Elect Repayment" duly
completed, will be received by the Paying Agent not later than the fifth
Business Day after the date of such telegram, telex, facsimile transmission or
letter; provided, that such telegram, telex, facsimile transmission or letter
shall only be effective if this Note and form duly completed are received by
the Paying Agent by such fifth Business Day. Exercise of such repayment option
by the holder hereof shall be irrevocable. In the event of repayment of this
Note in part only, a new Note or Notes for the amount of the unpaid portion
hereof shall be issued in the name of the holder hereof upon the cancellation
hereof.
Interest payments on this Note will include interest accrued to but
excluding the Installment Payment Dates or the Maturity Date (or any earlier
redemption or optional repayment date), as the case may be. Unless otherwise
provided on the face hereof, interest payments for this Note will be computed
and paid on the basis of a 360-day year of twelve 30-day months.
In the case where the Installment Payment Date or the Maturity Date
(or any redemption or optional repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on such
date need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the Installment
Payment Date or on the Maturity Date (or any redemption or repayment date), and
no interest on such payment shall accrue for the period from and after the
Installment Payment Date or the Maturity Date (or any redemption or repayment
date) to such next succeeding Business Day.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured
and unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. dollars, unless otherwise stated above, is issuable only in
denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in excess
thereof. If this Note is denominated in a Specified Currency other than U.S.
dollars, then, unless a higher minimum denomination is required by applicable
law, it is issuable only in denominations of the equivalent of U.S. $1,000
(rounded to an integral multiple of 1,000 units of such Specified Currency), or
any amount in excess thereof which is an integral multiple of 1,000 units of
such Specified Currency, as determined by reference to the noon dollar buying
rate in The City of New York for cable transfers of such Specified Currency
published by the Federal Reserve
8
Bank of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance.
The Trustee has been appointed registrar for the Notes, and the
Trustee will maintain at its office in The City of New York a register for the
registration and transfer of Notes. This Note may be transferred at the
aforesaid office of the Trustee by surrendering this Note for cancellation,
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and duly executed by the registered holder hereof in person or by the
holder's attorney duly authorized in writing, and thereupon the Trustee shall
issue in the name of the transferee or transferees, in exchange herefor, a new
Note or Notes having identical terms and provisions and having a like aggregate
principal amount in authorized denominations, subject to the terms and
conditions set forth herein; provided, however, that the Trustee will not be
required (i) to register the transfer of or exchange any Note that has been
called for redemption in whole or in part, except the unredeemed portion of
Notes being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of such
Note not required to be repurchased, or (iii) to register the transfer of or
exchange Notes to the extent and during the period so provided in the Senior
Indenture with respect to the redemption of Notes. Notes are exchangeable at
said office for other Notes of other authorized denominations of equal
aggregate principal amount having identical terms and provisions. All such
exchanges and transfers of Notes will be free of charge, but the Issuer may
require payment of a sum sufficient to cover any tax or other governmental
charge in connection therewith. All Notes surrendered for exchange shall be
accompanied by a written instrument of transfer in form satisfactory to the
Trustee and executed by the registered holder in person or by the holder's
attorney duly authorized in writing. The date of registration of any Note
delivered upon any exchange or transfer of Notes shall be such that no gain or
loss of interest results from such exchange or transfer.
In case this Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and this Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, the Issuer in its discretion may execute a new Note
of like tenor in exchange for this Note, but, if this Note is destroyed, lost
or stolen, only upon receipt of evidence satisfactory to the Trustee and the
Issuer that this Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal of,
premium, if any, or interest on, any series of debt securities issued under the
Senior Indenture, including the series of Senior Medium-Term Notes of which
this Note forms a part, or due to the default in the performance or breach of
any other covenant or warranty of the Issuer applicable to the debt securities
of such series but not applicable to all outstanding debt securities issued
under the Senior Indenture, shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of the debt
securities of each affected series (voting as a single class) may then declare
the principal of all debt
9
securities of all such series and interest accrued thereon to be due and
payable immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Senior Indenture
applicable to all outstanding debt securities issued thereunder, including this
Note, or due to certain events of bankruptcy or insolvency of the Issuer, shall
have occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of all debt securities issued under the Senior
Indenture then outstanding (treated as one class) may declare the principal of
all such debt securities and interest accrued thereon to be due and payable
immediately, but upon certain conditions such declarations may be annulled and
past defaults may be waived (except a continuing default in payment of
principal, premium, if any, or interest on such debt securities) by the holders
of a majority in principal amount of the debt securities of all affected series
then outstanding.
If the face hereof indicates that this Note is subject to "Tax
Redemption and Payment of Additional Amounts," this Note may be redeemed, as a
whole, at the option of the Issuer at any time prior to maturity, upon the
giving of a notice of redemption as described below, at a redemption price
equal to 100% of the principal amount hereof, together with accrued interest to
the date fixed for redemption (except that if this Note is subject to "Modified
Payment upon Acceleration or Redemption," such redemption price would be
limited to the aggregate principal amount hereof multiplied by the sum of the
Issue Price specified on the face hereof (expressed as a percentage of the
aggregate principal amount) plus the original issue discount amortized from the
Interest Accrual Date to the date of redemption, which amortization shall be
calculated using the "interest method" (computed in accordance with generally
accepted accounting principles in effect on the date of redemption), if the
Issuer determines that, as a result of any change in or amendment to the laws
(or any regulations or rulings promulgated thereunder) of the United States or
of any political subdivision or taxing authority thereof or therein affecting
taxation, or any change in official position regarding the application or
interpretation of such laws, regulations or rulings, which change or amendment
becomes effective on or after the Initial Offering Date hereof, the Issuer has
or will become obligated to pay Additional Amounts (as defined below) with
respect to this Note as described below. Prior to the giving of any notice of
redemption pursuant to this paragraph, the Issuer shall deliver to the Trustee
(i) a certificate stating that the Issuer is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions precedent to
the right of the Issuer to so redeem have occurred, and (ii) an opinion of
independent counsel satisfactory to the Trustee to such effect based on such
statement of facts; provided that no such notice of redemption shall be given
earlier than 60 calendar days prior to the earliest date on which the Issuer
would be obligated to pay such Additional Amounts if a payment in respect of
this Note were then due.
Notice of redemption will be given not less than 30 nor more than 60
calendar days prior to the date fixed for redemption or within the Redemption
Notice Period specified on face hereof, which date and the applicable
redemption price will be specified in the notice.
If the face hereof indicates that this Note is subject to "Tax
Redemption and Payment of Additional Amounts," the Issuer will, subject to
certain exceptions and limitations set forth below, pay such additional amounts
(the "Additional Amounts") to the holder of this Note who is a United States
Alien as may be necessary in order that every net payment of the principal of
and interest on
10
this Note and any other amounts payable on this Note, after withholding for or
on account of any present or future tax, assessment or governmental charge
imposed upon or as a result of such payment by the United States (or any
political subdivision or taxing authority thereof or therein), will not be less
than the amount provided for in this Note to be then due and payable. The
Issuer will not, however, be required to make any payment of Additional Amounts
to any such holder for or on account of:
(a) any such tax, assessment or other governmental charge that
would not have been so imposed but for (i) the existence of any
present or former connection between such holder (or between a
fiduciary, settlor, beneficiary, member or shareholder of such
holder, if such holder is an estate, a trust, a partnership or a
corporation) and the United States and its possessions, including,
without limitation, such holder (or such fiduciary, settlor,
beneficiary, member or shareholder) being or having been a citizen or
resident thereof or being or having been engaged in a trade or
business or present therein or having, or having had, a permanent
establishment therein or (ii) the presentation by the holder of this
Note for payment on a date more than 15 calendar days after the date
on which such payment became due and payable or the date on which
payment thereof is duly provided for, whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer or personal
property tax or any similar tax, assessment or governmental charge;
(c) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as a personal holding
company or foreign personal holding company or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other
tax-exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect
of this Note;
(e) any tax, assessment or other governmental charge required to
be withheld by any Paying Agent from any payment of principal of, or
interest on, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that would
not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning
the nationality, residence or identity of the holder or beneficial
owner of this Note, if such compliance is required by statute or by
regulation of the United States or of any political subdivision or
taxing authority thereof or therein as a precondition to relief or
exemption from such tax, assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed by
reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total
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combined voting power of all classes of stock entitled to vote of the
Issuer or as a direct or indirect subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g).
In addition, the Issuer shall not be required to make any payment of Additional
Amounts (i) to any such holder where such withholding or deduction is imposed
on a payment to an individual and is required to be made pursuant to any
European Union Directive on the taxation of savings implementing the agreement
reached in the ECOFIN Council meeting of 13 December 2001 or any law
implementing or complying with, or introduced in order to conform to, such
Directive; or (ii) by or on behalf of a holder who would have been able to
avoid such withholding or deduction by presenting this Note or the relevant
coupon to another Paying Agent in a member state of the European Union. Nor
shall Additional Amounts be paid with respect to any payment on this Note to a
United States Alien who is a fiduciary or partnership or other than the sole
beneficial owner of such payment to the extent such payment would be required
by the laws of the United States (or any political subdivision thereof) to be
included in the income, for tax purposes, of a beneficiary or settlor with
respect to such fiduciary or a member of such partnership or a beneficial owner
who would not have been entitled to the Additional Amounts had such
beneficiary, settlor, member or beneficial owner been the holder of this Note.
The Senior Indenture permits the Issuer and the Trustee, with the
consent of the holders of not less than a majority in aggregate principal
amount of the debt securities of all series issued under the Senior Indenture
then outstanding and affected (voting as one class), to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee
may not, without the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or modify or
amend the provisions for conversion of any currency into any other currency, or
modify or amend the provisions for conversion or exchange of the debt security
for securities of the Issuer or other entities (other than as provided in the
antidilution provisions or other similar adjustment provisions of the debt
securities or otherwise in accordance with the terms thereof), or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture.
Except as set forth below, if the principal of, premium, if any, or
interest on, this Note is payable in a Specified Currency other than U.S.
dollars and such Specified Currency is not available to the Issuer for making
payments hereon due to the imposition of exchange controls or other
circumstances beyond the control of the Issuer or is no longer used by the
government of the country issuing such currency or for the settlement of
transactions by public institutions within the international banking community,
then the Issuer will be entitled to satisfy its obligations to the holder of
this Note by making such payments in U.S. dollars on the basis of the Market
Exchange Rate on the date of such payment or, if the Market Exchange Rate is
not available on such date, as
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of the most recent practicable date; provided, however, that if the euro has
been substituted for such Specified Currency, the Issuer may at its option (or
shall, if so required by applicable law) without the consent of the holder of
this Note effect the payment of principal of, premium, if any, or interest on,
any Note denominated in such Specified Currency in euro in lieu of such
Specified Currency in conformity with legally applicable measures taken
pursuant to, or by virtue of, the treaty establishing the European Community,
as amended. Any payment made under such circumstances in U.S. dollars or euro
where the required payment is in an unavailable Specified Currency will not
constitute an Event of Default. If such Market Exchange Rate is not then
available to the Issuer or is not published for a particular Specified
Currency, the Market Exchange Rate will be based on the highest bid quotation
in The City of New York received by the Exchange Rate Agent at approximately
11:00 a.m., New York City time, on the second Business Day preceding the date
of such payment from three recognized foreign exchange dealers (the "Exchange
Dealers") for the purchase by the quoting Exchange Dealer of the Specified
Currency for U.S. dollars for settlement on the payment date, in the aggregate
amount of the Specified Currency payable to those holders or beneficial owners
of Notes and at which the applicable Exchange Dealer commits to execute a
contract. One of the Exchange Dealers providing quotations may be the Exchange
Rate Agent unless the Exchange Rate Agent is an affiliate of the Issuer. If
those bid quotations are not available, the Exchange Rate Agent shall determine
the market exchange rate at its sole discretion.
All determinations referred to above made by, or on behalf of, the
Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will cause to be
maintained an office or agency for the payment of the principal of and premium,
if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be such
an agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated. If any European Union Directive on
the taxation of savings implementing the agreement reached in the ECOFIN
Council meeting of 13 December 2001 or any law implementing or complying with,
or introduced in order to conform to, such Directive is introduced and a Paying
Agent has been designated within the European Union, the Issuer will maintain a
Paying Agent in a member state of the European Union that will not be obligated
to withhold or deduct tax pursuant to any such Directive or law.
With respect to moneys paid by the Issuer and held by the Trustee or
any Paying Agent for payment of the principal of or interest or premium, if
any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall thereafter look
only to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such Paying
Agent with respect to such moneys shall thereupon cease, without, however,
limiting in any
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way any obligation that the Issuer may have to pay the principal of or interest
or premium, if any, on this Note as the same shall become due.
No provision of this Note or of the Senior Indenture shall alter or
impair the obligation of the Issuer, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein prescribed unless
otherwise agreed between the Issuer and the registered holder of this Note.
Prior to due presentment of this Note for registration of transfer,
the Issuer, the Trustee and any agent of the Issuer or the Trustee may treat
the holder in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and none of the Issuer, the
Trustee or any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal, premium, if
any, or the interest on this Note, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Senior Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Issuer or of any
successor corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
As used herein, the term "United States Alien" means any person who,
for United States federal income tax purposes, is a foreign corporation, a
non-resident alien individual, a non-resident alien fiduciary of a foreign
estate or trust, or a foreign partnership one or more of the members of which
is a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust.
All terms used in this Note which are defined in the Senior Indenture
and not otherwise defined herein shall have the meanings assigned to them in
the Senior Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT -______________________ Custodian____________________
(Minor) (Cust)
Under Uniform Gifts to Minors Act______________________________________
(State)
Additional abbreviations may also be used though not in the above
list.
________________________
15
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
____________________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:___________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer
to repay the within Note (or portion thereof specified below) pursuant to its
terms at a price equal to the principal amount thereof, together with interest
to the Optional Repayment Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have repaid:
____________; and specify the denomination or denominations (which shall not be
less than the minimum authorized denomination) of the Notes to be issued to the
holder for the portion of the within Note not being repaid (in the absence of
any such specification, one such Note will be issued for the portion not being
repaid):____________.
Dated: ________________________________ ____________________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration
or enlargement.
17
[SCHEDULE A](9)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In accordance
with the Unit Agreement dated May 6, 1999 among the Issuer, JPMorgan Chase Bank
(formerly known as The Chase Manhattan Bank), as Unit Agent, as Collateral
Agent and as Trustee under the Indentures referred to therein and the Holders
from time to time of the Units described therein, the following (A) reductions
of the principal amount of this Note by cancellation upon the application of
such amount to the settlement of Purchase Contracts or the exercise of
Universal Warrants or for any other reason or (B) exchanges of portions of this
Note for an interest in a Note that has been separated from a Unit (a
"Separated Note") have been made:](10) [The following (A) reductions of the
principal amount of this Note by cancellation upon the application of such
amount to the settlement of Purchase Contracts or the exercise of Universal
Warrants or for any other reason or (B) exchanges of an interest in a Note that
is part of a Unit (an "Attached Unit Note") for an interest in this Note have
been made:](11)
Principal Principal Increased
Amount Reduced Principal Amount of Principal Amount
Exchanged Amount Outstanding Attached Unit of this Note
Date of Principal For Following Such Note Exchanged Outstanding Notation Made by
Exchange or Amount Separated Exchange or For Interest in Following Such or on Behalf of
Cancellation Canceled Note(10) Cancellation this Note(11) Exchange(11) Paying Agent
______________ __________ ___________ __________________ ________________ ________________ ____________________
______________ __________ ___________ __________________ ________________ ________________ ____________________
______________ __________ ___________ __________________ ________________ ________________ ____________________
______________ __________ ___________ __________________ ________________ ________________ ____________________
______________ __________ ___________ __________________ ________________ ________________ ____________________
______________ __________ ___________ __________________ ________________ ________________ ____________________
______________ __________ ___________ __________________ ________________ ________________ ____________________
______________ __________ ___________ __________________ ________________ ________________ ____________________
______________ __________ ___________ __________________ ________________ ________________ ____________________
______________ __________ ___________ __________________ ________________ ________________ ____________________
- --------
(9) Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
(10) Applies only if this Note is part of a Unit.
(11) Applies only if this Note has been separated from a Unit.
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