EXHIBIT 4-v
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL FLOATING RATE SENIOR BEARER NOTE
BEARER BEARER
No. PGFLR
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT TO
LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE LIMITATIONS
PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER NOTES
OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER THE
SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF
JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN JAPAN INCLUDING
ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF JAPAN) OR TO OTHERS
FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO A
RESIDENT OF JAPAN EXCEPT PURSUANT TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF, AND OTHERWISE IN COMPLIANCE WITH, THE SECURITIES AND EXCHANGE
LAW OF JAPAN AND OTHER RELEVANT LAWS AND REGULATIONS OF JAPAN.(1)
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(1) If this Note is offered in Japan or denominated in Japanese Yen,
appropriate legends need to be added.
MORGAN STANLEY
GLOBAL MEDIUM TERM NOTE, SERIES [D/E]
Permanent Global Floating Rate Senior Bearer Note
============================================================================================================
ORIGINAL ISSUE DATE: INTEREST ACCRUAL DATE: INTEREST PAYMENT DATE(S):
- ------------------------------------------------------------------------------------------------------------
MATURITY DATE: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
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BASE RATE: INITIAL INTEREST RESET DATE: INTEREST RESET DATE(S):
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INDEX MATURITY: MAXIMUM INTEREST RATE: INTEREST RESET PERIOD:
- ------------------------------------------------------------------------------------------------------------
SPREAD (PLUS OR MINUS): MINIMUM INTEREST RATE: CALCULATION AGENT:
- ------------------------------------------------------------------------------------------------------------
SPREAD MULTIPLIER: INITIAL REDEMPTION DATE: EUROCLEAR NO:
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SPECIFIED CURRENCY: INITIAL REDEMPTION PERCENTAGE: CLEARSTREAM NO:
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INDEX CURRENCY: ANNUAL REDEMPTION PERCENTAGE COMMON CODE:
REDUCTION:
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DESIGNATED CMT TELERATE PAGE: REDEMPTION NOTICE PERIOD:(2) ISIN:
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DESIGNATED CMT MATURITY INDEX: OPTIONAL REPAYMENT DATE(S): MINIMUM DENOMINATIONS:
- ------------------------------------------------------------------------------------------------------------
REPORTING SERVICE: INITIAL OFFERING DATE: EXCHANGE FOR
REGISTERED NOTES: [NO](3)
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OTHER PROVISIONS:
============================================================================================================
Morgan Stanley (formerly known as Morgan Stanley Dean Witter & Co.), a
Delaware corporation (together with its successors and assigns, the "Issuer"),
for value received, hereby promises to pay to bearer, upon surrender hereof,
the principal amount specified in [Schedule A hereto](4) [Schedule A-1
hereto](5), on the Maturity Date specified above (except to the extent
previously redeemed or repaid) and to pay interest thereon, from and including
the Interest Accrual Date specified above at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above, and on and after at a rate per annum determined in accordance
with the provisions
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(2) Applicable if other than 30-60 calendar days. Consult with Euroclear or
Clearstream if a shorter redemption is requested. A minimum of 10 calendar days
may be possible.
(3) Unless explicitly stated otherwise in term sheet, MS practice has been to
exclude this option.
(4) Applies if this Note is not issued as part of, or in relation to, a Unit.
(5) Applies if this Note is issued as part of, or in relation to, a Unit.
2
specified on the reverse hereof until but excluding the date such principal
amount is paid or duly made available for payment. The Issuer will pay interest
in arrears monthly, quarterly, semiannually or annually as specified above as
the Interest Payment Period on each Interest Payment Date (as specified above),
commencing with the first Interest Payment Date next succeeding the Interest
Accrual Date specified above, and on the Maturity Date specified above (or any
redemption or repayment date); provided, however, that if the Interest Accrual
Date occurs fifteen calendar days or less prior to the first Interest Payment
Date occurring after the Interest Accrual Date, interest payments will commence
on the second Interest Payment Date succeeding the Interest Accrual Date; and
provided, further, that if an Interest Payment Date (other than the Maturity
Date or any redemption or repayment date) would fall on a day that is not a
Business Day, as defined on the reverse hereof, such Interest Payment Date
shall be the following day that is a Business Day, except that if the Base Rate
specified above is LIBOR or EURIBOR and such next Business Day falls in the
next calendar month, such Interest Payment Date shall be the immediately
preceding day that is a Business Day; and provided, further, that if the
Maturity Date or redemption or repayment date would fall on a day that is not a
Business Day, the payment of principal, premium, if any, and interest shall be
made on the next succeeding Business Day and no interest shall accrue for the
period from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most recent
Interest Payment 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 (except as provided below). The
interest so payable, and punctually paid or duly provided for, on any Interest
Payment Date will, subject to certain exceptions described herein, be paid to
the holder of this Note at the office or agency of the Principal Paying Agent
(this and certain other capitalized terms used herein are defined on the
reverse of this Note) or at the office or agency of such other paying agents
outside the United States as the Issuer may determine for that purpose (each, a
"Paying Agent," which term shall include the Principal Paying Agent).
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
presentation and surrender of this Note at the office or agency of the
Principal Paying Agent or at the office of any Paying Agent.
Payment of the principal of and premium, if any, and interest on this
Note will be made in the Specified Currency indicated above, except as provided
on the reverse hereof. If this Note is denominated in U.S. dollars, any payment
of the principal of and premium, if any, and interest on this Note will be made
in such coin or currency of the United States as at the time of payment is
legal tender for payment of public and private debts. Such payments on this
Note will be made either by a check mailed to an address outside the United
States furnished by the payee or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by wire
transfer of immediately available funds to an account maintained by the payee
with a bank located outside the United States if appropriate wire transfer
instructions have been received by the Paying Agent not less than 15 calendar
days prior to the applicable payment date. Notwithstanding the foregoing, in
the event that payment in U.S. dollars
3
of the full amount payable on this Note at the offices of all Paying Agents
would be illegal or effectively precluded as a result of exchange controls or
similar restrictions, payment on this Note will be made by a paying agency in
the United States, if such paying agency, under applicable law and regulations,
would be able to make such payment. If this Note is denominated in a Specified
Currency other than U.S. dollars, then, except as provided on the reverse
hereof, payment of the principal of and premium, if any, and interest on this
Note will be made in such Specified Currency either by a check drawn on a bank
outside the United States or, at the option of the payee and subject to
applicable laws and regulations and the procedures of the Paying Agent, by wire
transfer of immediately available funds to an account maintained by the payee
with a bank located outside the United States.
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.
4
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly executed.
DATED:
MORGAN STANLEY
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
JPMORGAN CHASE BANK,
as Trustee
By:
-------------------------------
Authorized Officer
5
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Global Medium-Term
Notes, Series [D/E], 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 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, London Branch, as its
principal paying agent for the Notes (the "Principal Paying Agent," which term
includes any additional or successor Principal Paying Agent appointed by the
Issuer). 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 indicated on the face hereof
in accordance with the provisions of the following two paragraphs and except as
set forth below, 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
(except as indicated below). 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
(except as provided below). Notice of redemption shall be mailed to the holders
of the Notes designated for redemption who have filed their names and addresses
with the Principal Paying Agent, 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. Notice of redemption to all other holders
of Notes shall be given in the manner set forth in "Notices" as defined below
and, if by publication, shall be given once in each of three successive
calendar weeks, the first publication to be not less than 30 nor more than 60
calendar days prior to the date set for redemption or within the Redemption
Notice Period specified on the face hereof. In the event of redemption of this
Note in part only, the Principal Paying Agent shall cause Schedule [A] [A-1] of
this Note to be endorsed to reflect the reduction of its principal amount by an
amount equal to the aggregate principal amount of this Note so redeemed,
whereupon the principal amount hereof shall be reduced for all purposes by the
amount so redeemed and noted.
6
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
accrued and unpaid hereon to the date of repayment (except as provided below).
For this Note to be repaid at the option of the holder hereof, the Principal
Paying Agent must receive at its office in London, at least 15 but not more
than 30 calendar days prior to the date of repayment, this Note with the form
entitled "Option to Elect Repayment" below duly completed, or 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 trust company in the United States, Western Europe or
Japan setting forth the principal amount of the Note, the principal amount of
the Note to be repaid, the certificate number or a description of the tenor and
terms of this Note, a statement that the Option to Elect Repayment is being
exercised and a guarantee that this Note to be repaid, together with the duly
completed form entitled Option to Elect Repayment, will be received by the
Principal Paying Agent not later than the fifth Business Day after the date of
that telegram, telex, facsimile transmission or letter. However, the telegram,
telex, facsimile transmission or letter shall only be effective if this Note
and an Option to Elect Repayment form duly completed are received by the
Principal Paying Agent by the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter. Exercise of such repayment
option by the holder hereof shall be irrevocable. In the event of repayment of
this Note in part only, the Principal Paying Agent shall cause Schedule [A]
[A-1] of this Note to be endorsed to reflect the reduction of its principal
amount by an amount equal to the aggregate principal amount of this Note so
repaid, whereupon the principal amount hereof shall be reduced for all purposes
by the amount so repaid and noted.
This Note will bear interest at the rate determined in accordance with
the applicable provisions below by reference to the Base Rate shown on the face
hereof based on the Index Maturity, if any, shown on the face hereof (i) plus
or minus the Spread, if any, or (ii) multiplied by the Spread Multiplier, if
any, specified on the face hereof. Commencing with the Initial Interest Reset
Date specified on the face hereof, the rate at which interest on this Note is
payable shall be reset as of each Interest Reset Date specified on the face
hereof (as used herein, the term "Interest Reset Date" shall include the
Initial Interest Reset Date). The determination of the rate of interest at
which this Note will be reset on any Interest Reset Date shall be made on the
Interest Determination Date (as defined below) pertaining to such Interest
Reset Date. The Interest Reset Dates will be the Interest Reset Dates specified
on the face hereof; provided, however, that the interest rate in effect for the
period from the Interest Accrual Date to the Initial Interest Reset Date will
be the Initial Interest Rate. If any Interest Reset Date would otherwise be a
day that is not a Business Day (as defined below), such Interest Reset Date
shall be postponed to the next succeeding day that is a Business Day, except
that if the Base Rate specified on the face hereof is LIBOR or EURIBOR and such
Business Day is in the next
7
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
The Interest Determination Date pertaining to an Interest Reset Date
for Notes bearing interest calculated by reference to the Federal Funds Rate
and Prime Rate shall be on the Business Day prior to the Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to the CD Rate, Commercial Paper Rate
and CMT Rate will be the second Business Day prior to such Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date for Notes
bearing interest calculated by reference to EURIBOR (or to LIBOR when the Index
Currency is euros) shall be the second TARGET Settlement Day prior to such
Interest Reset Date. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to LIBOR (other
than for LIBOR Notes for which the Index Currency is euros) shall be the second
London Banking Day prior to such Interest Reset Date, except that the Interest
Determination Date pertaining to an Interest Reset Date for a LIBOR Note for
which the Index Currency is pounds sterling will be such Interest Reset Date.
As used herein, "London Banking Day" means any day on which dealings in
deposits in the Index Currency (as defined herein) are transacted in the London
interbank market. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the Treasury
Rate shall be the day of the week in which such Interest Reset Date falls on
which Treasury bills normally would be auctioned. Treasury Bills are normally
sold at auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is normally held on the following Tuesday, except that
the auction may be held on the preceding Friday; provided, however, that if an
auction is held on the Friday of the week preceding such Interest Reset Date,
the Interest Determination Date shall be such preceding Friday; and provided,
further, that if an auction shall fall on any Interest Reset Date, then the
Interest Reset Date shall instead be the first Business Day following the date
of such auction. The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to two or more
base rates will be the latest Business Day that is at least two Business Days
before the Interest Reset Date for the applicable Note on which each base rate
is determinable.
Unless otherwise specified on the face hereof, the "Calculation Date"
pertaining to an Interest Determination Date will be the earlier of (i) the
tenth calendar day after such Interest Determination Date or, if such day is
not a Business Day, the next succeeding Business Day, or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or Maturity Date
(or, with respect to any principal amount to be redeemed or repaid, any
redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the face
hereof is the "CD Rate," for any Interest Determination Date, the CD Rate with
respect to this Note shall be the rate on that date for negotiable U.S. dollar
certificates of deposit having the Index Maturity specified on the face hereof
as published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates," or any successor
publication of the Board of Governors of the Federal Reserve System
("H.15(519)") under the heading "CDs (Secondary Market)."
8
The following procedures shall be followed if the CD Rate cannot be
determined as described above:
(i) If the above rate is not published in H.15(519) by 3:00 p.m., New
York City time, on the Calculation Date, the CD Rate shall be the rate on that
Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.federalreserve.gov/releases/h15/update, or
any successor site or publication ("H.15 Daily Update") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date,
the Calculation Agent shall 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 of three leading nonbank dealers in negotiable
U.S. dollar certificates of deposit in The City of New York, which may include
the initial dealer and its affiliates, selected by the Calculation Agent (after
consultation with the Issuer), for negotiable U.S. dollar certificates of
deposit of major U.S. money center banks of the highest credit standing in the
market for negotiable certificates of deposit with a remaining maturity closest
to the Index Maturity specified on the face hereof in an amount that is
representative for a single transaction in that market at that time.
"Initial dealer" with respect to this Note means either Morgan Stanley
& Co. Incorporated or Morgan Stanley DW Inc., as applicable.
(iii) If the dealers selected by the Calculation Agent are not quoting
as set forth in (ii) above, the CD Rate for that Interest Determination Date
shall remain the CD Rate for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable shall
be the Initial Interest Rate.
Determination of Commercial Paper Rate. If the Base Rate specified on
the face hereof is the "Commercial Paper Rate," for any Interest Determination
Date, the Commercial Paper Rate with respect to this Note shall be the Money
Market Yield (as defined herein), calculated as described below, of the rate on
that date for commercial paper having the Index Maturity specified on the face
hereof, as that rate is published in H.15(519), under the heading "Commercial
Paper - Nonfinancial."
The following procedures shall be followed if the Commercial Paper
Rate cannot be determined as described above:
(i) If the above rate is not published by 3:00 p.m., New York City
time, on the Calculation Date, then the Commercial Paper Rate shall be the
Money Market Yield of the rate on that Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof as
published in the H.15 Daily Update, or other recognized electronic source used
for the purpose of displaying the applicable rate, under the heading
"Commercial Paper Nonfinancial."
9
(ii) If by 3:00 p.m., New York City time, on that Calculation Date the
rate is not yet published in either H.15(519) or the H.15 Daily Update, then
the Calculation Agent shall determine the Commercial Paper Rate to be the Money
Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m., New
York City time, on that Interest Determination Date of three leading dealers of
U.S. dollar commercial paper in The City of New York, which may include the
initial dealer and its affiliates, selected by the Calculation Agent (after
consultation with the Issuer), for commercial paper of the Index Maturity
specified on the face hereof, placed for an industrial issuer whose bond rating
is "Aa," or the equivalent, from a nationally recognized statistical rating
agency.
(iii) If the dealers selected by the Calculation Agent are not quoting
as set forth in (ii) above, the Commercial Paper Rate for that Interest
Determination Date shall remain the Commercial Paper Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a yield calculated in accordance
with the following formula:
D x 360
Money Market Yield = -------------- x 100
360 - (D x M)
where "D" refers to the applicable per year 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 EURIBOR Notes. If the Base Rate specified on the face
hereof is "EURIBOR," for any Interest Determination Date, EURIBOR with respect
to this Note shall be the rate for deposits in euros as sponsored, calculated
and published jointly by the European Banking Federation and ACI - The
Financial Market Association, or any company established by the joint sponsors
for purposes of compiling and publishing those rates, for the Index Maturity
specified on the face hereof as that rate appears on the display on Moneyline
Telerate, or any successor service, on page 248 or any other page as may
replace page 248 on that service ("Telerate Page 248") as of 11:00 a.m.,
Brussels time.
The following procedures shall be followed if the rate cannot be
determined as described above:
(i) If the above rate does not appear, the Calculation Agent shall
request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer), to provide the Calculation Agent with its
offered rate for deposits in euros, at approximately 11:00 a.m., Brussels time,
on the Interest Determination Date, to prime banks in the Euro-zone interbank
market for the Index Maturity specified on the face hereof commencing on the
applicable Interest Reset Date, and in a principal amount not less than the
equivalent of U.S.$1 million in euro that is representative of a single
transaction in euro, in that market at that time. If at least two quotations
are provided, EURIBOR shall be the arithmetic mean of those quotations.
10
(ii) If fewer than two quotations are provided, EURIBOR shall be the
arithmetic mean of the rates quoted by four major banks in the Euro-zone
interbank market, as selected by the Calculation Agent (after consultation with
the Issuer), at approximately 11:00 a.m., Brussels time, on the applicable
Interest Reset Date for loans in euro to leading European banks for a period of
time equivalent to the Index Maturity specified on the face hereof commencing
on that Interest Reset Date in a principal amount not less than the equivalent
of U.S.$1 million in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as set forth in (ii) above, EURIBOR in effect for the applicable period
shall be the same as EURIBOR for the immediately preceding Interest Reset
Period, or, if there was no Interest Reset Period, the rate of interest payable
shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the relevant
treaty of the European Union, as amended.
Determination of the Federal Funds Rates. If the Base Rate specified
on the face hereof is the "Federal Funds Rate," for any Interest Determination
Date, the Federal Funds Rate with respect to this Note shall be the rate on
that date for federal funds as published in H.15(519) under the heading
"Federal Funds (Effective)" as displayed on Moneyline Telerate, or any
successor service, on page 120 or any other page as may replace page 120 on
that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds Rate
cannot be determined as described above:
(i) If the above rate is not published by 3:00 p.m., New York City
time, on the Calculation Date, the Federal Funds Rate shall be the rate on that
Interest Determination Date as published in the H.15 Daily Update, or other
recognized electronic source used for the purpose of displaying the applicable
rate, under the heading "Federal Funds (Effective)."
(ii) If the above rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date,
the Calculation Agent shall determine the Federal Funds Rate to be the
arithmetic mean of the rates for the last transaction in overnight U.S. dollar
federal funds by each of three leading brokers of U.S. dollar federal funds
transactions in The City of New York, which may include the initial dealer and
its affiliates, selected by the Calculation Agent (after consultation with the
Issuer), prior to 9:00 a.m., New York City time, on that Interest Determination
Date.
(iii) If the brokers selected by the Calculation Agent are not quoting
as set forth in (ii) above, the Federal Funds Rate for that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
Determination of LIBOR. If the Base Rate specified on the face hereof
is "LIBOR," LIBOR with respect to this Note shall be based on London Interbank
Offered
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Rate. The Calculation Agent shall determine LIBOR for each Interest
Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either: (a)
if "LIBOR Reuters" is specified as the Reporting Service on the face hereof,
the arithmetic mean of the offered rates for deposits in the Index Currency
having the Index Maturity designated on the face hereof, commencing on the
second London Banking Day immediately following that Interest Determination
Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00
a.m., London time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page; except that if the specified
Designated LIBOR Page, by its terms provides only for a single rate, that
single rate shall be used; or (b) if "LIBOR Telerate" is specified as the
Reporting Service on the face hereof, the rate for deposits in the Index
Currency having the Index Maturity designated on the face hereof, commencing on
the second London Banking Day immediately following that Interest Determination
Date or, if pounds sterling is the Index Currency, commencing on that Interest
Determination Date, that appears on the Designated LIBOR Page at approximately
11:00 a.m., London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters is
specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall request the principal London offices of each of four major
reference banks in the London interbank market, as selected by the Calculation
Agent (after consultation with the Issuer), to provide the Calculation Agent
with its offered quotation for deposits in the Index Currency for the period of
the Index Maturity specified on the face hereof commencing on the second London
Banking Day immediately following the Interest Determination Date or, if pounds
sterling is the Index Currency, commencing on that Interest Determination Date,
to prime banks in the London interbank market at approximately 11:00 a.m.,
London time, on that Interest Determination Date and in a principal amount that
is representative of a single transaction in that Index Currency in that market
at that time.
(iii) If at least two quotations are provided, LIBOR determined on
that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be
determined for the applicable Interest Reset Date as the arithmetic mean of the
rates quoted at approximately 11:00 a.m., London time, or some other time
specified on the face hereof, in the applicable principal financial center for
the country of the Index Currency on that Interest Reset Date, by three major
banks in that principal financial center selected by the Calculation Agent
(after consultation with the Issuer) for loans in the Index Currency to leading
European banks, having the Index Maturity specified on the face hereof and in a
principal amount that is representative of a single transaction in that Index
Currency in that market at that time.
(iv) If the banks so selected by the Calculation Agent are not quoting
as described in (iii) above, LIBOR in effect for the applicable period shall be
the same as LIBOR for the immediately preceding Interest Reset Period, or, if
there was no Interest Reset Period, the rate of interest payable shall be the
Initial Interest Rate.
12
The "Index Currency" means the currency specified on the face hereof
as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified on the face hereof, the Index Currency shall be U.S.
dollars.
"Designated LIBOR Page" means either: (a) if LIBOR Reuters is
designated as the Reporting Service on the face hereof, the display on the
Reuters Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency or its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Moneyline Telerate, or any successor
service, on the page specified on the face hereof, or any other page as may
replace that page on that service, for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency.
If neither LIBOR Reuters nor LIBOR Telerate is specified on the face
hereof, LIBOR for the applicable Index Currency shall be determined as if LIBOR
Telerate were specified, and, if the U.S. dollar is the Index Currency, as if
Page 3750 had been specified.
Determination of Prime Rate. If the Base Rate specified on the face
hereof is "Prime Rate," for any Interest Determination Date, the Prime Rate
with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate cannot be
determined as described above:
(i) If the above rate is not published prior to 3:00 p.m., New York
City time, on the Calculation Date, then the Prime Rate shall be the rate on
that Interest Determination Date as published in the H.15 Daily Update under
the heading "Bank Prime Loan."
(ii) If the above rate is not published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date,
the Calculation Agent shall 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 USPRIME 1 Page, as defined below, 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 USPRIME 1
Page by 3:00 p.m., New York City time, for that Interest Determination Date,
the Calculation Agent shall determine the Prime Rate to be the arithmetic mean
of the Prime Rates quoted on the basis of the actual number of days in the year
divided by 360 as of the close of business on that Interest Determination Date
by at least three major banks, which may include affiliates of the initial
dealer, in The City of New York selected by the Calculation Agent (after
consultation with the Issuer).
(iv) If the banks selected by the Calculation Agent are not quoting as
set forth in (iii) above, the Prime Rate for that Interest Determination Date
shall remain the Prime
13
Rate for the immediately preceding Interest Reset Period, or, if there was no
Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as page
"USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major U.S.
banks.
Determination of Treasury Rate. If the Base Rate specified on the face
hereof is "Treasury Rate," the Treasury Rate with respect to this Note shall be
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on
Moneyline Telerate, or any successor service, on page 56 or any other page as
may replace page 56 on that service ("Telerate Page 56") or page 57 or any
other page as may replace page 57 on that service ("Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00 p.m.,
New York City time, on the Calculation Date, the Bond Equivalent Yield of the
rate for the applicable Treasury Bills as published in the H.15 Daily Update,
or other recognized electronic source used for the purpose of displaying the
applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High"; or
(iii) if the rate described in (ii) above is not published by 3:00
p.m., New York City time, on the related Calculation Date, the Bond Equivalent
Yield of the Auction rate of the applicable Treasury Bills, announced by the
United States Department of the Treasury; or
(iv) if the rate described in (iii) above is not announced by the
United States Department of the Treasury, or if the Auction is not held, the
Bond Equivalent Yield of the rate on the applicable Interest Determination Date
of Treasury Bills having the Index Maturity specified on the face hereof
published in H.15(519) under the caption "U.S. Government Securities/Treasury
Bills/Secondary Market"; or
(v) if the rate described in (iv) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in the H.15 Daily Update, or other recognized electronic source used
for the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market"; or
(vi) if the rate described in (v) above is not so published by 3:00
p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the 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 applicable
Interest Determination Date, of three primary U.S. government securities
dealers, which may include the initial dealer and its affiliates,
14
selected by the Calculation Agent, for the issue of Treasury Bills with a
remaining maturity closest to the Index Maturity specified on the face hereof;
or
(vii) if the dealers selected by the Calculation Agent are not quoting
as described in (vi), the Treasury Rate for the immediately preceding Interest
Reset Period, or, if there was no Interest Reset Period, the rate of interest
payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in accordance
with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "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.
Determination of CMT Rate. If the Base Rate specified on the face
hereof is the "CMT Rate," for any Interest Determination Date, the CMT Rate
with respect to this Note shall be the rate displayed on the Designated CMT
Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately 3:45
p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the Designated CMT
Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately preceding
the week in which the related Interest Determination Date occurs, if the
Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate cannot be
determined as described above:
(i) If the above rate is no longer displayed on the relevant page, or
if not displayed by 3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate as described in (i) above is no longer published, or
if not published by 3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other U.S. Treasury rate for the Designated
CMT Maturity Index on 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 the relevant H.15(519).
15
(iii) If the information set forth above in (ii) is not provided by
3:00 p.m., New York City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to be a yield to maturity, based
on the arithmetic mean of the secondary market closing offer side prices as of
approximately 3:30 p.m., New York City time, on the Interest Determination
Date, reported, according to their written records, by three leading primary
U.S. government securities dealers ("Reference Dealers") in The City of New
York, which may include the initial dealer or its affiliates, selected by the
Calculation Agent as described in the following sentence. The Calculation Agent
shall select five reference dealers (after consultation with the Issuer) and
shall eliminate the highest quotation or, in the event of equality, one of the
highest, and the lowest quotation or, in the event of equality, one of the
lowest, for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index, a remaining term to maturity
of no more than 1 year shorter than that Designated CMT Maturity Index and in a
principal amount that is representative for a single transaction in the
securities in that market at that time. If two Treasury Notes with an original
maturity as described above have remaining terms to maturity equally close to
the Designated CMT Maturity Index, the quotes for the Treasury Note with the
shorter remaining term to maturity shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to be a yield to maturity based on the arithmetic mean of the
secondary market offer side prices as of approximately 3:30 p.m., New York City
time, on the Interest Determination Date of three reference dealers in The City
of New York, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest
to but not less than the Designated CMT Maturity Index and a remaining term to
maturity closest to the Designated CMT Maturity Index and in a principal amount
that is representative for a single transaction in the securities in that
market at that time.
(v) If three or four, and not five, of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the Calculation
Agent are quoting as described in (iv) above, the CMT Rate for that Interest
Determination Date shall remain the CMT Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Designated CMT Telerate Page" means the display on Moneyline
Telerate, or any successor service, on the page designated on the face hereof
or any other page as may replace that page on that service for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no page is
specified on the face hereof, the Designated CMT Telerate Page shall be 7052,
for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10, 20 or 30
years, as specified in
16
the applicable pricing supplement for which the CMT Rate shall be calculated.
If no maturity is specified on the face hereof, the Designated CMT Maturity
Index shall be two years.
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, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event
be higher than the maximum rate permitted by New York law, as the same may be
modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Date or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Accrued interest hereon
shall be an amount calculated by multiplying the principal amount hereof shown
on Schedule [A] [A-1] hereto by an accrued interest factor. Such accrued
interest factor shall be computed by adding the interest factor calculated for
each day in the period for which interest is being paid. Unless otherwise
specified on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day (i) by 360 if the
Base Rate is CD Rate, Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime
Rate or LIBOR (except if the Index Currency is pounds sterling); (ii) by 365 if
the Base Rate is LIBOR and the Index Currency is pounds sterling; or (iii) by
the actual number of days in the year if the Base Rate is the Treasury Rate or
the CMT Rate. All percentages used in or resulting from any calculation of the
rate of interest on this Note will be rounded, if necessary, to the nearest one
hundred thousandth of a percentage point (with .000005% being rounded up to
..00001%), and all U.S. dollar amounts used in or resulting from such
calculations on this Note will be rounded to the nearest cent, with one-half
cent rounded upward. All Japanese Yen amounts used in or resulting from such
calculations will be rounded downwards to the next lower whole Japanese Yen
amount. All amounts denominated in any other currency used in or resulting from
such calculations will be rounded to the nearest two decimal places in such
currency, with .005 being rounded up to .01. The interest rate in effect on any
Interest Reset Date will be the applicable rate as reset on such date. The
interest rate applicable to any other day is the interest rate from the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
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 is issued in permanent global bearer form without interest
coupons attached (a "Global Bearer Note"). The beneficial owner of all or a
portion of this Note may exchange its interest in this Note upon not less than
30 calendar days' written notice
17
to the Principal Paying Agent through the relevant clearing system, in whole,
for Notes in bearer form with interest coupons, if any, attached (the
"Definitive Bearer Notes," and, together with the Global Bearer Notes, the
"Bearer Notes") or, if so indicated on the face of this Note, at the beneficial
owner's option, in whole or from time to time in part, for Notes in fully
registered form without coupons (the "Registered Notes"), in each case, in the
minimum denominations set forth on the face hereof or any amount in excess
thereof which is an integral multiple of 1,000 units of the Specified Currency
set forth on the face hereof. Interests in this Note shall also be exchanged by
the Issuer in whole, but not in part, for Definitive Bearer Notes, which shall
be serially numbered, with coupons, if any, attached (or, if indicated on the
face of this Note, at the beneficial owner's option, for Registered Notes) of
any authorized denominations if (i) this Note is accelerated following an Event
of Default or (ii) either Euroclear Bank S.A./N.V., as operator of the
Euroclear System ("Euroclear"), or Clearstream Banking, societe anonyme
("Clearstream, Luxembourg"), or any other relevant clearing system (including
Euroclear France) is closed for business for a continuous period of fourteen
days (other than by reason of public holidays) or announces an intention to
cease business permanently or in fact does so. The Issuer shall give notice to
the Principal Paying Agent promptly following any such acceleration or upon
learning of any such closure. Any exchanges referred to above shall be made at
the office of the Principal Paying Agent, or, in the case of Registered Notes,
at the office of the transfer agent for the Registered Notes in London, which
transfer agent will initially be JPMorgan Chase Bank, London Branch, upon
compliance with any procedures set forth in, or established pursuant to, the
Senior Indenture; provided, however, that the Issuer shall not be required (i)
to register the transfer of or exchange this Note for a period of fifteen
calendar days preceding the first publication or other transmission, if
applicable, of a Notice of redemption of all or any portion hereof or (ii) to
register the transfer of or exchange any portion of this Note selected for
redemption or surrendered for optional repayment, except that such portion of
this Note may be exchanged for a Registered Note of like tenor; provided that
such Registered Note shall be simultaneously surrendered for redemption or
repayment, as the case may be; and provided, further, that if a Registered Note
is issued in exchange for any portion of this Note after the close of business
at the office of the Principal Paying Agent on any record date (whether or not
a Business Day) for the payment of interest on such Registered Note and before
the opening of business at such office on the relevant Interest Payment Date,
any interest will not be payable on such Interest Payment Date in respect of
such Registered Note, but will be payable on such Interest Payment Date only to
the holder of this Note. Upon exchange of this Note in whole for a Definitive
Bearer Note or Definitive Bearer Notes, or in whole or in part for a Registered
Note or Registered Notes, the Principal Paying Agent shall cause Schedule [A]
[A-1] of this Note to be endorsed to reflect the reduction of the principal
amount hereof by an amount equal to the aggregate principal amount of such
Definitive Bearer Note or Definitive Bearer Notes, or such Registered Note or
Registered Notes, whereupon the principal amount hereof shall be reduced for
all purposes by the amount so exchanged and noted. All such exchanges of Notes
will be free of service charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith. The date of any Note delivered upon any exchange of this Note shall
be such that no gain or loss of interest results from such exchange.
All (and not less than all) interests in this Note will be exchanged
for Definitive Bearer Notes in accordance with the procedures set forth in the
following two sentences
18
as soon as practicable after (i) the first beneficial owner of an interest in
this Note exchanges its interest for a Definitive Bearer Note, (ii) the Issuer
gives notice to the Principal Paying Agent of an acceleration of the Note or
(iii) either Euroclear or Clearstream, Luxembourg or any other relevant
clearing system is closed for business for a continuous period of fourteen days
(other than by reason of public holidays) or announces an intention to cease
business permanently or in fact does so. In the event of any exchange of
interests in this Note for a Definitive Bearer Note, a common depositary
located outside the United States (the "common depositary") holding this Note
for Euroclear, Clearstream, Luxembourg and/or any other relevant clearing
system, shall instruct the Principal Paying Agent regarding the aggregate
principal amount of Definitive Bearer Notes and the denominations of such
Definitive Bearer Notes that must be authenticated and delivered to each
relevant clearing system in exchange for this Note. Thereafter, the Principal
Paying Agent, acting solely in reliance on such instructions, shall, upon
surrender to it of this Note and subject to the conditions in the preceding
paragraph, authenticate and deliver Definitive Bearer Notes in exchange for
this Note in accordance with such instructions and shall cause Schedule [A]
[A-1]of this Note to be endorsed to reflect the reduction of its principal
amount by an amount equal to the aggregate principal amount of this Note.
Nothing in this paragraph shall prevent the further exchange of Definitive
Bearer Notes into Registered Notes.
This Note may be transferred by delivery; provided, however, that this
Note may be transferred only to a common depositary outside the United States
for Euroclear, Clearstream, Luxembourg and/or any other relevant clearing
system or to a nominee of such a depositary.
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, in the case of any destroyed,
lost or stolen Note, only upon receipt of evidence satisfactory to the Trustee
and the Issuer that this Note was destroyed, 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.
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, 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
19
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 legal 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 the face hereof, which date and the applicable
redemption price will be specified in the Notice.
If the Issuer shall determine that any payment made outside the United
States by the Issuer or any Paying Agent of principal, premium or interest due
in respect of this Note would, under any present or future laws or regulations
of the United States, be subject to any certification, identification or other
information reporting requirement of any kind, the effect of which is the
disclosure to the Issuer, any Paying Agent or any governmental authority of the
nationality, residence or identity of a beneficial owner of this Note who is a
United States Alien (as defined below) (other than such a requirement (a) that
would not be applicable to a payment made by the Issuer or any Paying Agent (i)
directly to the beneficial owner or (ii) to a custodian, nominee or other agent
of the beneficial owner, or (b) that can be satisfied by such custodian,
nominee or other agent certifying to the effect that such beneficial owner is a
United States Alien; provided that in each case referred to in clauses (a)(ii)
and (b) payment by such custodian, nominee or agent to such beneficial owner is
not otherwise subject to any such requirement), the Issuer shall redeem this
Note, as a whole, at a redemption price equal to 100% of the principal amount
thereof, together with accrued interest to the date fixed for redemption, or,
at the election of the Issuer if the conditions of the next succeeding
paragraph are satisfied, pay the additional amounts specified in such
paragraph. The Issuer shall make such determination and election as soon as
practicable, shall promptly notify the Trustee thereof and shall publish (or
transmit, as applicable) prompt notice thereof (the "Determination Notice")
stating the effective date of such certification, identification or other
information reporting requirements, whether the Issuer will redeem this Note or
has elected to pay the additional amounts specified in the next succeeding
paragraph, and (if applicable) the last date by which the redemption of this
Note must take place, as provided in the next succeeding sentence. If the
Issuer redeems this Note, such redemption shall take place on such date, not
later than one year after the publication of the Determination Notice, as the
Issuer shall elect by notice to the Trustee at least 60 calendar days prior to
the date fixed for redemption or at least 30 calendar days prior to the last
day of the Redemption Notice Period specified on the face hereof. Notice of
such redemption of this Note will be given to the holder of this Note not more
than 60 nor less than 30 calendar days prior to the date fixed for redemption
or within the Redemption Notice Period specified on the face hereof. Such
redemption notice shall include a statement as to the last date by which this
Note to be redeemed may be exchanged for Registered Notes. Notwithstanding the
foregoing, the Issuer shall not so redeem this Note if the Issuer shall
subsequently determine, not less than 30 calendar days prior to the date fixed
for redemption or prior to the last day of the Redemption Notice Period
specified on the face hereof, that subsequent payments would not be subject to
any such certification, identification or other information reporting
requirement, in which case the
20
Issuer shall publish (or transmit, as applicable) prompt notice of such
determination and any earlier redemption notice shall be revoked and of no
further effect. The right of the holder of this Note to exchange this Note for
Registered Notes pursuant to the provisions of this paragraph will terminate at
the close of business of the Principal Paying Agent on the fifteenth day prior
to the date fixed for redemption, and no further exchanges of this Note for
Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph would
be fully satisfied by payment of a backup withholding tax or similar charge,
the Issuer may elect by notice to the Trustee to pay as additional amounts such
amounts as may be necessary so that every net payment made outside the United
States following the effective date of such requirements by the Issuer or any
Paying Agent of principal, premium or interest due in respect of this Note of
which the beneficial owner is a United States Alien (but without any
requirement that the nationality, residence or identity of such beneficial
owner be disclosed to the Issuer, any Paying Agent or any governmental
authority, with respect to the payment of such additional amounts), after
deduction or withholding for or on account of such backup withholding tax or
similar charge (other than a backup withholding tax or similar charge that (i)
would not be applicable in the circumstances referred to in the second
parenthetical clause of the first sentence of the preceding paragraph, or (ii)
is imposed as a result of presentation of this Note for payment more than 15
calendar days after the date on which such payment becomes due and payable or
on which payment thereof is duly provided for, whichever occurs later), will
not be less than the amount provided for in this Note to be then due and
payable. In the event the Issuer elects to pay any additional amounts pursuant
to this paragraph, the Issuer shall have the right to redeem this Note as a
whole at any time pursuant to the applicable provisions of the immediately
preceding paragraph and the redemption price of this Note will not be reduced
for applicable withholding taxes. If the Issuer elects to pay additional
amounts pursuant to this paragraph and the condition specified in the first
sentence of this paragraph should no longer be satisfied, then the Issuer will
redeem this Note as a whole, pursuant to the applicable provisions of the
immediately preceding paragraph.
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 this Note and any
other amounts payable on this Note, after withholding or deduction 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, make any payment of Additional Amounts to any such holder who is
a United States Alien for or on account of:
(a) any present or future 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 for United States federal income tax purposes, and the
United States, including, without limitation, such holder, or such
21
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 or
on behalf of 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, excise 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 or a bank receiving interest under
Section 881(c)(3)(A) of the Internal Revenue Code of 1986, as amended;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding or deduction 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 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 law
implementing or complying with, or introduced in order to conform to, any
European Union Directive on the taxation of savings; 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 the Issuer pay
22
Additional Amounts 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 provides that (a) if an Event of Default (as
defined in the Senior Indenture) due to the default in payment of principal of
or premium, if any, or interest on any series of debt securities issued under
the Senior Indenture, including the series of Senior Global 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 aggregate principal
amount of the outstanding debt securities of each affected series, voting as
one class, by notice in writing to the Issuer and to the Trustee, if given by
the securityholders, may then declare the principal of all debt 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, insolvency or reorganization of the Issuer, shall
have occurred and be continuing, either the Trustee or the holders of not less
than 25% in aggregate principal amount of all outstanding debt securities
issued under the Senior Indenture, voting as one class, by notice in writing to
the Issuer and to the Trustee, if given by the securityholders, 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 of or premium, if any, or interest on such debt
securities) by the holders of a majority in aggregate principal amount of the
debt securities of all affected series then outstanding.
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
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 or for other property (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 or (b) reduce the aforesaid
23
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 or 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 (as defined below) on the date of such payment or, if the Market
Exchange Rate is not available on such date, as 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 or 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 relevant treaty of the European Union, 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 (as defined below) at approximately 11:00 a.m., The City of New York
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.
The "Exchange Rate Agent" shall be Morgan Stanley & Co. International
Limited, unless otherwise indicated on the face hereof.
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.
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. If this Note is listed on
the London Stock Exchange plc and such exchange so requires, the Issuer shall
maintain a Paying Agent in London. If any European Union Directive on the
taxation of savings comes into force, the Issuer will, to the extent possible
as a matter of law, maintain a Paying Agent in a member state of the European
Union that will not be obligated to withhold or deduct tax pursuant to
24
any such Directive or any law implementing or complying with, or introduced in
order to conform to, such Directive. The Issuer may designate other agencies
for the payment of said principal, premium and interest at such place or places
outside the United States (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.
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 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 and 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 holder of this Note.
The Issuer, the Trustee and any agent of the Issuer or the Trustee may
treat the holder of this Note 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 of or
premium, if any, or 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:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, (i) 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 in London 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
25
of the country of the Specified Currency, or (z) if this Note is
denominated in Australian dollars, in Sydney, and (ii) 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");
(b) the term "Market Exchange Rate" means the noon U.S.
dollar buying rate in The City of New York for cable transfers of the
Specified Currency indicated on the face hereof published by the
Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to the holders of
the Notes to be given by publication in an authorized newspaper in the
English language and of general circulation in the Borough of
Manhattan, The City of New York, and London or, if publication in
London is not practical, in an English language newspaper with general
circulation in Western Europe; provided that notice may be made at the
option of the Issuer through the customary notice provisions of the
clearing system or systems through which beneficial interests in this
Note are owned. Such Notices will be deemed to have been given on the
date of such publication (or other transmission, as applicable) or, if
published in such newspapers on different dates, on the date of the
first such publication;
(d) the term "United States" means the United States of
America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its
jurisdiction; and
(e) the term "United States Alien" means any person who is,
for United States federal income tax purposes, (i) a nonresident alien
individual, (ii) a foreign corporation, (iii) a nonresident alien
fiduciary of a foreign estate or trust or (iv) a foreign partnership
one or more of the members of which is, for United States federal
income tax purposes, a nonresident alien individual, a foreign
corporation or a nonresident alien fiduciary or a foreign estate or
trust.
All other 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.
26
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: ------------------------------ ------------------------------
27
[SCHEDULE A](6)
EXCHANGES FOR DEFINITIVE BEARER NOTES OR DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is _____________________.
The following (A) exchanges of (i) portions of this Note for Definitive Bearer
Notes or Registered Notes and (ii) portions of a Temporary Global Bearer Note
for an interest in this Note or (B) (x) redemptions at the option of the Issuer
or (y) repayments at the option of the holder have been made:
Remaining
Principal
Amount
Principal Principal Principal Principal Principal Outstanding
Date of Amount Amount Amount Amount Amount Following Notation Made
Exchange, Exchanged Exchanged Exchanged for Redeemed at Repaid at Such Exchange, by or on
Redemption from Temporary for Definitive Definitive the Option of the Option of Rdemption or Behalf of
or Payment Global Notes Bearer Notes Registered Notes the Issuer the Holder Repayment Paying Agent
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(6) Applies if this Note is not issued as part of, or in relation to, a Unit.
[SCHEDULE A-1](7)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is __________. The following
(A) exchanges of the principal amount of Notes indicated below for the same
principal amount of Notes to be represented by (i) Definitive Bearer Notes or
(ii) Definitive Registered Notes or [(iii) a Global Bearer Note that has been
separated from a Unit (a "Separated Note")](8), (B) exchanges of the principal
amount of Notes that had been represented by (i) a Temporary Global Bearer Note
[or (ii) a Global Bearer Note that is part of a Unit (an "Attached Unit
Note")](9) for an interest in this Note and (C) reductions of the principal
amount of this Note as a result of (i) cancellation upon the application of
such amount to the settlement of Purchase Contracts or the exercise of
Warrants, (ii) redemption at the option of the Issuer or (iii) repayments at
the option of the Holder have been made:
Remaining
Principal
Principal Principal Principal Amount
Date of Amount [Principal [Principal Amount Amount Principal Principal Outstanding Notation
Exchange, Exchanged Amount Amount Exchanged Exchanged Amount Amount Following such Made by
Cancellation From Exchanged Exchanged For For Redeemed Repaid Exchange, or on
Redemption, Temporary From an For Definitive Definitive at the at the Principal Cancellation Behalf of
or Global Attached Separated Bearer Registered Option of Option of Amount Redemption or Paying
Repayment Notes Unit Note](8) Note](7) Notes Notes the Issuer the Holder Cancelled Repayment Agent
- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
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- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
- ----------- --------- ----------- ---------- ---------- ---------- ---------- ---------- --------- ----------- ---------
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(7) This Schedule A-1 needed only if this Note is issued as part of, or in
relation to, a Unit.
(8) Applies only if this Note is attached to a Unit.
(9) Applies only if this Note has been separated from a Unit.