EXHIBIT 4.3
[FORM OF FLOATING RATE NOTE]
[FACE OF NOTE]
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.
REGISTERED PRINCIPAL AMOUNT: ________
No. FLR-__________ CUSIP: ____________
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE MATURITY DATE:
OR BASES: DATE:
IF LIBOR:
[ ] LIBOR Reuters
[ ] LIBOR Telerate
INDEX CURRENCY:
INDEX MATURITY: INITIAL INTEREST INTEREST PAYMENT
RATE: % DATE(S):
SPREAD (PLUS SPREAD MULTIPLIER: % INITIAL INTEREST RESET
OR MINUS): % DATE:
MINIMUM INTEREST MAXIMUM INTEREST INTEREST RESET
RATE: % RATE: % DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT
DATE(S):
INTEREST CATEGORY: AUTHORIZED DENOMINATION:
[ ] Regular Floating Rate Note [ ] $1,000 and integral multiplies thereof
[ ] Floating Rate/Fixed Rate Note Fixed Rate [ ] Other:
Commencement Date:
Fixed Rate Interest: %
[ ] Inverse Floating Rate Note Fixed Interest SPECIFIED CURRENCY:
Rate [ ] United States dollars
[ ] Original Issue Discount Note Issue Price: [ ] Other:
ADDENDUM ATTACHED EXCHANGE RATE AGENT:
[ ] Yes
[ ] No
OTHER PROVISIONS:
Donaldson, Lufkin & Jenrette, Inc., a Delaware corporation
(together with its successors and assigns, the "Company"), for value received,
hereby promises to pay to , or registered
assignees, the principal sum of on the Maturity Date specified
above (except to the extent redeemed or repaid prior to the Maturity Date) and
to pay interest thereon from the Original Issue Date specified above at a rate
per annum equal to the Initial Interest Rate specified above until the first
Interest Reset Date next succeeding the Original Issue Date specified above,
and thereafter at a rate per annum determined in accordance with the
provisions specified on the reverse hereof until the principal hereof is paid
or duly made available for payment (except as provided below). The Company
will pay interest in arrears on each Interest Payment Date (as specified
above) commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date (or any
Redemption Date or Repayment Date) (these and certain other capitalized terms
used herein are defined on the reverse of this Note); provided, however, that
if the Original Issue Date occurs between a Record Date, as defined below, and
the next succeeding Interest Payment Date, interest payments will commence on
the second Interest Payment Date succeeding the Original Issue Date to the
registered holder of this Note on the Record Date with respect to such second
Interest Payment Date; and provided, further, that (i) if an Interest Payment
Date (other than the Maturity Date (or any Redemption Date or Repayment Date))
would fall on a day that is not a Business Day, such Interest Payment Date,
shall be the following day that is a Business Day, except that if the Interest
Rate Basis specified above is LIBOR and such next Business Day falls in the
next calendar month, the Interest Payment Date, Maturity Date (or any
Redemption Date or Repayment Date) shall be the immediately preceding day that
is a Business Day, and (ii) if the Maturity Date (or any Redemption Date or
Repayment Date) falls on a day that is not a Business Day, the required
payment of principal, premium, if any, and interest shall be made on the next
succeeding Business Day with the same force and effect as if made on the date
such payment was due, and no interest shall accrue with respect to such
payment for the period from and after the Maturity Date (or any Redemption
Date or Repayment Date) to the date of such payment on the next succeeding
Business Day.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any Redemption Date or Repayment Date)
will be made in immediately available funds upon surrender of this Note at the
office or agency of such paying agent as the Company may determine maintained
for that purpose in the Borough of Manhattan, The City of New York (a "Paying
Agent"), or at the office or agency of such other Paying Agent as the Company
may determine.
Notwithstanding the foregoing, if an Addendum is attached
hereto or "Other Provisions" apply to this Note as specified above, this Note
shall be subject to the terms set forth in such Addendum or such "Other
Provisions".
Interest on this Note will accrue from 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 the Original Issue Date,
until the principal hereof has been paid or duly made available for payment
(except as provided herein). 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 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 an Interest Payment Date (whether or not a
Business Day) (each such date a "Record Date"); provided, however, that
interest payable on the Maturity Date (or any Redemption Date or Repayment
Date) will be payable to the person to whom the principal hereof shall be
payable.
If the Specified Currency indicated on the face hereof is other
than U.S. dollars, any payment on this Note on an Interest Payment Date or the
Maturity Date (or any Redemption Date or Repayment Date) will be made in U.S.
dollars, as provided below, unless the holder hereof elects by written request
(which request shall also include appropriate wire transfer instructions) to
the Paying Agent at its corporate trust office in The City of New York
received on or prior to the Record Date relating to an Interest Payment Date
or at least 10 days prior to the Maturity Date (or any Redemption Date or
Repayment Date), as the case may be, to receive such payment in such Specified
Currency except as provided on the reverse hereof; provided, that any U.S.
dollar amount to be received by a holder of this Note will be based on the
highest bid quotation in The City of New York received by the Exchange Rate
Agent appointed by the Company and identified above (the "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) for the
purchase by the quoting dealer of such Specified Currency for U.S. dollars for
settlement on such payment date in the aggregate amount of such Specified
Currency payable to all holders of Notes having the same terms as this Note
(including Original Issue Date) scheduled to receive U.S. dollar payment and
at which the applicable dealer commits to execute a contract; provided,
further, that if such bid quotations are not available, such payments shall be
made in such Specified Currency. All currency exchange costs will be borne by
the holder of this Note by deductions from such payments. The holder hereof
may elect to receive payment in such Specified Currency for all such payments
and need not file a separate election for each such payment, and such election
shall remain in effect until revoked by written notice to the Paying Agent at
its corporate trust office in The City of New York received on a date prior to
the Record Date for the relevant Interest Payment Date or at least 10 calendar
days prior to the Maturity Date (or any Redemption Date or Repayment Date), as
the case may be; provided, that such election is irrevocable as to the next
succeeding payment to which it relates; if such election is made as to full
payment on this Note, such election may thereafter be revoked so long as the
Paying Agent is notified of the revocation within the time period set forth
above.
If the Specified Currency indicated on the face hereof is U.S.
dollars, 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; provided,
however, that payments of interest, other than interest due at maturity (or
any Redemption Date or Repayment Date) will be made by United States 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. $5,000,000 (or, if the Specified Currency
specified above is other than U.S. dollars, the equivalent thereof in the
Specified Currency) or more in aggregate principal amount of Notes having the
same Interest Payment Date will be entitled to receive payments of interest,
other than interest due at maturity (or any Redemption Date or Repayment
Date), by wire transfer of immediately available funds to an account within
the United States maintained by the holder of this Note if appropriate wire
transfer instructions in writing have been received by the Paying Agent not
less than 10 days prior to the applicable Interest Payment Date.
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 Authenticating Agent, as defined on the reverse hereof, by
manual signature, this Note shall not be entitled to any benefit under the
Indenture, as defined on the reverse hereof, or be valid or obligatory for any
purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
DONALDSON, LUFKIN & JENRETTE, INC.
[SEAL] By:__________________________________
Title:
By:__________________________________
Title:
Attest:
By:__________________________________
Title:
CERTIFICATE OF AUTHENTICATION
This is one of the Notes
referred to in the within-
mentioned Indenture.
THE CHASE MANHATTAN BANK
as Trustee and Authenticating Agent
By:__________________________________
Authorized Signatory
DATED:
[REVERSE OF NOTE]
DONALDSON, LUFKIN & JENRETTE, INC.
MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized issue of Medium-Term
Notes having maturities of nine months or more from the date of issue (the
"Notes") of the Company. The Notes are issuable under an indenture, dated as
of June 8, 1998 (the "Indenture") between the Company and The Chase Manhattan
Bank, as trustee (the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities of the
Company, the Trustee and holders of the Notes and the terms upon which the
Notes are to be authenticated and delivered. The Chase Manhattan Bank has
been appointed Authenticating Agent and Calculation Agent (the "Authenticating
Agent" and "Calculation Agent", respectively, which terms include any
successor authenticating agent or calculation agent, as the case may be) with
respect to the Notes, and The Chase Manhattan Bank at its corporate trust
office in The City of New York has been appointed the registrar and Paying
Agent 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 Indenture. To the extent not
inconsistent herewith, the terms of the Indenture are hereby incorporated by
reference herein.
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.
This Note will be subject to redemption at the option of the
Company on any date on or after the Initial Redemption Date, if any, specified
on the face hereof, in whole or from time to time in part in increments of
U.S.$1,000 or the minimum Authorized Denomination (provided that any remaining
principal amount hereof shall be at least U.S.$1,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
redemption Percentage Reduction, if any, specified on the face hereof until
the redemption Price is 100% of unpaid principal amount to be redeemed. In
the event of redemption of this Note in part only, a new Note of like tenor
for the unredeemed portion hereof and otherwise having the same terms as this
Note shall be issued in the name of the holder hereof upon the presentation
and surrender hereof.
This Note will be subject to repayment by the Company at the
option of the holder hereof on the Optional Repayment Date(s), if any,
specified on the face hereof, in whole or in part in increments of U.S.$1,000
or the minimum Authorized Denomination (provided that any remaining principal
amount hereof shall be at least U.S.$1,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal
amount to be repaid, together with unpaid interest accrued thereon to the date
fixed for repayment (each, a "Repayment Date"). For this Note to be repaid,
this Note must be received, together with the form hereon entitled "Option to
Elect Repayment" duly completed, by the Trustee at its corporate trust office
not more than 60 nor less than 30 calendar days prior to the Repayment Date.
Exercise of such repayment option by the holder hereof will be irrevocable.
In the event of repayment of this Note in part only, a new Note of like tenor
for the unrepaid portion hereof and otherwise having the same terms as this
Note shall be issued in the name of the holder hereof upon the presentation
and surrender hereof.
If this Note is an Original Issue Discount Note as specified on
the face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity will be equal to the sum of
(i) the Issue Price specified on the face hereof (increased by any accruals of
the Discount, as defined below) and, in the event of any redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and
(ii) any unpaid interest on this Note accrued from the Original Issue Date to
the Redemption Date, Repayment Date or date of acceleration of maturity, as
the case may be. The difference between the Issue Price and 100% of the
principal amount of this Note is referred to herein as the "Discount".
For purposes of determining the amount of Discount that has
accrued as of any Redemption Date, Repayment Date or date of acceleration of
maturity of this Note, such Discount will be accrued so as to cause the yield
on the Note to be constant (computed using the "Constant Yield" method in
accordance with the rules under the Internal Revenue Code of 1986, as
amended). The constant yield will be calculated using a 30-day month,
360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period) and
an assumption that the maturity of this Note will not be accelerated. If the
period from the Original Issue Date to the initial Interest Payment Date (the
"Initial Period") is shorter than the compounding period for this Note, a
proportionate amount of the yield for an entire compounding period will be
accrued. If the Initial Period is longer than the compounding period, then
such period will be divided into a regular compounding period and a short
period, with the short period being treated as provided in the preceding
sentence.
The interest rate borne by this Note will be determined as
follows:
(i) Unless the Interest Category of this Note is specified
on the face hereof as a "Floating Rate/Fixed Rate Note" or
an "Inverse Floating Rate Note", this Note shall be
designated as a "Regular Floating Rate Note" and, except as
set forth below or on the face hereof, shall bear interest
at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the Spread,
if any, and/or (b) multiplied by the Spread Multiplier, if
any, in each case as specified on the face hereof.
Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset
as of each Interest Reset Date specified on the face hereof;
provided, however, that the interest rate in effect for the
period, if any, from the Original Issue Date to the Initial
Interest Reset Date shall be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note", then,
except as set forth below or on the face hereof, this Note
shall bear interest at the rate determined by reference to
the applicable Interest Rate Basis or Bases (a) plus or
minus the Spread, if any, and/or (b) multiplied by the
Spread Multiplier, if any. Commencing on the Initial
Interest Reset Date, the Rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset
Date; provided, however, that (y) the interest rate in
effect for the period, if any, from the Original Issue Date
to the Initial Interest Reset Date shall be the Initial
Interest Rate and (z) the interest rate in effect for the
period commencing on the Fixed Rate Commencement Date
specified on the face hereof to the Maturity Date shall be
the Fixed Interest Rate specified on the face hereof or, if
no such Fixed Interest Rate is specified, the interest rate
in effect hereon on the day immediately preceding the Fixed
Rate Commencement Date.
(iii) If the Interest Category of this Note is specified
on the face hereof as an "Inverse Floating Rate Note", then,
except as set forth below or on the face hereof, this Note
shall bear interest at the Fixed Interest Rate minus the
rate determined by reference to the applicable Interest Rate
Basis or Bases (a) plus or minus the Spread, if any, and/or
(b) multiplied by the Spread Multiplier, if any; provided,
however, that, unless otherwise specified on the face
hereof, the interest rate hereon shall not be less than
zero. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note shall be payable shall
be reset as of each Interest Reset Date; provided, however,
that the interest rate in effect for the period, if any,
from the Original Issue Date to the Initial Interest Reset
Date shall be the Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with
respect to each Interest Rate Basis will be determined in accordance with the
applicable provisions below. Except as set forth above or on the face hereof,
the interest rate in effect on each day shall be (i) if such day is an
Interest Reset Date, the interest rate determined as of the Interest
Determination Date (as defined below) immediately preceding such Interest
Reset Date or (ii) if such day is not an Interest Reset Date, the interest
rate determined as of the Interest Determination Date immediately preceding
the most recent Interest Reset Date.
If any Interest Reset Date would otherwise be a day that is not
a Business Day, such Interest Reset Date shall be postponed to the next
succeeding Business Day, except that if LIBOR is an applicable Interest Rate
basis and such Business Day falls in the next succeeding calendar month, such
Interest Reset Date shall be the immediately preceding Business Day.
The Interest Determination Date pertaining to an Interest Reset
Date for Notes bearing interest calculated by reference to the CD Rate,
Commercial Paper Rate, Federal Funds Rate and Prime Rate will be the second
Business Day preceding such Interest Reset Date. The Interest Determination
Date pertaining to an Interest Reset Date for Notes bearing interest
calculated by reference to LIBOR shall be the second London Business Day
preceding such Interest Reset Date. 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;
provided, however, that if as a result of a legal holiday an auction is held
on the Friday of the week preceding such Interest Reset Date, the related
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 "Calculation Date" pertaining to any Interest Determination
Date will be the earlier of (i) the tenth 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 preceding the applicable Interest
Payment Date or Maturity Date, as the case may be.
Determination of CD Rate. If the Interest Rate Basis specified
on the face hereof is the CD Rate, the CD Rate with respect to this Note shall
be determined on each Interest Determination Date and shall be the rate on
such date for negotiable 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)," or,
if not so published by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate will be the rate
on such Interest Determination Date for negotiable certificates of deposit of
the Index Maturity specified on the face hereof as published by the Federal
Reserve Bank of New York in its daily update of H.15(519) available through
the world-wide web site of the Board of Governors of the Federal Reserve
System at "http:/www.bog.frb.fed.us/releases/H15/update or any successor site
of publication of the Board of Governors ("H.15 Daily Update") under the
heading "Certificates of Deposit." If such rate is not yet published in
either H.15(519) or H.15 Daily Update by 3:00 P.M., New York City time, on
such Calculation Date, then the CD Rate on such Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean of
the secondary market offered rates as of 10:00 A.M., New York City time, on
such Interest Determination Date, 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 as quoted by three leading nonbank dealers in negotiable
U.S. dollar certificates of deposit in The City of New York selected by the
Calculation Agent; provided, however, that if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the rate of interest in effect for the applicable period will be the
same as the CD Rate for the immediately preceding Interest Reset Period (or,
if there was no such Interest Reset Period, the rate of interest payable
hereon shall be the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Interest Rate
Basis specified on the face hereof is the Commercial Paper Rate, the
Commercial Paper Rate with respect to this Note shall be determined on each
Interest Determination Date and shall be the Money Market Yield (as defined
herein) of the rate on such date for commercial paper having the Index
Maturity specified on the face hereof, as such rate shall be published in
H.15(519) under the heading "Commercial Paper-Non-Financial," or if not so
published prior to 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Commercial Paper Rate
shall be the Money Market Yield of the rate on such Interest Determination
Date for commercial paper of the Index Maturity specified on the face hereof
as published in H.15 Daily Update under the heading "Commercial Paper" (with
an Index Maturity of one month or three months being deemed to be equivalent
to an Index Maturity of 30 or 90 days, respectively). If by 3:00 P.M., New
York City time, on such Calculation Date, such rate is not yet available in
either H.15(519) or H.15 Daily Update, then the Commercial Paper Rate shall be
calculated by the Calculation Agent and shall be the Money Market Yield
corresponding to the arithmetic mean of the offered rates as of approximately
11:00 A.M., New York City time, on such Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof, placed
for a non-financial issuer whose bond rating is "AA," or the equivalent, from
a nationally recognized rating agency as quoted by three leading dealers in
commercial paper in The City of New York selected by the Calculation Agent;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the same as the Commercial Paper Rate
for the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
"Money Market Yield" shall be the yield (expressed as a
percentage) calculated in accordance with the following formula:
Money Market Yield = D x 360
---------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for
commercial paper quoted on a bank discount basis and expressed as a decimal
and "M" refers to the actual number of days in the interest period for which
interest is being calculated.
Determination of Federal Funds Rate. If the Interest Rate
Basis specified on the face hereof is the Federal Funds Rate, the Federal
Funds Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the rate on such date for Federal Funds as
published in H.15 Daily Update under the heading "Federal Funds (Effective)."
If such rate is not published in either H.15(519) or H.15 Daily Update by 3:00
P.M., New York City time, on such Calculation Date, the Federal Funds Rate for
such Interest Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds as of 9:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate with respect to such Interest Determination Date will be the same
as the Federal Funds Rate in effect for the immediately preceding Interest
Reset Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Interest Rate Basis specified
on the face hereof is LIBOR, LIBOR with respect to this Note shall be
determined on each Interest Determination Date as follows:
(i) With respect to an Interest Determination Date relating
to a LIBOR Note, LIBOR will be, if "LIBOR Telerate" is
specified in the applicable Pricing Supplement or if such
Pricing Supplement does not specify a source for LIBOR, the
rate for deposits in the London interbank market in the
Index Currency (as defined below) having the Index Maturity
designated in the applicable Pricing Supplement commencing
on the second London Business Day immediately following such
Interest Determination Date that appears on the Designated
LIBOR Page (as defined below) as of 11:00 a.m., London time,
on such Interest Determination Date. If no rate appears on
the Designated LIBOR Page, LIBOR in respect of such Interest
Determination Date will be determined as if the parties had
specified the rate described in clause (ii) below.
(ii) With respect to an Interest Determination Date
relating to a LIBOR Note to which the last sentence of
clause (i) above applies, the Calculation Agent will request
the principal London offices of each of four major reference
banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its
offered quotation for deposits in the Index Currency for the
period of the Index Maturity designated in the applicable
Pricing Supplement commencing on the second London Business
Day immediately following such Interest Determination Date
to prime banks in the London interbank market at
approximately 11:00 a.m., London time on such Interest
Determination Date and in a principal amount that is
representative for a single transaction in such Index
Currency in such market at such time. If at least two such
quotations are provided, LIBOR determined on such Interest
Determination Date will be the arithmetic mean of such
quotations. If fewer than two quotations are provided,
LIBOR determined on such Interest Determination Date will be
the arithmetic mean of the rates quoted at approximately
11:00 a.m. (or such other time specified in the applicable
Pricing Supplement), in the applicable Principal Financial
Center (as defined below), on such Interest Determination
Date for loans made in the Index Currency to leading
European banks having the Index Maturity designated in the
applicable Pricing Supplement commencing on the second
London Business Day immediately following such Interest
Determination Date and in a principal amount that is
representative for a single transaction in such Index
Currency in such market at such time by three major banks in
such Principal Financial Center selected by the Calculation
Agent; provided, however, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this
sentence, LIBOR with respect to such Interest Determination
Date will be LIBOR in effect on such Interest Determination
Date.
"Index Currency" means the currency (including currency units
and composite currencies) specified as Index Currency on the face hereof as
the currency with respect to which LIBOR shall be calculated. If no such
currency is specified as Index Currency on the face hereof, the Index Currency
shall be U.S. dollars.
"Designated LIBOR Page" means the display on Page 3750 (or such
other page as is specified in the applicable Pricing Supplement) of the Dow
Jones Telerate Service for the purpose of displaying the London interbank
offered rates of major banks for the applicable Index Currency (or such other
page as may replace that page on that service for the purpose of displaying
such rates).
Unless provided otherwise in the applicable Pricing Supplement,
"Principal Financial Center" will be the principal financial center of the
country of the specified Index Currency, except that with respect to U.S.
dollars and the European Currency Unit (the "ECU"), the Principal Financial
Center shall be The City of New York and Brussels, respectively.
Determination of Prime Rate. If the Interest Rate Basis
specified on the face hereof is the Prime Rate, the Prime Rate with respect
to this Note shall be determined on each Interest Determination Date and
shall be the rate set forth in H.15(519) for such date opposite the caption
"Bank Prime Loan." If such rate is not yet published by 9:00 A.M. New York
City time, on the Calculation Date, the Prime Rate for such Interest
Determination Date will be the arithmetic mean of the rates of interest
publicly announced by each bank named on the display designated as page
"USPRIME 1" on the Reuters Monitor Money Rate Service (or such other page
as may replace the USPRIME 1 page on such service for the purpose of
displaying the prime rate or base lending rate of major New York City
banks) (the "Reuters Screen USPRIME 1 Page") as such bank's prime rate or
base lending rate as in effect for such Interest Determination Date as
quoted on the Reuters Screen USPRIME 1 Page on such Interest Determination
Date, or, if fewer than four such rates appear on the Reuters Screen
USPRIME 1 Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rate quoted on the basis of the actual number
of days in the year divided by 360 as of the close of business on such
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates.
Determination of Treasury Rate. If the Interest Rate Basis
specified on the face hereof is the Treasury Rate, the Treasury Rate with
respect to this Note shall be determined on each Interest Determination Date
and shall be the rate applicable to the most recent auction of direct
obligations of the United States ("Treasury Bills") having the Index Maturity
specified on the face hereof, as published in H.15(519) under the heading
"Treasury Bills--auction average (investment)," or if not so published by 3:00
P.M., New York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced by
the United States Department of the Treasury. In the event that the results
of the auction of Treasury Bills having the Index Maturity specified on the
face hereof are not published or reported as provided above by 3:00 P.M., New
York City time, on such Calculation Date or if no such auction is held in a
particular week, then the Treasury Rate shall be the rate as published in
H.15(519) under the heading "Treasury Bills -- secondary market," or any
successor publication or heading. In the event such rate is not published by
3:00 p.m., New York City time, on such Calculation Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided, however,
that if the dealers selected as aforesaid by the Calculation Agent are not
quoting bid rates as mentioned in this sentence, the Treasury Rate for such
Interest Reset Date will be the same as the Treasury Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
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 Dates or the Maturity Date (or any
Redemption Date or Repayment Date), as the case may be. Accrued interest
hereon shall be an amount calculated by multiplying the face amount hereof 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. The interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the
Interest Rate Basis is CD Rate, Commercial Paper Rate, Federal Funds Rate,
Prime Rate or LIBOR, as specified on the face hereof, or by the actual number
of days in the year if the Interest Rate Basis is the Treasury Rate, as
specified on the face hereof. All percentages 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 (.0000001), with five
one-millionths of a percentage point rounded upward, and all dollar amounts
used in or resulting from such calculation on this Note will be rounded to the
nearest cent (with one-half cent rounded upward). 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 is unsecured and ranks pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
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, is issuable only in denominations of U.S.
$1,000 or 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 the minimum Authorized Denomination specified on the face
hereof or any amount in excess thereof which is an integral multiple thereof.
In case a Default or an Event of Default with respect to the
Notes, as defined in the Indenture, shall have occurred and be continuing, the
principal hereof and the interest accrued hereon, if any, may be declared, and
upon such declaration shall become, due and payable, in the manner, with the
effect and subject to the conditions provided in the Indenture.
The Indenture contains provisions which provide that, without
prior notice to any holders of Notes, the Company and the Trustee may amend
the Indenture and the Notes of any series with the written consent of the
holders of a majority in principal amount of the outstanding Notes of all
series affected by such amendment (all such series voting as one class), and
the holders of a majority in principal amount of the outstanding Notes of all
series affected thereby (all such series voting as one class) by written
notice to the Trustee may waive future compliance by the Company with any
provision of the Indenture or the Notes of such series; provided that, without
the consent of each holder of the Notes of each series affected thereby, an
amendment or waiver, including a waiver of past defaults, may not: (i) extend
the stated maturity of the principal of, or any sinking fund obligation or any
installment of interest on, such holder's Note, or reduce the principal amount
thereof or the rate of interest thereon (including any amount in respect of
original issue discount), or any premium payable with respect thereto, or
adversely affect the rights of such holder under any mandatory redemption or
repurchase provision or any right of redemption or repurchase at the option of
such holder, or reduce the amount of the principal of an Original Issue
Discount Note that would be due and payable upon an acceleration of the
maturity thereof or the amount thereof provable in bankruptcy, or change any
place of payment where, or the currency in which, any Note of such series or
any premium or the interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the due
date therefor; (ii) reduce the percentage in principal amount of outstanding
Notes of the relevant series the consent of whose holders is required for any
such supplemental indenture, for any waiver of compliance with certain
provisions of the Indenture or certain Defaults and their consequences
provided for in the Indenture; (iii) waive a Default in the payment of
principal of or interest on any Note of such holder; or (iv) modify any of the
provisions of the Indenture governing supplemental indentures with the consent
of noteholders except to increase any such percentage or to provide that
certain other provisions of the Indenture cannot be modified or waived without
the consent of the holder of each outstanding Note affected thereby.
It is also provided in the Indenture that, subject to certain
conditions, the holders of at least a majority in principal amount of the
outstanding Notes of all series affected (voting as a single class), by notice
to the Trustee, may waive an existing Default or Event of Default with respect
to the Notes of such series and its consequences, except a Default in the
payment of principal of or interest on any Note or in respect of a covenant
or provision of the Indenture which cannot be modified or amended without the
consent of the holder of each outstanding Note affected. Upon any such
waiver, such Default shall cease to exist, and any Event of Default with
respect to the Notes of such series arising therefrom shall be deemed to have
been cured, for every purpose of the Indenture; but no such waiver shall
extend to any subsequent or other Default or Event of Default or impair any
right consequent thereto.
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 Company for
making payments thereof due to the imposition of exchange controls or other
circumstances beyond the control of the Company 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 Company 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 of the most recent practicable
date. Any payment made under such circumstances in U.S. dollars where the
required payment is in a Specified Currency other than U.S. dollars will not
constitute an Event of Default.
If, pursuant to the treaty (establishing the European Community
(the "EC"), as amended by the treaty on European Union (the "Treaty"), one or
more of the Austrian schilling, Belgian franc, Danish krone, Dutch guilder,
Finish markka, French franc, German mark, Greek drachma, Irish pound, Italian
lire, Luxembourg franc, Pound sterling, Portuguese escudo, Spanish peseta, or
Swedish krona is replaced by the ECU as a currency in its own right, then all
payments in respect of this Note shall be effected in ECU as a currency in its
own right in conformity with legally applicable measures taken pursuant to, or
by virtue of, the Treaty and such payment will not constitute an Event of
Default. References herein to the ECU as a currency in its own right shall be
construed as including references to the Euro.
If, pursuant to the Treaty or EC law, other changes are made by
the EC to the nature or composition of the ECU, references herein to the ECU
shall be construed as references to the ECU as so changed.
If payment in respect of this Note is required to be made in
the ECU and the ECU is no longer used as either the unit of account of the EC
or a currency in its own right, replacing all or some of the currencies of the
member countries of the EC, then the Company or its agent shall, on or about
the first Business Day on which the ECU is not so used, choose a substitute
currency (the "Chosen Currency"), which shall be a component currency of the
ECU or U.S. dollars, in which all payments in respect of this Note shall be
made. In the event that an agent of the Company chooses such Chosen Currency,
such choice shall be made without liability after consultation with the
Company and having regard to the availability to the Company of the relevant
currency. Notice of the Chosen Currency so selected shall be mailed to the
registered holder of this Note.
The amount of each payment in a Chosen Currency shall be
computed as of the fourth Business Day prior to each date on which payment is
due on the basis of the equivalent of the ECU in such Chosen Currency. The
equivalent of the ECU in a Chosen Currency as of any date (the "Day of
Valuation") shall be determined by the Exchange Rate by (i) aggregating the
U.S. dollar equivalents of the amounts and components which composed the ECU
(the "Components") as of the last date on which the ECU was used as the unit
of account of the EC and (ii) if the Chosen Currency is a currency other than
U.S. dollars, calculating the equivalent in the Chosen Currency of such
aggregate amount in U.S. dollars. The U.S. dollar equivalent of each of the
Components shall be determined by the Exchange Rate Agent on the basis of the
middle spot delivery quotations prevailing at 2:30 p.m., Brussels time, on the
Day of Valuation, as obtained by the Exchange Rate Agent from one or more
major banks, as selected by the Company or its agent, in the country of issue
of the component currency in question. If no direct quotations are available
for a Component as of a Day of Valuation from any of the banks selected for
such purpose, the Exchange Rate Agent shall use the most recent direct
quotations for such component obtained by it or on its behalf, provided that
such quotations were prevailing in the country of issue not more than two
Business Days before such Day of Valuation, unless the Company or its agent
decides that the equivalent so calculated is less representative than the U.S.
dollar equivalent calculated on the basis of cross rates derived from the
middle spot delivery quotations for such component currency and for the U.S.
dollar prevailing at 2:30 p.m., Brussels time, on the Day of Valuation, as
obtained by or on behalf of the Exchange Rate Agent from one or more major
banks, as selected by the Company or its agents, in a country other than the
country of issue of such component currency, in which case the Exchange Rate
Agent shall determine the U.S. dollar equivalent of such Component on the
basis of such cross rates. Unless otherwise specified by the Company or its
agent, if there is more than one market for dealing in any component currency
by reason of foreign exchange regulations or for any other reason, the market
to be referred to in respect of such currency shall be that upon which a
non-resident issuer of notes denominated in such currency would purchase such
currency in order to make payments in respect of such notes.
All determinations referred to above made by the Company or its
agents shall be at its 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 Company 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 Company may designate other agencies for the payment of
said principal, premium, if any, and interest at such place or places (subject
to applicable laws and regulations) as the Company may decide. So long as
there shall be any such agency, the Company shall keep the Trustee advised of
the names and locations of such agencies, if any are so designated.
No provision of this Note or of the Indenture shall alter or
impair the obligation of the Company, which is absolute and unconditional, to
pay the principal of, premium, if any, and interest on this Note at the time,
place, and rate, and in the coin or currency, herein and in the Indenture
prescribed unless otherwise agreed between the Company and the registered
holder of this Note.
Upon due presentment for registration of transfer of this Note,
a new Note or Notes of authorized denominations for an equal aggregate
principal amount will be issued to the transferee in exchange therefor,
subject to the limitations provided in the Indenture, without charge except
for any tax or other governmental charge imposed in connection therewith.
Prior to due presentment of this Note for registration of
transfer, the Company or any agent of the Company, the registrar of the Notes
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
neither the Company, the Registrar, the Trustee nor 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 the interest on, this Note, for any claim based hereon,
or otherwise in respect hereof, or based on or in respect of the Indenture or
any indenture supplemental thereto, against any incorporator, shareholder,
officer or director, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company 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 (without regard to the
conflicts of law principles thereof).
As used herein:
(a) the term "Business Day" means any day that is not a
Saturday or Sunday and that is not a day on which banking institutions are
generally authorized or obligated by law, regulation or executive order to
close in The City of New York and any other place of payment with respect to
the applicable Notes and (i) with respect to Notes bearing interest calculated
by reference to LIBOR, "Business Day" shall also include a London Business
Day, (ii) with respect to Notes denominated in a Specified Currency other than
U.S. dollars or the ECU, "Business Day" shall not include a day on which
banking institutions are generally authorized or obligated by law, regulation
or executive order to close in the principal financial center of the country
of the Specified Currency, or (iii) with respect to Notes denominated in the
ECU, "Business Day" shall also include a day that is designated as an ECU
settlement day by the ECU Banking Association in Paris; provided that after
the start of the third stage of the European economic and monetary union
(expected to be January 1, 1999), the foregoing reference to an "ECU settlement
day" shall be read as a reference to any day which the TransEuropean Real-Time
Gross Settlement Express Transfer (TARGET) System is in place.
(b) the term "London Business Day" means any day on which
dealings in deposits in the Specified Currency are transacted in the London
interbank market;
(c) the term "Market Exchange Rate" shall mean the noon U.S.
dollar buying rate in The City of New York for cable transfers as published by
the Federal Reserve Bank of New York;
(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) all other terms used in this Note which are defined in the
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Indenture.
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......................
(Cust) (Minor)
Under Uniform Gifts to Minors Act.......................................
(State)
Additional abbreviations may also be used though not in the above list.
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
______________________________________________________________________________
______________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING 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 Company, with full
______________________________________________________________________________
power of substitution in the premises.
Signature______________________________
Signature Guarantee____________________
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.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) 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 shall be increments of $1,000 or such
minimum Authorized Denomination indicated on the face hereof) which the holder
elects to have repaid: __________________; and specify the denomination or
denominations (which shall not be less than $1,000 or such 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.