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EXHIBIT 4.12
CUSIP NO.
REGISTERED NO. FIXR. PRINCIPAL AMOUNT:
FEDERAL-MOGUL CORPORATION
MEDIUM-TERM NOTE, SERIES A
Due Nine Months or More from Date of Issue
(Fixed Rate)
[INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY -- THIS
SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER
REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A
DEPOSITARY. THIS GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN
THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS
SECURITY (OTHER THAN A TRANSFER OF THIS SECURITY 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) MAY BE REGISTERED EXCEPT IN
SUCH LIMITED CIRCUMSTANCES.
UNLESS THIS SECURITY 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
SECURITY ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN
LIEU OF, THIS SECURITY 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 HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH ON THE
REVERSE HEREOF:
PRINCIPAL AMOUNT:
ORIGINAL ISSUE DATE: INTEREST RATE: STATED MATURITY:
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT IN U.S. AUTHORIZED DENOMINATIONS
DOLLARS (only applicable if Specified
Currency is other than U.S. dollars): (if Specified Currency is U.S. dollars):
[ ] Yes [ ] No $1,000 and any integral multiple
$1,000 in excess thereof
INDEXED CURRENCY:
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(if Specified Currency is other than U.S.
dollars):
CURRENCY DETERMINATION THIS SECURITY IS A:
AGENT:
[ ] Global Security
[ ] Certificated Security (only
applicable if Specified Currency is
other than U.S. dollars)
INTEREST PAYMENT DATES:
OPTIONAL REDEMPTION: INITIAL REDEMPTION DATE: REDEMPTION PRICE(S): Initially ___%
of Principal Amount and declining by
[ ] Yes [ ] No ___% of the Principal Amount on each
anniversary of the Initial Redemption
Date until the Redemption Price is
100% of the Principal Amount
OPTION TO ELECT REPAYMENT: OPTIONAL REPAYMENT DATE(S): OPTIONAL REPAYMENT PRICE(S):
[ ] Yes [ ] No
REPAYMENT PROVISIONS:
If this Security was issued with "original issue discount" for
purposes of Section 1273 of the Internal Revenue Code of 1986, as amended, the
following shall be completed:
ORIGINAL ISSUE DISCOUNT TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a
SECURITY: percentage of aggregate principal amount):
[ ] Yes [ ] No
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID: METHOD USED TO DETERMINE YIELD FOR
INITIAL ACCRUAL PERIOD:
[ ] Approximate [ ] Exact
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FEDERAL-MOGUL CORPORATION, a corporation duly organized and
existing under the laws of Michigan (herein called the "Company", which term
includes any successor Person under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to
__________________________ or registered assigns, the principal sum of
_____________________________ on the Stated Maturity shown above, and to pay
interest thereon from and including the Original Issue Date shown above or from
and including the last date in respect of which interest has been paid, as the
case may be, to, but excluding, the next succeeding Interest Payment Date.
Interest will be paid on the Interest Payment Dates shown above, commencing
with the first such Interest Payment Date next succeeding the Original Issue
Date shown above (except as provided below), at the rate per annum specified
above, until the principal hereof is paid or made available for payment, and
interest shall accrue on any overdue principal and on any overdue installment
of interest (to the extent that the payment of such interest shall be legally
enforceable) at the rate per annum in effect at the time such principal or
installment of interest, as the case may be, was due and payable. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will, as provided in such Indenture, 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 Regular Record Date for such interest, which shall be
the May 31 or November 30 (whether or not a Business Day, as defined), as the
case may be, next preceding such Interest Payment Date; provided, however, that
interest payable at the Stated Maturity or upon earlier redemption or repayment
will be payable to the Person to whom principal shall be payable. Payments of
principal and interest on Notes for which payments of principal and interest
are made in equal installments over the life of the security ("Amortizing
Notes"), will be made either quarterly on each March 15, June 15, September 15
and December 15 or semiannually on each June 15 and December 15 as set forth in
the applicable Pricing Supplement, and at Stated Maturity or upon earlier
redemption or repayment. Such payments will be payable to the person in whose
name such Amortizing Note is registered at the close of business on the
fifteenth day (whether or not a Business Day) next preceding the respective
Interest Payment Date. If this Note was originally issued between a regular
record date and an Interest Payment Date, the first payment of interest on this
Note will be made on the Interest Payment Date following the next succeeding
Regular Record Date to the Holder of this Note on such next succeeding Regular
Record Date. Any interest not punctually paid or duly provided for shall be
payable as provided in the Indenture.
If this Note is denominated in a Specified Currency other than
U.S. dollars, then the Holder may, by delivery of a written request to the
Paying Agent (as defined) at its principal office on or prior to the applicable
Regular Record Date or at least 15 days prior to the Stated Maturity, as the
case may be, elect to receive all such payments in U.S. dollars. Such election
will remain in effect until revoked by written notice received by the Paying
Agent not later than the applicable Regular Record Date or at least 15 days
prior to the Stated Maturity, as the case may be (but no such revocation may be
made with respect to payments made on this Note if an Event of Default has
occurred with respect hereto or upon the giving of a notice of redemption). In
addition, if bid quotations for U.S. dollars of the type specified on the
reverse side hereof are not available, the Currency Determination Agent (which
shall be the Company unless otherwise set forth above) will be unable to
exchange the Specified Currency for U.S. dollars and payments of principal and
interest will be made in the Specified Currency. If the Specified Currency is
unavailable due to the imposition of exchange controls or to other
circumstances beyond the Company's control, payments will be made in U.S.
dollars as described on the reverse side hereof.
Payments in U.S. dollars of interest on this Note (other than
interest payable at the Stated Maturity or upon earlier redemption or
repayment) will be made by mailing a check to the Holder at the address of the
Holder appearing in the Security Register on the applicable Regular Record
Date. Principal and interest payable in U.S. dollars at the Stated Maturity or
upon earlier redemption or
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repayment in respect of this Note will be paid in immediately available funds
upon surrender of this Note at the principal office of the Paying Agent in
Chicago, Illinois accompanied by wire transfer instructions. Payments in a
Specified Currency other than U.S. dollars of interest and principal on this
Note will be made by wire transfer to an account with a bank located in the
country issuing the Specified Currency (or with respect to Notes denominated in
European Currency Units, or "ECUs," Brussels), as shall have been designated by
filing the appropriate information with the Trustee at its Corporate Trust
Office at least 15 days prior to the Interest Payment Date or Stated Maturity,
as the case may be, by the Holder, provided that, in the case of payment
principal of (and premium, if any) and any interest due at the Stated Maturity,
the Note is presented to the Paying Agent in time for the Paying Agent to make
such payments in such funds in accordance with its normal procedures.
Interest will be computed on the basis of a 360-day year of
twelve 30-day months.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof and such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
FEDERAL-MOGUL CORPORATION
By:___________________________
Title:
(Corporate Seal)
Attest:
By:________________________________
Trustee's Certificate of Authentication
This is one of the Securities of the
series described herein and referred
to in the within-mentioned Indenture.
CONTINENTAL BANK, As Trustee
By:________________________________
Authorized Signatory
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[REVERSE SIDE OF SECURITIES]
FEDERAL-MOGUL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Fixed Rate)
Section 1. General. This Note is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the Company
(herein called the "Securities"), of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture, dated as of August
12, 1994 (the "Indenture"), between the Company and Continental Bank, as
Trustee (the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Notes. The Securities may be issued in one or
more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, and may
otherwise vary as in the Indenture provided. This Note is one of a series
designated as "Medium-Term Notes, Series A" of the Company, limited in
aggregate principal amount to U.S. $200,000,000, (or, if Notes of this series
are to be Original Issue Discount Notes or are to be denominated in one or more
Specified Currencies or with the amount payable in respect of principal of or
any premium or interest to be determined by reference to the value, rate or
price of one or more specified indices ("Indexed Notes"), such principal amount
as shall result in an aggregate initial offering price of Notes equivalent to
no more than $200,000,000), or in such lesser amount as may be reduced by the
sale of Securities of another series. References herein to "Notes" shall mean
the Notes of said Series A.
Section 2. Payments. (a) Interest on this Note will be payable
semi-annually each June 15 and December 15 or as otherwise set forth herein
(the "Interest Payment Dates") and at the Stated Maturity or upon earlier
redemption or repayment.
Interest payments on each Interest Payment Date for this Note will
include accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid, as the case
may be, to, but excluding, such Interest Payment Date, except that at the
Stated Maturity the interest payments will include accrued interest from and
including the Original Issue Date, or from and including the last date in
respect of which interest has been paid, as the case may be, to, but excluding,
the Stated Maturity.
(b) If this Note is denominated in other than U.S. dollars and if the
Holder has made the election described in paragraph (c) below, payment in
respect of this Note shall be made in U.S. dollars based on the highest
indicated bid quotation for the purchase of U.S. dollars for the Specified
Currency obtained by the Currency Determination Agent at approximately 11:00
A.M., New York City Time, on the second Business Day next preceding the
applicable date (the "Conversion Date") from the bank composite or
multi-contributor pages of the Quoting Source for three (or two if three are
not available) major banks in The City of New York. The first three (or two)
such banks selected by the Currency Determination Agent which are offering
quotes on the Quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on the second
Business Day next preceding the applicable payment date, such payment will be
based on the noon buying rate in The City of New York for cable transfers for
such Specified Currency as certified for customs purposes by the Federal
Reserve Bank of New York (the "Market Exchange Rate") as of the second Business
Day next preceding the applicable payment
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date. If the Market Exchange Rate for such date is not then available, such
payment will be made in the Specified Currency, unless such Specified Currency
is unavailable due to the imposition of exchange controls or to other
circumstances beyond the Company's control, in which case payment will be made
as described in paragraph (d) below. As used herein, the "Quoting Source"
means Reuters Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that such service is not available, Telerate
Monitor Foreign Exchange Service, or if the Currency Determination Agent
determines that neither service is available, such comparable display or other
comparable manner of obtaining quotations as shall be agreed between the
Company and the Currency Determination Agent. All currency exchange costs
associated with any payment in U.S. dollars on this Note shall be borne by the
Holder hereof by deductions from such payments.
As used herein, "Business Day", means any Monday, Tuesday, Wednesday,
Thursday or Friday that in the Place of Payment is not a day on which banking
institutions are authorized or required by law, regulation or executive order
to close.
(c) If this Note is denominated in other than U.S. dollars, the Holder
of this Note may elect to receive all such payments in U.S. dollars as
described in paragraph (b) above by delivery of a written request to the Paying
Agent at its principal office which must be received by the Paying Agent on or
prior to the applicable record date or at least 15 calendar days prior to the
Stated Maturity, as the case may be. Such election shall remain in effect
unless and until revoked by written notice to the Paying Agent, but the Paying
Agent must receive written notice of any such revocation on or prior to the
applicable record date or at least 15 calendar days prior to the Stated
Maturity, as the case may be (but no such revocation may be made with respect
to payments made on this Note if an Event of Default has occurred with respect
hereto or upon the giving of a notice of redemption). In the absence of
manifest error, all determinations by the Currency Determination Agent shall be
final and binding on the Company and the Holder of this Note.
(d) If payment of this Note is required to be made in a Specified
Currency (e.g. ECUs) other than U.S. dollars and on a payment date with respect
to this Note such currency is unavailable, in the good faith judgment of the
Company, due to the imposition of exchange controls or other circumstances
beyond the Company's control, then all payments in respect of this Note shall
be made in U.S. dollars until such currency unit is again available. 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 under the Indenture. The amount of each payment of U.S.
dollars shall be computed on the basis of the equivalent of the currency unit
in U.S. dollars, which shall be determined by the Currency Determination Agent
on the following basis. The component currencies of the currency unit for this
purpose (the "Component Currencies") shall be the currency amounts that were
components of the currency unit as of the Conversion Date. The equivalent of
the currency unit in U.S. dollars shall be calculated by aggregating the U.S.
dollar equivalents of the Component Currencies. The U.S. dollar equivalent of
each of the Component Currencies shall be determined by the Currency
Determination Agent on the basis of the Market Exchange Rate for each such
Component Currency that is available as of the third Business Day prior to the
date on which the relevant payment is due and for each such Component Currency
that is unavailable, if any, as of the Conversion Date for such Component
Currency.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies shall be replaced by an amount in such single currency equal
to the sum of the amounts of the consolidated Component Currencies expressed in
such single currency. If any Component Currency is divided into two or more
currencies, the
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amount of the original Component Currency shall be replaced by the amounts of
such two or more currencies, the sum of which shall be equal to the amount of
the original Component Currency.
All determinations referred to above made by the Currency
Determination Agent shall be at its sole discretion (except to the extent
expressly provided herein or on the face hereof that any determination is
subject to approval by the Company) and, in the absence of manifest error,
shall be conclusive for all purposes and binding on the Holder of this Note and
the Company, and the Currency Determination Agent shall have no liability
therefor.
(e) All percentages resulting from any calculations under this Note
will be rounded, if necessary, to the nearest one hundred thousandth of a
percentage point (with five one-millionths of one percentage point being
rounded upward) and all currency unit amounts used in or resulting from any
such calculation in respect of the Notes will be rounded to the nearest
one-hundredth of a unit (with five one-thousandths being rounded upward).
(f) Until the Notes are paid or payment is duly provided for, the
Company will, at all times, maintain a paying agent (the "Paying Agent")
capable of performing the duties described herein to be performed by the Paying
Agent. The Company has initially appointed the Trustee as the Paying Agent.
The Company will notify the Holders of such Notes, in accordance with the
Indenture, of any change in the Paying Agent or its address.
Section 3. Redemption. If so specified in the face hereof, the
Company may at its option redeem this Note in whole or from time to time in
part on or after the date designated as the Initial Redemption Date on the face
hereof at prices declining from a premium specified on the face hereof, if any,
to par together with accrued interest to the date of redemption; provided,
however, that interest installments due prior to the date fixed for redemption
will be payable to the Holder of record at the close of business on the
applicable Regular Record Date. The Company may exercise such option by
causing a notice of such redemption to be mailed to each Holder by first class
mail, postage prepaid, at least 30 but not more than 60 days prior to the date
of redemption. In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof. If less than all of the Notes
with like tenor and terms to this Note are to be redeemed, the Notes to be
redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate.
Section 4. Repayment. If so specified on the face hereof, this Note
will be repayable in whole or in part prior to the Stated Maturity at the
option of the Holder on the Optional Repayment Dates shown on the face hereof
at a price equal to 100% of the principal amount hereof or, if this Note is a
Discounted Security (as specified on the face hereof), at the applicable Option
Repayment Price shown on the face hereof, together with accrued interest to the
date of repayment; provided, however, that interest installments due prior to
the date fixed for repayment will be payable to the Holder of record at the
close of business on the applicable Regular Record Date. Any repayment in part
will be in increments of $1,000 or the minimum denomination specified on the
face hereof (provided that any remaining principal amount thereof shall be at
least $1,000 or such minimum denomination). For any Note to be repaid, such
Note must be received, together with the form thereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its Corporate Trust Office (or
such other address of which the Company shall from time to time notify the
Holders) not more than 60 nor less than 30 days prior to the date of repayment.
Exercise of such repayment option by the Holder will be irrevocable.
In the case of Book-Entry Notes represented by a Global Security or
Securities held by or on behalf of the Depositary, and registered in the name
of the Depositary or the Depositary's nominee,
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the option for repayment may be exercised by the applicable participant that
has an account with the Depositary, on behalf of the beneficial owners of the
Global Security or Securities representing such Book-Entry Notes, by delivering
a written notice substantially similar to the above mentioned form to the
Trustee at its Corporate Trust Office (or such other address of which the
Company shall from time to time notify the Holders), not more than 60 nor less
than 30 days prior to the date of repayment. Notices of elections from
participants on behalf of beneficial owners of the Global Security or
Securities representing such Book-Entry Notes to exercise their option to have
such Book-Entry Notes repaid must be received by the Trustee by 5:00 P.M., New
York City time, on the last day for giving such notice. In order to ensure
that a notice is received by the Trustee on a particular day, the beneficial
owner of the Global Security or Securities representing such Book-Entry Notes
must so direct the applicable participant before such participant's deadline
for accepting instructions for that day. All notices shall be executed by a
duly authorized officer of such participant (with signatures guaranteed) and
shall be irrevocable. In addition, beneficial owners of the Global Security or
Securities representing Book-Entry Notes shall effect delivery at the time such
notices of election are given to the Depositary by causing the applicable
participant to transfer such beneficial owner's interest in the Global Security
or Securities representing such Book-Entry Notes, on the Depositary's records,
to the Trustee.
Section 5. Sinking Fund. Unless otherwise specified on the face
hereof, the Notes will not be subject to any sinking fund.
Section 6. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event of redemption or repayment, or declaration of
acceleration following an Event of Default, prior to the Stated Maturity hereof
in lieu of the principal amount due at the Stated Maturity hereof shall be the
Amortized Face Amount of this Note as of the redemption date, the date of
repayment or the date of declaration of acceleration, as the case may be. The
"Amortized Face Amount" of this Note shall be the amount equal to the sum of
(i) the principal amount of such Note multiplied by the Issue Price (expressed,
for this purpose, as a percentage of the principal amount of the Note) set
forth on the face hereof plus (ii) the portion of the difference between the
dollar amount determined pursuant to the preceding clause (i) and the principal
amount of such Note that has accrued at the yield to maturity set forth on the
face hereof (computed in accordance with generally accepted financial
practices) to such date of declaration, but in no event shall the Amortized
Face Amount of an Original Issue Discount Note exceed its principal amount.
Section 7. Events of Default. In case an Event of Default, as defined
in the Indenture, with respect to the Notes shall have occurred and be
continuing, the Trustee or Holders of at least 25% in principal amount of the
Notes outstanding may declare the principal amount of all the Notes, and upon
such declaration such principal amount of all the Notes shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
Section 8. Modifications and Waivers. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Notes of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Notes at the time Outstanding of
each series to be affected. The Indenture also contains provisions permitting,
with certain exceptions as therein provided, the Holders of not less than a
majority in principal amount of the Notes of each series at the time
Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive
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and binding upon such Holder and upon all future Holders of this Note and of
any Note issued upon the registration of transfer hereof or in exchange hereof
or in lieu hereof, whether or not notation of such consent or waiver is made
upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the right of the Holder of this Note,
which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and interest on this Note at the times, places and rate,
and in the coin or currency, herein prescribed.
Section 9. Authorized Denominations. Notes are issuable in registered
form without coupons in the minimum denomination of $1,000, or the equivalent
thereof in the Specified Currency, and in any larger amount that is an integral
multiple of $1,000. Notes may be exchanged by the Holder hereof without charge
except for any tax or other governmental charge imposed in connection
therewith, for a like aggregate principal amount of Notes of other authorized
denominations in the manner and subject to the limitations provided in the
Indenture at the office or agency to be maintained by the Company for such
purpose.
Section 10. Registration of Transfer. Upon due presentment for
registration of transfer of this Note at the office or agency of the Company
maintained for such purpose one or more new 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.
If this Note is a Global Security (as specified on the face hereof),
this Note is exchangeable only if (w) the Depositary notifies the Company and
the Trustee in writing that it is unwilling or unable to continue as Depositary
for this Global Security or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor Depositary is not appointed by the Company within 90
days, (x) the Company in its sole discretion determines that this Note shall be
exchangeable for certificated Notes in registered form and delivers to the
Trustee a written order as described in the Indenture that this Note shall be
so exchangeable, or (y) there shall have occurred and be continuing an Event of
Default or an event which, with the lapse of time or the giving of notice, or
both, would constitute an Event of Default with respect to the Global
Securities represented hereby or (z) there shall exist such other
circumstances, if any, as specified for this purpose as contemplated by Section
301 of the Indenture, provided that this permanent Global Security shall be
surrendered by the Depositary, or such other depositary as shall have been
specified as provided in the Indenture, to the Trustee, as the agent for such
purpose, to be exchanged, in whole or in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of this permanent Global Security, an equal aggregate principal
amount of definitive Securities, executed by the Company, of the same series of
authorized denominations and of like tenor as the portion of this Global
Security to be exchanged, which shall be in the form of registered Securities
as provided in the Company's written order as described in the Indenture.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, this global Note other than
pursuant to clauses (w), (x), (y) or (z) above, shall be authenticated and
delivered in the form of, and shall be, a Global Security. Except as provided
above, owners of beneficial interests in this permanent global Note will not be
entitled to receive physical delivery of Notes in certificated registered form
and will not be considered the Holders thereof for any purpose under the
Indenture.
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Section 11. Owners. Prior to due presentment for registration of
transfer of this Note, the Company, the Trustee, any Paying Agent and the
Security Registrar may deem and treat the registered Holder hereof as the
absolute owner of this Note (whether or not this Note shall be overdue and
notwithstanding any notation of ownership or other writing hereon), for the
purpose of receiving payment of, or on account of, the principal hereof, and,
subject to the provisions on the face hereof, interest hereon, and for all
other purposes, and neither the Company nor the Trustee nor any Paying Agent
nor any Security Registrar shall be affected by any notice to the contrary.
Section 12. Defeasance; Proceedings. The Indenture contains
provisions, which apply to this Note, for defeasance of (i) the entire
indebtedness of this Note and (ii) certain restrictive covenants, subject in
either case to compliance by the Company with conditions set forth in the
Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than 25% in principal amount of
the Notes of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Notes of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
Section 13. Definitions. All capitalized terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them
therein.
Section 14. Governing Law. This Note shall be governed and construed
in accordance with the law of the State of New York.
-6-
12
OPTION TO ELECT REPAYMENT
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay the principal amount of this Note or portion hereof
designated at the Optional Repayment Price indicated on the face hereof.
Dated:_____________ _______________________________________________
Signature
Sign exactly as name appears on the front of
this Security [SIGNATURE GUARANTEE -
required only if Securities are to be issued and
delivered to other than the registered holder].
Principal amount to be repaid, Fill in for registration of Securities if
if amount to be repaid is less to be issued otherwise than to the then
principal amount of this Security registered holder:
(principal amount remaining must
be an authorized denomination)
Name:__________________________________
$__________________________ Address:_______________________________
_______________________________
(Please print name and address
including zip code)
SOCIAL SECURITY OR OTHER TAXPAYER ID
NUMBER
______________________________________
-7-
13
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 TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE OF
ASSIGNEE
_______________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _______________ attorney to transfer said Note on the books of the
Company, with full power of substitution in the premises.
Dated:
________________________
Signature
-8-
14
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
-9-
15
CUSIP NO.
REGISTERED NO. FLR PRINCIPAL AMOUNT:
_________________
FEDERAL-MOGUL CORPORATION
MEDIUM-TERM NOTE, SERIES A
Due Nine Months or More from Date of Issue
(Floating Rate)
[INSERT IF THE SECURITY IS TO BE A GLOBAL SECURITY -- THIS SECURITY IS A
GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND
IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
GLOBAL SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A
PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS SECURITY
(OTHER THAN A TRANSFER OF THIS SECURITY 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) MAY BE REGISTERED EXCEPT IN SUCH LIMITED
CIRCUMSTANCES.
UNLESS THIS SECURITY 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 SECURITY
ISSUED UPON REGISTRATION OF TRANSFER OF, OR IN EXCHANGE FOR, OR IN LIEU OF,
THIS SECURITY 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 HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED
UNDER THE APPROXIMATE METHOD BELOW) WILL BE
COMPUTED SOLELY FOR PURPOSES OF APPLYING THE
FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES
16
THE FOLLOWING SUMMARY OF TERMS IS SUBJECT TO THE INFORMATION SET FORTH ON THE
REVERSE HEREOF:
ISSUE PRICE:
ORIGINAL ISSUE DATE: INITIAL INTEREST RATE: Stated Maturity :
SPECIFIED CURRENCY: OPTION TO ELECT PAYMENT IN U.S. AUTHORIZED DENOMINATIONS
DOLLARS (only applicable if
Specified Currency is other than (if Specified Currency is U.S. dollars):
U.S. dollars):
[ ] Yes [ ] No $1,000 and any integral multiple of
$1,000 in excess thereof
INDEXED CURRENCY
(if Specified Currency is other than U.S. dollars):
CURRENCY DETERMINATION THIS SECURITY IS A:
AGENT:
[ ] Global Security
[ ] Certificated Security (only applicable if
Specified Currency is other than U.S. dollars)
INTEREST RESET PERIOD: INTEREST RESET DATES: INTEREST DETERMINATION DATES:
CALCULATION DATES: ACCRUED INTEREST FACTOR:
INTEREST PAYMENT PERIOD: INTEREST PAYMENT DATES:
INDEX MATURITY: SPREAD (plus or minus): SPREAD MULTIPLIER:
MAXIMUM RATE: MINIMUM RATE:
CALCULATION AGENT: BASE RATE: (check one)
[ ] Commercial Paper Rate
[ ] Federal Funds Rate
[ ] CD Rate
[ ] 11th District Cost of Funds Rate
[ ] Kenny Rate
[ ] LIBOR
-2-
17
EXCHANGE RATE AGENT: [ ] LIBOR REUTERS
[ ] LIBOR TELERATE
[ ] Prime Rate
[ ] Treasury Rate
[ ] CMT Rate
[ ] Other
(see attached)
OPTIONAL REDEMPTION: INITIAL REDEMPTION DATE: REDEMPTION PRICES(S): Initially ___% of
[ ] Yes [ ] No Principal Amount and declining by ___% of the
Principal Amount on each anniversary of the
Initial Redemption Date until the Redemption Price
is 100% of the Principal Amount
OPTION TO ELECT REPAYMENT: OPTIONAL REPAYMENT DATE(S): OPTIONAL REPAYMENT PRICE(S):
[ ] Yes [ ] No
REPAYMENT PROVISIONS:
EXTENDIBLE MATURITY NOTE: AMORTIZING NOTE: DISCOUNTED SECURITY:
[ ] Yes [ ] No
DEPOSITARY: OTHER PROVISIONS:
If this Security was issued with "original issue discount" for purposes of
Section 1273 of the Internal Revenue Code of 1986, as amended, the following
shall be completed:
ORIGINAL ISSUE DISCOUNT TOTAL AMOUNT OF OID: ISSUE PRICE (expressed as a percentage of
SECURITY: aggregate principal amount):
[ ] Yes [ ] No
YIELD TO MATURITY: INITIAL ACCRUAL PERIOD OID: METHOD USED TO DETERMINE YIELD FOR INITIAL
ACCRUAL PERIOD:
[ ] Appropriate [ ] Exact
-3-
18
FEDERAL-MOGUL CORPORATION, a corporation duly authorized and existing under
the laws of Michigan (herein called the "Company", which term includes any
successor Person under the Indenture referred to on the reverse hereof), for
value received, hereby promises to pay to ,
or registered assigns, the principal sum of
on the Stated Maturity shown above, and to pay interest thereon from and
including the Original Issue Date shown above or from and including the last
date in respect of which interest has been paid, as the case may be, to, but
excluding the next succeeding Interest Payment Date; provided, however, that if
this Note has a daily or weekly Interest Reset Period, as shown above, such
interest will be paid from and including the Original Issue Date shown above or
from and including the last date in respect of which interest has been paid, as
the case may be, to and including the Regular Record Date immediately preceding
the applicable Interest Payment Date, except that at Maturity the interest
payments will include accrued interest from and including the Original Issue
Date, or from and including the last date in respect of which interest has been
paid, as the case may be, to but excluding the Stated Maturity. Interest will
be paid on the Interest Payment Dates shown above, commencing with the first
such Interest Payment Date next succeeding the Original Issue Date shown above
(except as provided below), at the rate per annum determined in accordance with
the provisions on the reverse hereof, depending on the Base Rate specified
above and the Spread, if any, or Spread Multiplier, if any, until the principal
hereof is paid or made available for payment, and interest shall accrue on any
overdue principal and on any overdue installment of interest (to the extent
that the payment of such interest shall be legally enforceable) at the rate per
annum in effect at the time such principal or installment of interest, as the
case may be, was due and payable. The interest so payable and punctually paid
or duly provided for on an Interest Payment Date will, as provided in such
Indenture, be paid to the Person in whose name this Note (or one or
predecessors Notes) is registered at the close of business on the Regular
Record Date for such interest, which shall be the fifteenth day (whether or not
a Business Day, as defined) next preceding such Interest Payment Date;
provided, however, that interest payable at the Stated Maturity or upon earlier
redemption or repayment will be payable to the Person to whom principal shall
be payable. Payments of principal and interest on Notes for which payments of
principal and interest are made in equal installments over the life of the
security ("Amortizing Notes"), will be made either quarterly on each March 15,
June 15, September 15 and December 15 or semiannually on each June 15 and
December 15 as set forth in the applicable Pricing Supplement, and at Stated
Maturity or upon earlier redemption or repayment. If this Note was originally
issued between a Regular Record Date and an Interest Payment Date, the first
payment of interest on this Note will be made on the Interest Payment Date
following the next succeeding Regular Record Date to the Holder of this Note on
such next succeeding Regular Record Date. Any interest not punctually paid or
duly provided for shall be payable as provided in the Indenture.
If this Note is denominated in a Specified Currency other than U. S. dollars,
then the Holder may, by delivery of a written request to the Paying Agent at
its principal office on or prior to the applicable Regular Record Date or at
least 15 days prior to the Stated Maturity, as the case may be, elect to
receive all such payments in U.S. dollars. Such election will remain in effect
until revoked by written notice received by the Paying Agent not later than on
or prior to the applicable Regular Record Date or at least 15 days prior to the
Stated Maturity, as the case may be (but no such revocation may be made with
respect to payments made on this Note if an Event of Default has occurred with
respect thereto or upon the giving of a notice of redemption). In addition, if
bid quotations for U.S. dollars of the type specified on the reverse side
hereof are not available, the Currency Determination Agent (which shall be the
Company unless otherwise set forth above) will be unable to exchange the
Specified Currency for U.S. dollars and payments of principal and interest will
be made in the Specified Currency. If the Specified Currency is unavailable
due to the imposition of exchange controls or to other circumstances beyond the
Company's control, payments will be made in U.S. dollars as described on the
reverse side hereof.
-4-
19
Payments in U.S. dollars of interest on this Note (other than interest payable
at the Stated Maturity or upon earlier redemption or repayment) will be made by
mailing a check to the Holder at the address of the Holder appearing in the
Security Register on the applicable Regular Record Date. Principal and
interest payable in U.S. dollars at the Stated Maturity or upon earlier
redemption or repayment in respect of this Note will be paid in immediately
available funds upon surrender of this Note at the principal office of the
Paying Agent in Chicago, Illinois, in either case, accompanied by wire transfer
instructions. Payments in a Specified Currency other than U.S. dollars of
interest and principal on this Note will be made by wire transfer to an account
with a bank located in the country issuing the Specified Currency (or with
respect to Notes denominated in European Currency Units, or "ECUs," Brussels),
as shall have been designated by filing the appropriate information with the
Trustee at its Corporate Trust Office at least 15 days prior to the Interest
Payment Date or Stated Maturity, as the case may be, by the Holder, provided
that, in the case of payment of principal of (and premium, if any) and any
interest due at the Stated Maturity, the Note is presented to the Paying Agent
in time for the Paying Agent to make such payments in such funds in accordance
with its normal procedures.
Reference is hereby made to the further provisions of this Note set forth on
the reverse hereof and such further provisions shall for all purposes have the
same effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof, directly or through an
Authenticating Agent, by manual signature of an authorized signatory, this Note
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
-5-
20
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed
under its corporate seal.
Dated: FEDERAL-MOGUL CORPORATION
Corporate Seal By:_____________________________
Title
ATTEST:
By: _________________________________________
Trustee's Certificate of Authentication
This is one of the Securities of the
series described herein and referred
to in the within-mentioned Indenture.
CONTINENTAL BANK,
As Trustee
By______________________________
Authorized Signatory
-6-
21
[REVERSE SIDE OF SECURITIES]
FEDERAL-MOGUL CORPORATION
MEDIUM-TERM NOTE, SERIES A
(Floating Rate)
Section 1. General. This Note is one of a duly authorized issue of
debentures, notes, bonds or other evidences of indebtedness of the Company
(herein called the "Securities"), of the series hereinafter specified, all
issued or to be issued under and pursuant to an indenture, dated as of August
12, 1994 (the "Indenture"), between the Company and Continental Bank, as
Trustee (the "Trustee"), to which Indenture and all indentures supplemental
thereto reference is hereby made for a description of the rights, limitations
of rights, obligations, duties and immunities thereunder of the Trustee, the
Company and the Holders of the Notes. The Securities may be issued in one or
more series, which different series may be issued in various aggregate
principal amounts, may mature at different times, may bear interest, if any, at
different rates, may be subject to different redemption provisions, if any, may
be subject to different sinking, purchase or analogous funds, if any, and may
otherwise vary as in the Indenture provided. This Note is one of a series
designated as "Medium-Term Notes, Series A" of the Company, limited in
aggregate principal amount to U.S. $200,000,000, (or, if Notes of this series
are to be Original Issue Discount Notes or are to be denominated in one or more
Specified Currencies or with the amount payable in respect of principal of or
any premium or interest to be determined by reference to the value, rate or
price of one or more specified indices ("Indexed Notes"), such principal amount
as shall result in an aggregate initial offering price of Notes equivalent to
no more than $200,000,000), or in such lesser amount as may be reduced by the
sale of Securities of another series. References herein to "Notes" shall mean
the Notes of said Series A.
Section 2. Payments. (a) Interest on this Note will be payable
monthly, quarterly, semiannually or annually (the "Interest Payment Period") as
shown on the face hereof. Except as provided below or on the face hereof, the
date or dates on which interest will be payable (each an "Interest Payment
Date") will be, (i) if this Note has a daily, weekly or monthly Interest Reset
Date, the third Wednesday of each month or on the third Wednesday of March,
June, September and December of each year; (ii) if this Note has a quarterly
Interest Reset Date, the third Wednesday of March, June, September and December
of each year; (iii) if this Note has a semiannual Interest Reset Date, the
third Wednesday of each of the two months of each year specified on the face
hereof; and (iv) if this Note has an annual Interest Reset Date, the third
Wednesday of one month of each year specified on the face hereof. Unless
otherwise specified on the face hereof, if any Interest Reset Date for this
Note would otherwise be a day that is not a Market Day, such Interest Payment
Date shall be postponed to the next day that is a Market Day except that, if
the Base Rate indicated on the face of this Note is LIBOR and if such Market
Day is in the next succeeding calendar month, such Interest Payment Date shall
be the immediately preceding Market Day.
The rate of interest on this Note will be reset daily, weekly,
monthly, quarterly, semiannually or annually (an "Interest Reset Date"), as
specified on the face hereof. Unless otherwise specified on the face hereof,
the Interest Reset Date will be, if the rate of interest on this Note resets
daily, each Market Day; if the rate of interest on this Note (other than
Treasury Rate Notes) resets weekly, Wednesday of each week; in the case of the
Treasury Rate Notes that reset weekly, Tuesday of each week (except as provided
below); if the rate of interest on this Note resets monthly, the third
Wednesday of each month (with the exception of monthly reset 11th District Cost
of Funds Rate Notes, which will reset on the first calendar day of the month);
if the rate of interest on this Note resets quarterly, the third Wednesday of
March, June, September and December; if the rate of interest on this Note
resets semiannually, the third Wednesday of each of the two months of each year
specified on
22
the face hereof; and if the rate of interest on this Note resets annually, the
third Wednesday of the month of each year specified on the face hereof. If any
Interest Reset Date for this Note would otherwise be a day that is not a Market
Day, such Interest Reset Date shall be postponed to the next succeeding Market
Day, except that if the Base Rate indicated on the face of this Note is LIBOR
and such Market Day is in the next succeeding calendar month, such Interest
Reset Date shall be the next preceding Market Day. If the Base Rate indicated
on the face of this Note is the Treasury Rate and if an auction of Treasury
bills (as hereinafter defined) falls on a day that is an Interest Reset Date
for this Note, the Interest Reset Date shall be the following day that is a
Market Day.
As used herein, "Business Day", means any Monday, Tuesday, Wednesday,
Thursday or Friday, that in the Place of Payment is not a day on which banking
institutions are authorized or obligated by law or executive order to close and
"Market Day" means, with respect to Notes as to which LIBOR is an applicable
Base Rate, a Business Day which is also a London Business Day. As used herein,
"London Business Day" means any day (a) on which dealings in deposits in the
Specified Currency are transacted in the London interbank market, (b) if the
Designated LIBOR Currency is other than the ECU, on which dealings in deposits
in such Designated LIBOR Currency are transacted in the London interbank market
or (c) if the Designated LIBOR Currency is the ECU, that is not designated as
an ECU Non-Settlement Day by the ECU Banking Association in Paris or otherwise
generally regarded in the ECU interbank market as a day on which payments on
ECUs shall not be made.
(b) If this Note is denominated in other than U.S. dollars and if the
Holder has made the election described in paragraph (c) below, payment in
respect of this Note shall be made in U.S. dollars based on the highest
indicated bid quotation for the purchase of U.S. dollars for the Specified
Currency obtained by the Currency Determination Agent at approximately 11:00
A.M., New York City time, on the Second Market Day next preceding the
applicable payment date (the "Conversion Date") from the bank composite or
multi-contributor pages of the Quoting Source for three (or two if three are
not available) major banks in The City of New York. The first three (or two)
such banks selected by the Currency Determination Agent which are offering
quotes on the Quoting Source will be used. If fewer than two such bid
quotations are available at 11:00 A.M., New York City time, on the second
Market Day next preceding the applicable payment date, such payment will be
based on the noon buying rate in The City of New York for cable transfers for
such Specified Currency as certified for customs purposes by the Federal
Reserve Bank of New York (the "Market Exchange Rate") as of the second Market
Day next preceding the applicable payment date. If the Market Exchange Rate
for such date is not then available, such payment will be made in the Specified
Currency, unless such Specified Currency is unavailable due to the imposition
of exchange controls or to other circumstances beyond the Company's control, in
which case payment will be made as described in paragraph (d) below. As used
herein, the "Quoting Source" means Reuters Monitor Foreign Exchange Service, or
if the Currency Determination Agent determines that such service is not
available, Telerate Monitor Foreign Exchange Service, or if the Currency
Determination Agent determines that neither service is available, such
comparable display or other comparable manner of obtaining quotations as shall
be agreed between the Company and the Currency Determination Agent. All
currency exchange costs associated with any payment in U.S. dollars on this
Note shall be borne by the Holder hereof by deductions from such payments.
(c) If this Note is denominated in other than U.S. dollars, the
Holder of this Note may elect to receive all such payments in U.S. dollars as
described in paragraph (b) above by delivery of a written request to the Paying
Agent at its principal office, which must be received by the Paying Agent on or
prior to the applicable Regular Record Date or at least 15 calendar days prior
to the Stated Maturity, as the case may be. Such election shall remain in
effect unless and until revoked by written notice to the Paying Agent, but the
Paying Agent must receive written notice of any such revocation on or prior to
the Regular Record Date or at least 15 calendar days prior to the Stated
Maturity, as the case may
-2-
23
be (but no such revocation may be made with respect to payments made on this
Note if an Event of Default has occurred with respect hereto or upon the giving
of a notice of redemption). In the absence of manifest error, all
determinations by the Currency Determination Agent shall be final and binding
on the Company and the Holder of this Note.
(d) If payment of this Note is required to be made in a Specified
Currency (e.g. ECUs) other than U.S. dollars and on a payment date with respect
to this Note such currency is unavailable, in the good faith judgment of the
Company, due to the imposition of exchange controls or other circumstances
beyond the Company's control, then all payments in respect of this Note shall
be made in U.S. dollars until such currency unit is again available. 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 under the Indenture. The amount of each payment of U.S.
dollars shall be computed on the basis of the equivalent of the currency unit
in U.S. dollars, which shall be determined by the Currency Determination Agent
on the following basis. The component currencies of the currency unit for this
purpose (the "Component Currencies") shall be the currency amounts that were
components of the currency unit as of the Conversion Date. The equivalent of
the currency unit in U.S. dollars shall be calculated by aggregating the U.S.
dollar equivalents of the Component Currencies. The U.S. dollar equivalent of
each of the Component Currencies shall be determined by the Currency
Determination Agent on the basis of the Market Exchange Rate for each such
Component Currency as of the Conversion Date.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of that currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Currency
Determination Agent shall be at its sole discretion (except to the extent
expressly provided herein or on the face hereof that any determination is
subject to approval by the Company) and, in the absence of manifest error,
shall be conclusive for all purposes and binding on the Holder of this Note and
the Company, and the Currency Determination Agent shall have no liability
therefor.
(e) Interest payments on each Interest Payment Date for this Note
(except if the rate of interest on this Note resets daily or weekly) will
include accrued interest from and including the Original Issue Date or from and
including the last date in respect of which interest has been paid or duly
provided for, as the case may be, to, but excluding, such Interest Payment Date
or Stated Maturity. If the rate of interest on this Note resets daily or
weekly, interest payments will include accrued interest from and including the
Original Issue Date or from and including the last date in respect of which
interest has been paid, as the case may be, to and including the Regular Record
Date immediately preceding the applicable Interest Payment Date, except that at
the Stated Maturity the interest payments will include accrued interest from
and including the Issue Date, or from and including the last day in respect of
which interest has been paid, as the case may be, to, but excluding, the Stated
Maturity.
Accrued interest shall be calculated by multiplying the principal
amount of this Note by an accrued interest factor. Such accrued interest
factor will be computed by adding the interest factors calculated for each day
in the period for which accrued interest is being calculated. Unless otherwise
set forth on the face hereof, the interest factor (rounded upward, if
necessary, to the next higher one
-3-
24
hundred-thousandth of a percent) for each such day is computed by dividing the
interest rate applicable to such day by 360, if the Base Rate indicated on the
face hereof is the Commercial Paper Rate, the Federal Funds Rate, the CD Rate,
the Prime Rate, the 11th District Cost of Funds Rate or LIBOR or by the actual
number of days in the year, if the Base Rate indicated on the face hereof is
the Treasury Rate or the CMT Rate, or by 365 days if the Base Rate on the face
hereof is the Kenny Rate. The interest rate applicable to any date that is an
Interest Reset Date is the interest rate for such Interest Reset Date. The
interest rate applicable to any other day is the interest rate for the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate, as described below). Notwithstanding the foregoing, the interest rate
hereon shall not be greater than the Maximum Interest Rate, if any, or less
than the Minimum Interest Rate, if any, shown on the face hereof. In addition,
the interest rate hereon shall in no event be higher than the maximum interest
rate permitted by New York law as the same may be modified by United States law
of general application.
(f) The interest rate in effect with respect to this Note from the
Issue Date to the first Interest Reset Date (the "Initial Interest Rate") will
be specified on the face hereof. The interest rate for each subsequent
Interest Reset Date will be determined by the Calculation Agent as follows:
Determination of Commercial Paper Rate. If the Base Rate is
the Commercial Paper Rate as indicated on the face hereof, the
"Commercial Paper Rate" for each Interest Reset Date will be
determined by the Calculation Agent as of the second Business Day
prior to such Interest Reset Date (a "Commercial Paper Interest
Determination Date") and shall be the Money Market Yield (as defined
below) on such date of the rate for commercial paper having the Index
Maturity as indicated on the face hereof, as such rate shall be
published by the Board of Governors of the Federal Reserve System in
"Statistical Release H.15(519), Selected Interest Rates", or any
successor publication ("H.15(519)"), under the heading "Commercial
Paper." In the event that such rate is not published prior to 9:00
A.M., New York City time, on the Calculation Date (as defined below),
then the Commercial Paper Rate shall be the Money Market Yield on such
Commercial Paper Interest Determination Date of the rate for
commercial paper of the specified Index Maturity as published by the
Federal Reserve Bank of New York in its daily statistical release
"Composite 3:30 P.M. Quotations for U.S. Government Securities"
("Composite Quotations") under the heading "Commercial Paper." If by
3:00 P.M, New York City time, on such Calculation Date such rate is
not yet published in Composite Quotations, then the Commercial Paper
Rate for such Commercial Paper Interest Determination Date shall be
the Money Market Yield of the arithmetic mean of the offered rates as
of 11:00 A.M., New York City time, on such Commercial Paper Interest
Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial
paper of the specified Index Maturity, placed for an industrial issuer
whose bond rating is "AA", or the equivalent, from a nationally
recognized securities rating agency; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting
offered rates as mentioned in this sentence, the Commercial Paper Rate
with respect to such Commercial Paper Interest Determination Date will
be the Commercial Paper Rate in effect on such Commercial Paper
Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded to the nearest one hundred thousandth of a percentage point)
calculated in accordance with the following formula:
Money Market Yield = D X 360 X 100
360 - (D X M)
-4-
25
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.
The Calculation Date pertaining to a Commercial Paper Interest
Determination Date shall be the earlier of (i) the tenth calendar day
after such Commercial Paper 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
Stated Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be
the Commercial Paper Rate applicable to such Interest Reset Date plus
or minus the Spread and/or multiplied by the Spread Multiplier, as
indicated on the face hereof; however, the interest rate in effect for
the period from the Original Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and the interest rate in effect
for the 10 days immediately prior to the Stated Maturity or earlier
redemption or repayment will be that in effect on the tenth day
preceding such Stated Maturity or earlier redemption or repayment. If
an Interest Reset Date would otherwise be a day that is not a Business
Day, the Interest Reset Date shall be postponed to the next day that
is a Business Day.
Determination of Federal Funds Rate. If the Base Rate is the
Federal Funds Rate as indicated on the face hereof, the "Federal Funds
Rate" means, with respect to any Federal Funds Interest Determination
Date, the rate on such date for Federal funds as published in
H.15(519) under the heading "Federal Funds (Effective)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date
pertaining to such Federal Funds Interest Determination Date, the
Federal Funds Rate will be the rate on such Federal Funds Interest
Determination Date as published in the Composite Quotations under the
heading "Federal Funds/Effective Rate." If such rate is not yet
published in either H.15(519) or the Composite Quotations by 3:00
P.M., New York City time, on the Calculation Date pertaining to such
Federal Funds Interest Determination Date, the Federal Funds Rate for
such Federal Funds 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 Federal Funds Interest Determination Date,
arranged by three leading brokers of 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 set forth above, the Federal Funds Rate with respect to
such Federal Funds Interest Determination Date will be the Federal
Funds Rate in effect on such Federal Funds Interest Determination
Date.
The Federal Funds Interest Determination Date shall be the
second Business Day prior to such Interest Reset Date. The
Calculation Date pertaining to a Federal Funds Interest Determination
Date shall be the earlier of (i) the tenth calendar day after such
Federal Funds 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 Stated Maturity,
as the case may be.
The interest rate for each such Interest Reset Date shall be
the Federal Funds Rate plus or minus the Spread and/or multiplied by
the Spread Multiplier as indicated on the face hereof; provided,
however, the interest rate in effect for the period from the Issue
Date to the first Interest Reset Date will be the Initial Interest
Rate and the interest rate in effect for the 10 days immediately
prior to the Stated Maturity or earlier redemption or repayment will
be that in effect
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26
on the tenth day preceding such Stated Maturity or earlier redemption
or repayment. If an Interest Reset Date would otherwise be a day that
is not a Business Day, the Interest Reset Date shall be postponed to
the next day that is a Business Day.
Determination of CD Rate. If the Base Rate is the CD Rate as
indicated on the face hereof, the "CD Rate" means, with respect to any
CD Rate Interest Determination Date, the rate on such date for
negotiable certificates of deposit having the Index Maturity as
designated on the face hereof as published in H.15(519) under the
heading "CDs (Secondary Market)," or, if not so published by 9:00
A.M., New York City time, on the Calculation Date pertaining to such
CD Rate Interest Determination Date, the CD Rate will be the rate on
such CD Rate Interest Determination Date for negotiable certificates
of deposit of the Index Maturity designated on the face hereof as
published by the Federal Reserve Bank of New York in the Composite
Quotations under the heading "Certificates of Deposit." If such rate
is not yet published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CD Rate Interest Determination
Date, the CD Rate for such CD Rate 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 CD Rate Interest Determination Date, for certificates of
deposit in the denomination of $5,000,000 with a remaining maturity
closest to the Index Maturity designated on the face hereof of three
leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money center
banks of the highest credit standing (in the market for negotiable
certificates of deposit); provided, however, that if the dealers
selected as aforesaid by the Calculation Agent are not quoting as set
forth above, the CD Rate with respect to such CD Rate Interest
Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
The CD Rate Interest Determination Date shall be the second
Business Day prior to such Interest Reset Date. The Calculation Date
pertaining to a CD Rate Interest Determination Date shall be the
earlier of (i) the tenth calendar day after such CD Rate 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 Stated Maturity, as the case may
be.
The interest rate for each such Interest Reset Date shall be
the CD Rate plus or minus the Spread and/or multiplied by the Spread
Multiplier as indicated on the face hereof; provided, however, the
interest rate in effect for the period from the Issue Date to the
first Interest Reset Date will be the Initial Interest Rate and the
interest rate in effect for the 10 days immediately prior to the
Stated Maturity or earlier redemption or repayment will be that in
effect on the tenth day preceding such Stated Maturity or earlier
redemption or repayment. If an Interest Reset Date would otherwise be
a day that is not a Business Day, the Interest Reset Date shall be
postponed to the next day that is a Business Day.
Determination of 11th District Cost of Funds Rate. If the
Base Rate is the 11th District Cost of Funds Rate as indicated on the
face hereof, the "11th District Cost of Funds Rate" means, with
respect to any 11th District Interest Determination Date, the rate
equal to the monthly weighted average cost of funds for the calendar
month preceding such 11th District Interest Determination Date as set
forth under the caption "11th District" on Telerate Page 7058 as of
11:00 A.M., San Francisco time, on such 11th District Interest
Determination Date. If such rate does not appear on Telerate Page
7058 on any related 11th District Interest Determination Date, the
11th District Rate for such 11th District Cost of Funds Interest
Determination Date shall be the monthly weighted average cost of funds
paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced
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27
(the "Index") by the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") as such cost of funds for the calendar month
preceding the date of such announcement. If the FHLB of San Francisco
fails to announce such rate for the calendar month next preceding such
11th District Interest Determination Date, then the 11th District Cost
of Funds Rate for such 11th District Interest Determination Date will
be the 11th District Cost of Funds Rate then in effect on such 11th
District Interest Determination Date.
The 11th District Interest Determination Date shall be the
last business day of the month immediately preceding such Interest
Reset Date on which the FHLB of San Francisco publishes the Index.
The Calculation Date pertaining to an 11th District Interest
Determination Date shall be the earlier of (i) the tenth calendar day
after such 11th District 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 Stated
Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be
the 11th District Cost of Funds Rate plus or minus the Spread and/or
multiplied by the Spread Multiplier as indicated on the face hereof;
provided, however, the interest rate in effect for the period from the
Issue Date to the first Interest Reset Date will be the Initial
Interest Rate and the interest rate in effect for the 10 days
immediately prior to the Stated Maturity or earlier redemption or
repayment will be that in effect on the tenth day preceding such
Stated Maturity or earlier redemption or repayment. If an Interest
Reset Date would otherwise be a day that is not a Business Day, the
Interest Reset Date shall be postponed to the next day that is a
Business Day.
Determination of Kenny Rate. If the Base Rate is the Kenny
Rate as indicated on the face hereof, the "Kenny Rate" means, with
respect to any Kenny Rate Interest Determination Date, the high grade
weekly index (the "Weekly Index") on such date made available by Kenny
Information Systems ("Kenny") to the Calculation Agent. The Weekly
Index is, and shall be, based upon 30 day yield evaluations at par of
bonds, the interest on which is exempt from Federal income taxation
under the Internal Revenue Code of 1986, as amended, of not less than
five high grade component issuers selected by Kenny which shall
include, without limitation, issuers of general obligation bonds. The
specific issuers included among the component issuers may be changed
from time to time by Kenny in its discretion. The bonds on which the
Weekly Index is based shall not include any bonds on which the
interest is subject to a minimum tax or similar tax under the Internal
Revenue Code of 1986, as amended, unless all tax-exempt bonds are
subject to such tax. In the event Kenny ceases to make available such
Weekly Index, a successor indexing agent will be selected by the
Calculation Agent, such index to reflect the prevailing rate for bonds
rated in the highest short-term rating category by Moody's Investors
Service, Inc. and Standard & Poor's Corporation in respect of issuers
most closely resembling the high grade component issuers selected by
Kenny for its Weekly Index, the interest on which is (A) variable on a
weekly basis, (B) exempt from Federal income taxation under the
Internal Revenue Code of 1986, as amended, and (c) not subject to a
minimum tax or similar tax under the Internal Revenue Code of 1986, as
amended, unless all tax-exempt bonds are subject to such tax. If such
successor indexing agent is not available, the rate for any Kenny Rate
Interest Determination Date shall be 60.4% of the rate determined if
the Treasury Rate option had been originally selected.
The Kenny Rate Interest Determination Date shall be the second
Business Day prior to such Interest Reset Date. The Calculation Date
pertaining to a Kenny Rate Interest Determination Date shall be the
earlier of (i) the tenth calendar day after such Kenny Rate Interest
Determination Date or, if such day is not a Business Day, the next
succeeding Business
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28
Day, or (ii) the Business Day preceding the applicable Interest
Payment Date or Stated Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be
the Kenny Rate plus or minus the Spread and/or multiplied by the
Spread Multiplier as indicated on the face hereof; provided, however,
the interest rate in effect for the period from the Issue Date to the
first Interest Reset Date will be the Initial Interest Rate and the
interest rate in effect for the 10 days immediately prior to the
Stated Maturity or earlier redemption or repayment will be that in
effect on the tenth day preceding such Stated Maturity or earlier
redemption or repayment. If an Interest Reset Date would otherwise be
a day that is not a Business Day, the Interest Reset Date shall be
postponed to the next day that is a Business Day.
Determination of LIBOR. If the Base Rate is LIBOR as
indicated on the face hereof, "LIBOR" for each such Interest Reset
Date will be determined as follows:
(i) On the second London Market Day prior to the Interest
Reset Date (a "LIBOR Interest Determination Date")
relating to a LIBOR Note, either, as specified on the
face hereof: (a) if "LIBOR Reuters" is specified on
the face hereof, the arithmetic mean of the offered
rates for deposits in the Designated LIBOR Currency
having the Index Maturity specified on the face
hereof, commencing on the second London Market Day
immediately following the LIBOR Interest
Determination Date, which appear on the Reuters
Screen LIBO Page as of 11:00 A.M., London time, on
the LIBOR Interest Determination Date, if at least
two such offered rates appear on the Reuters Screen
LIBO Page ("LIBOR Reuters"), or (b) if "LIBOR
Telerate" is specified on the face hereof, the rate
for deposits in the Designated LIBOR Currency having
the Index Maturity specified on the face hereof,
commencing on the second London Market Day
immediately following such LIBOR Interest
Determination Date, that appears on the Telerate Page
3750 as of 11:00 A.M., London time, on that LIBOR
Interest Determination Date ("LIBOR Telerate").
Unless otherwise indicated on the face hereof,
"Reuters Screen LIBO Page" means the display
designated as Page "LIBO" on the Reuters Monitor
Money Rate Service (or such other page as may replace
the LIBO page on that service for the purpose of
displaying London interbank offered rates of major
banks). "Telerate Page 3750" means the display
designated as page "3750" on the Telerate Service (or
such other page as may replace the 3750 page on that
service or such other service or services as may be
nominated by the British Bankers' Association (the
"Association") for the purpose of displaying London
interbank offered rates for U.S. dollar deposits).
In the case where (a) above applies, if fewer than
two offered rates appear on the Reuters Screen LIBO
Page, LIBOR in respect of that Interest Reset Date
will be determined as if the parties had specified
the rate described in (ii) below (unless the
specified Reuters Screen LIBO Page by its terms
provides only for a single rate, in which case such
single rate shall be used), or, in the case where (b)
above applies if no rate appears on the Telerate Page
3750, as applicable, LIBOR in respect of that
Interest Reset Date will be determined as if the
parties had specified the rate described in (ii)
below.
(ii) With respect to any LIBOR Interest Determination Date
on which this provision applies, the Calculation
Agent will request the principal London office of
each of four major banks in the London interbank
market selected by the Calculation Agent to provide
the Calculation Agent with its offered rate quotation
for
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deposits in the Designated LIBOR Currency for the
period of the Index Maturity specified on the face
hereof, commencing on the second London Market Day
immediately following such LIBOR Interest
Determination Date, to prime banks in the London
interbank market as of 11:00 A.M., London time, on
such LIBOR Interest Determination Date and in a
principal amount that is representative for a single
transaction in such Designated LIBOR Currency in such
market at such time. If at least two such quotations
are provided, LIBOR for such LIBOR Interest
Determination Date will be the arithmetic mean of
such quotations. If fewer than two quotations are
provided, LIBOR for such Interest Determination Date
will be the arithmetic means of the rates quoted as
of 11:00 A.M. in the applicable Principal Financial
Center, on such LIBOR Interest Determination Date by
three major banks in such Principal Financial Center
selected by the Calculation Agent for loans in the
Designated LIBOR Currency to leading banks having the
specified Index Maturity designated on the face
hereof in a principal amount that is representative
for a single transaction in such Designated LIBOR
Currency in such market at such time; provided,
however, that if the banks selected as aforesaid by
the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR determined on such LIBOR
Interest Determination Date will be LIBOR then in
effect on such LIBOR Interest Determination Date.
The Calculation Date pertaining to a LIBOR Interest Determination Date
shall be the earlier of (i) the tenth calendar day after the LIBOR Interest
Determination Date or, if such day is not a Market Day, the next succeeding
Market Day, or (ii) the Market Day preceding the applicable Interest Payment
Date or Stated Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be LIBOR
plus or minus the Spread and/or multiplied by the Spread Multiplier as
indicated on the face hereof; provided, however, the interest rate in effect
for the period from the Issue Date to the first Interest Reset Date will be the
Initial Interest Rate and the interest rate in effect for the 10 days
immediately prior to the Stated Maturity or earlier redemption or repayment
will be that in effect on the tenth day preceding such Stated Maturity or
earlier redemption or repayment. If an Interest Reset Date would otherwise be
a day that is not a Market Day, the Interest Reset Date shall be postponed to
the next day that is a Market Day, except that, in the case of a LIBOR Note, if
such Market Day is in the next succeeding calendar month, such Interest Reset
Date shall be the immediately preceding Market Day.
"Designated LIBOR Currency" means, as with respect to any LIBOR Note,
the currency (including a composite currency), if any, designated on this Note
and the applicable Pricing Supplement as the Designated LIBOR Currency. If no
such currency is designated on this Note and the applicable Pricing Supplement,
the Designated LIBOR Currency shall be U.S. dollars.
"Principal Financial Center" means, as with respect to any LIBOR Note,
unless otherwise specified in this Note and the applicable Pricing Supplement,
the capital city of the country that issues as its legal tender the Designated
LIBOR Currency of this Note, except that with respect to U.S. dollars and ECUs,
the Principal Financial Center shall be the City of New York and Brussels,
respectively.
Determination of Prime Rate. If the Base Rate is the Prime Rate as
indicated on the face hereof, the "Prime Rate" means, with respect to any Prime
Rate Interest Determination Date, 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 pertaining to such Prime
Rate Interest Determination Date, the Prime Rate will be calculated by the
Calculation Agent and will be the arithmetic mean of the rates of interest
publicly announced by each bank named on the Reuters Screen
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30
NYMF Page (as defined below) as such bank's prime rate or base lending rate as
in effect for such Prime Rate Interest Determination Date as quoted on the
Reuters Screen NYMF Page on such Prime Rate Interest Determination Date, or, if
fewer than four such rates appear on the Reuters Screen NYMF Page for such
Prime Rate Interest Determination Date, the rate shall 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 such Prime Rate 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 for such
Prime Rate Interest Determination Date 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 on such date 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; provided, however, that if the Prime Rate is not
published in H.15(519) and the banks or trust companies selected as aforesaid
are not quoting as mentioned in this sentence, the "Prime Rate" with respect to
such Prime Rate Interest Determination Date will be the interest rate otherwise
in effect on such Prime Rate Interest Determination Date. "Reuters Screen NYMF
Page" means the display designated as page "NYMF" on the Reuters Monitor Money
Rates Service (or such other page as may replace the page NYMF on that service
for the purpose of displaying prime rates or base lending rates of major United
States banks).
The Prime Rate Interest Determination Date shall be the Second
Business Day prior to such Interest Reset Date. The Calculation Date
pertaining to a Prime Rate Interest Determination Date shall be the earlier of
(i) the tenth calendar day after such Prime Rate 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 Stated
Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be the Prime
Rate plus or minus the Spread and/or multiplied by the Spread Multiplier as
indicated on the face hereof; provided, however, the interest rate in effect
for the period from the Issue Date to the first Interest Reset Date will be the
Initial Interest Rate and the interest rate in effect for the 10 days
immediately prior to the Stated Maturity or earlier redemption or repayment
will be that in effect on the tenth day preceding such Stated Maturity or
earlier redemption or repayment. If an Interest Reset Date would otherwise be
a day that is not a Business Day, the Interest Reset Date shall be postponed to
the next day that is a Business Day.
Determination of Treasury Rate. If the Base Rate is the Treasury Rate
as indicated on the face hereof, the "Treasury Rate" with respect to any
Treasury Rate Interest Determination Date shall be the rate for the most recent
auction of direct obligations of the United States ("Treasury bills") having
the Index Maturity specified on the Note representing this Treasury Rate Note
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 Treasury Rate Interest Determination Date,
the auction average rate (expressed as a bond equivalent, rounded upwards, if
necessary, to the next higher one hundred-thousandth of a percent, 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 specified
Index Maturity are not made available by the Federal Reserve Board or 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 calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent, rounded upwards, if necessary, to
the next higher one hundred-thousandth of a percent, on the basis of a year of
365 or 366 days, as applicable, and applied
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31
on a daily basis) of the arithmetic mean of the secondary market bid rates, as
of approximately 3:30 P.M., New York City time, on such Treasury Rate 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 applicable Index Maturity;
provided, however, that if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate for such
Treasury Rate Interest Determination Date will be the Treasury Rate in effect
on such date.
The Treasury Rate Interest Determination Date shall be the day of the
week in which such Interest Reset Date falls on which Treasury bills would
usually be auctioned. Treasury bills are usually sold at auction on Monday of
each week, unless that day is a legal holiday, in which case the auction is
usually held on the following Tuesday, except that such auction may be held on
the preceding Friday. If, as a result of a legal holiday, an auction is so
held on the preceding Friday, such Friday will be the Treasury Rate Interest
Determination Date pertaining to the Interest Reset Date commencing in the next
succeeding week. If an auction date shall fall on any Interest Reset Date for
a Treasury Rate Note, then such Interest Reset Date shall instead be the first
Business Day immediately following such auction date. The Calculation Date
pertaining to a Treasury Rate Interest Determination Date will be the earlier
of (i) the tenth calendar day after such Treasury Rate 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
Stated Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be the
Treasury Rate plus or minus the Spread and/or multiplied by the spread
Multiplier as indicated on the face hereof; provided, however, the interest
rate in effect for the period from the Issue Date to the first Interest Reset
Date will be the Initial Interest Rate and the interest rate in effect for the
10 days immediately prior to the Stated Maturity or earlier redemption or
repayment will be that in effect on the tenth day preceding such Stated
Maturity or earlier redemption or repayment. If an Interest Reset Date would
otherwise be a day that is not a Business Day, the Interest Reset Date shall be
postponed to the next day that is a Business Day.
Determination of CMT Rate. If the Base Rate is the CMT Rate as
indicated on the face hereof, the "CMT Rate" means, with respect to any CMT
Interest Determination Date, 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 (i) if
the Designated CMT Telerate Page is 7055, the rate on such CMT Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
week, or the month, as applicable, ended immediately preceding the week in
which the applicable CMT Interest Determination Date occurs. If such rate is no
longer displayed on the relevant page, or if not displayed by 3:00 P.M., New
York City time, on the Calculation Date pertaining to such CMT Interest
Determination Date, then the CMT Rate for such CMT Interest Determination Date
will be such treasury constant maturity rate for the Designated CMT Maturity
Index as published in the relevant H. 15(519). If such rate is no longer
published, or if not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CMT Interest Determination Date, then the
CMT Rate for such CMT Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index (or other United
States Treasury rate for the Designated CMT Maturity Index) for the CMT
Interest Determination Date with respect to such Interest Reset Date as may
then be published by either the Board of Governors of the Federal Reserve
System or the United States Department of the Treasury that the Calculation
Agent determines to be comparable to the rate formerly displayed on the
Designated CMT Telerate Page and published in the relevant H.15(519). If such
information is not provided by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such CMT Interest Determination Date, then the
CMT Rate for the CMT Interest Determination Date will
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32
be calculated by the Calculation Agent and will 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 CMT Interest Determination
Date reported, according to their written records, by three leading primary
United States government securities dealers (each, a "Reference Dealer") in The
City of New York selected by the Calculation Agent (from five such Reference
Dealers selected by the Calculation Agent and eliminating the highest quotation
(or, in the event of equality, one of the highest) and the lowest quotation
(or, in the event of equality, one of the lowest)), for the most recently
issued direct noncallable fixed rate obligations of the United States
("Treasury Notes") with an original Maturity of approximately the Designated
CMT Maturity Index and a remaining term to Stated Maturity of not less than
such Designated CMT Maturity Index minus one year. If the Calculation Agent
cannot obtain three such Treasury Note quotations, the CMT Rate for such CMT
Interest Determination Date will be calculated by the Calculation Agent and
will 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 CMT Interest Determination Date of three Reference Dealers in The City of
New York (from five such Reference Dealers selected by the Calculation Agent
and eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for Treasury Notes with an original Maturity of the number of years
that is the next highest to the Designated CMT Maturity Index and a remaining
term to Stated Maturity closest to the Designated CMT Maturity Index and in an
amount of at least $100,000,000. If three or four (and not five) of such
Reference Dealers are quoting as described above, then the CMT Rate will be
based on the arithmetic mean of the offer prices obtained and neither the
highest nor the lowest of such quotes will be eliminated; provided however,
that if fewer than three Reference Dealers selected by the Calculation Agent
are quoting as described herein, the CMT Rate will be the CMT Rate in effect on
such CMT Interest Determination Date. If two Treasury Notes with an original
maturity as described in the third preceding sentence, have remaining terms to
maturity equally close to the Designated CMT Maturity Index, the quotes for the
CMT Rate Note with the shorter remaining term to Stated Maturity will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page specified in the applicable Pricing Supplement (or
any other page as may replace such page on that service for the purpose of
displaying Treasury Constant Maturities as published in H.15(519)), for the
purpose of displaying Treasury Constant Maturities as published in H.15(519).
If no such page is specified in the applicable Pricing Supplement, 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 Treasury Notes (either one, two, three, five, seven, ten, twenty or
thirty years) specified in the applicable Pricing Supplement with respect to
which the CMT Rate will be calculated. If no such maturity is specified in the
applicable Pricing Supplement, the Designated CMT Maturity Index shall be two
years.
The CMT Interest Determination Date shall be the Second Business Day
prior to such Interest Reset Date. The Calculation Date pertaining to a CMT
Interest Determination Date shall be the earlier of (i) the tenth calendar day
after such CMT 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 Stated Maturity, as the case may be.
The interest rate for each such Interest Reset Date shall be the CMT
Rate plus or minus the Spread and/or multiplied by the Spread Multiplier as
indicated on the face hereof; provided, however, the interest rate in effect
for the period from the Issue Date to the first Interest Reset Date will be the
Initial Interest Rate and the interest rate in effect for the 10 days
immediately prior to the Stated Maturity or earlier redemption or repayment
will be that in effect on the tenth day preceding such
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Stated Maturity or earlier redemption or repayment. If an Interest Reset Date
would otherwise be a day that is not a Business Day, the Interest Reset Date
shall be postponed to the next day that is a Business Day.
The Trustee shall be the initial Calculation Agent. At the request of
the Holder hereof, the Calculation Agent will provide the interest rate then in
effect and, if determined, the interest rate which will become effective on the
next Interest Reset Date with respect to this Note.
All percentages resulting from any calculations under this Note will
be rounded, if necessary, to the nearest one hundred thousandth of a percentage
point (with five one-millionths of a percentage point being rounded upward),
all dollar amounts used in or resulting from such calculation will be rounded
to the nearest cent (with one-half cent being rounded upward), and all currency
or currency unit amounts used in or resulting from any such calculation in
respect of the Notes will be rounded to the nearest one-hundredth of a unit
(with five one-thousandths being rounded upward).
(g) Until the Notes are paid or payment thereof is duly provided
for, the Company will, at all times, maintain a paying agent (the "Paying
Agent") capable of performing the duties described herein to be performed by
the Paying Agent. The Company has initially appointed the Trustee as the
Paying Agent. The Company will notify the Holders of such Notes, in accordance
with the Indenture, of any change in the Paying Agent or its address.
Section 3. Redemption. If so specified on the face hereof, the
Company may at its option redeem this Note in whole or from time to time in
part on or after the date designated as the Initial Redemption Date on the face
hereof at prices declining from a premium specified on the face hereof, if any,
to par together with accrued interest to the date of redemption; provided,
however, that interest installments due prior to the date fixed for redemption
will be payable to the Holder of record at the close of business on the
applicable Regular Record Date. The Company may exercise such option by
causing a notice of such redemption to be mailed to each Holder by first class
mail, postage prepaid, at least 30 but not more than 60 days prior to the date
of redemption. In the event of redemption of this Note in part only, a new
Note or Notes for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof. If less than all of the Notes
with like tenor and terms to this Note are to be redeemed, the Notes to be
redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate.
Section 4. Repayment. If so specified on the face hereof, this Note
will be repayable prior to the Stated Maturity at the option of the Holder on
the Optional Repayment Dates shown on the face hereof at a price equal to 100%
of the principal amount hereof or, if this Note is a Discounted Security (as
specified on the face hereof), at the applicable Optional Repayment Price shown
on the face hereof, together with accrued interest to the date of repayment;
provided, however, that interest installments due prior to the date fixed for
repayment will be payable to the Holder of record at the close of business on
the applicable Regular Record Date. Any repayment in part will be in
increments of $1,000 or the minimum denomination specified on the face hereof
(provided that any remaining principal amount thereof shall be at least $1,000
or such minimum denomination). For any Note to be repaid, such Note must be
received, together with the form thereon entitled "Option to Elect Repayment"
duly completed, by the Trustee at its Corporate Trust Office (or such other
address of which the Company shall from time to time notify the Holders) not
more than 60 nor less than 30 days prior to the date of repayment. Exercise of
such repayment option by the Holder will be irrevocable.
In the case of Book-Entry Notes represented by a Global Security or
Securities held by or on behalf of the Depositary, and registered in the name
of the Depositary or the Depositary's nominee, the option for repayment may be
exercised by the applicable participant that has an account with the
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Depositary, on behalf of the beneficial owners of the Global Security or
Securities representing such Book-Entry Notes, by delivering a written notice
substantially similar to the above mentioned form to the Trustee at its
Corporate Trust Office (or such other address of which the Company shall from
time to time notify the Holders), not more than 60 nor less than 30 days prior
to the date of repayment. Notices of elections from participants on behalf of
beneficial owners of the Global Security or Securities representing such
Book-Entry Notes to exercise their option to have such Book-Entry Notes repaid
must be received by the Trustee by 5:00 P.M., New York City time, on the last
day for giving such notice. In order to ensure that a notice is received by
the Trustee on a particular day, the beneficial owner of the Global Security or
Securities representing such Book-Entry Notes must so direct the applicable
participant before such participant's deadline for accepting instructions for
that day. All notices shall be executed by a duly authorized officer of such
participant (with signatures guaranteed) and shall be irrevocable. In
addition, beneficial owners of the Global Security or Securities representing
Book-Entry Notes shall effect delivery at the time such notices of election are
given to the Depositary by causing the applicable participant to transfer such
beneficial owner's interest in the Global Security or Securities representing
such Book-Entry Notes, on the Depositary's records, to the Trustee.
Section 5. Sinking Fund. Unless otherwise specified on the face
hereof, the Notes will not be subject to any Sinking Fund.
Section 6. Original Issue Discount Notes. Notwithstanding anything
herein to the contrary, if this Note is an Original Issue Discount Note, the
amount payable in the event of redemption or repayment, or declaration of
acceleration following an Event of Default, prior to the Stated Maturity hereof
in lieu of the principal amount due at the Stated Maturity hereof shall be the
Amortized Face Amount of this Note as of the redemption date, the date of
repayment, or the date of declaration of acceleration, as the case may be. The
"Amortized Face Amount" of this Note shall be the amount equal to the sum of
(i) the principal amount of such Note multiplied by the Issue Price (expressed,
for this purpose, as a percentage of the principal amount of the Note) set
forth on the face hereof plus (ii) the portion of the difference between the
dollar amount determined pursuant to the preceding clause (i) and the principal
amount of such Note that has accrued at the yield to maturity set forth on the
face hereof (computed in accordance with generally accepted financial
practices) to such date of declaration, but in no event shall the Amortized
Face Amount of an Original Issue Discount Note exceed its principal amount.
Section 7. Events of Default. In case an Event of Default, as
defined in the Indenture, with respect to the Notes shall have occurred and be
continuing, the Trustee or Holders of at least 25% in principal amount of the
Notes outstanding may declare the principal amount of all the Notes, and upon
such declaration such principal amount of all the Notes, shall become, due and
payable, in the manner, with the effect and subject to the conditions provided
in the Indenture.
Section 8. Modifications and Waivers. The Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Notes of each series to be affected under the Indenture at any
time by the Company and the Trustee with the consent of the Holders of not less
than a majority in principal amount of the Notes at the time Outstanding of
each series to be affected. The Indenture also contains provisions permitting,
with certain exceptions as therein provided, the Holders of not less than a
majority in principal amount of the Notes of each series at the time
Outstanding, on behalf of the Holders of all Notes of such series, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Note shall be conclusive and binding upon such
Holder and upon all future Holders of this Note and of any Note issued upon the
registration of transfer hereof or
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in exchange hereof or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the right of the Holder of this Note,
which is absolute and unconditional, to receive payment of the principal of
(and premium, if any) and interest on this Note at the times, places and rate,
and in the coin or currency, herein prescribed.
Section 9. Authorized Denominations. Notes are issuable in
registered form without coupons in the minimum denomination of $1,000, or the
equivalent thereof in the Specified Currency, and in any larger amount that is
an integral multiple of $1,000. Notes may be exchanged by the Holder hereof
without charge except for any tax or other governmental charge imposed in
connection therewith, for a like aggregate principal amount of Notes of other
authorized denominations in the manner and subject to the limitations provided
in the Indenture at the office or agency to be maintained by the Company in The
City of New York, New York, or at such other location or locations as may be
provided for in the Indenture.
Section 10. Registration of Transfer. Upon due presentment for
registration of transfer of this Note at the office or agency of the Company
maintained for such purpose, one or more new 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.
If this Note is a Global Security (as specified on the face hereof),
this Note is exchangeable only if (w) the Depositary notifies the Company and
the Trustee in writing that it is unwilling or unable to continue as Depositary
for this Global Security or if at any time the Depositary ceases to be a
clearing agency registered under the Securities Exchange Act of 1934, as
amended, and a successor Depositary is not appointed by the Company within 90
days, (x) the Company in its sole discretion determines that this Note shall be
exchangeable for certificated Notes in registered form and delivers to the
Trustee a written order as described in the Indenture that this Note shall be
so exchangeable, or (y) there shall have occurred and be continuing an Event of
Default or an event which, with the lapse of time or the giving of notice, or
both, would constitute an Event of Default with respect to the Global
Securities represented hereby or (z) there shall exist such other
circumstances, if any, as specified for this purpose as contemplated by Section
301 of the Indenture, provided that this permanent Global Security shall be
surrendered by the Depositary, or such other depositary as shall have been
specified as provided in the Indenture, to the Trustee, as the agent for such
purpose, to be exchanged, in whole or in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of this permanent Global Security, an equal aggregate principal
amount of definitive Securities, executed by the Company, of the same series of
authorized denominations and of like tenor as the portion of this Global
Security to be exchanged, which shall be in the form of registered Securities
as provided in the Company's written order as described in the Indenture.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, this global Note other than
pursuant to clauses (w), (x), (y) or (z) above, shall be authenticated and
delivered in the form of, and shall be, a Global Security. Except as provided
above, owners of beneficial interests in this permanent Global Security will
not be entitled to receive physical delivery of Notes in certificated
registered form and will not be considered the Holders thereof for any purpose
under the Indenture.
Section 11. Owners. Prior to due presentment for registration of
transfer of this Note, the Company, the Trustee, any Paying Agent and the
Security Registrar may deem and treat the registered
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Holder hereof as the absolute owner of this Note (whether or not this Note
shall be overdue and notwithstanding any notation of ownership or other writing
hereon), for the purpose of receiving payment of, or on account of, the
principal hereof, and, subject to the provisions on the face hereof, interest
hereon, and for all other purposes, and neither the Company nor the Trustee nor
any Paying Agent nor any Security Registrar shall be affected by any notice to
the contrary.
Section 12. Defeasance; Proceedings. The Indenture contains
provisions, which apply to this Note, for defeasance of (i) the entire
indebtedness of this Note and (ii) certain restrictive covenants, subject in
either case to compliance by the Company with conditions set forth in the
Indenture.
As provided in and subject to the provisions of the Indenture, the
Holder of this Note shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default with respect to the
Notes of this series, the Holders of not less than 25% in principal amount of
the Notes of this series at the time Outstanding shall have made written
request to the Trustee to institute proceedings in respect of such Event of
Default as Trustee and offered the Trustee reasonable indemnity, and the
Trustee shall not have received from the Holders of a majority in principal
amount of Notes of this series at the time Outstanding a direction inconsistent
with such request, and shall have failed to institute any such proceeding, for
60 days after receipt of such notice, request and offer of indemnity. The
foregoing shall not apply to any suit instituted by the Holder of this Note for
the enforcement of any payment of principal hereof or any premium or interest
hereon on or after the respective due dates expressed herein.
Section 13. Definitions. All capitalized terms used in this Note
which are defined in the Indenture shall have the meanings assigned to them
therein.
Section 14. Governing Law. This Note shall be governed and construed
in accordance with the law of the State of New York.
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OPTION TO ELECT REPAYMENT
The undersigned owner of this Note hereby irrevocably elects to have
the Company repay the principal amount of this Note or portion hereof below
designated at the Optional Repayment Price indicated on the face hereof.
Dated:_________________________
_______________________________________
Signature
Sign exactly as name appears on the
front of this Security [SIGNATURE
GUARANTEE - required only if Securities
are to be issued and delivered to the
other than the registered holder]
Principal amount to be repaid, if Fill in for registration of Securities
amount to be repaid is less the if to be issued otherwise than to the
principal amount of this Security then registered holder:
(principal amount remaining must be
an authorized denomination) Name:__________________________________
Address:_______________________________
______________________________
(Please print name and address
$______________________________ including zip code)
SOCIAL SECURITY OR OTHER TAXPAYER ID
NUMBER
________________________________________
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ................Custodian................
(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 TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL
ZIP CODE OF ASSIGNEE
________________________________________________________________________________
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing _____________ attorney to transfer said Note on the books of the
Company, with full power of substitution in the premises.
Dated:
____________________
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER.
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