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EXHIBIT 4.2
FLOATING RATE GLOBAL MEDIUM-TERM NOTE
Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to Issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as is requested by an authorized representative of DTC (and any payment is
made to Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
REGISTERED CUSIP No. ________________________ PRINCIPAL OR FACE AMOUNT
No. FLR___ $______________
KIRBY CORPORATION
MEDIUM-TERM NOTE
(Floating Rate)
________________________________________________________________________________
* * * ( ) CHECK IF AN INDEXED NOTE * * *
If this is an Indexed Note, references herein to "principal" shall be deemed to
be the face amount hereof, except that the amount payable upon Maturity of this
Note shall be determined in accordance with the formula or formulas set forth
below or in an attached Addendum hereto.
________________________________________________________________________________
INTEREST RATE BASIS: ORIGINAL ISSUE DATE: STATED MATURITY DATE:
INDEX MATURITY: INITIAL INTEREST RATE: INTEREST PAYMENT PERIOD:
SPREAD: INITIAL INTEREST RESET DATE: INTEREST PAYMENT DATES:
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SPREAD MULTIPLIER: INTEREST RATE RESET PERIOD: INTEREST RESET DATES:
MAXIMUM INTEREST MINIMUM INTEREST RATE: IF INTEREST RATE BASIS IS CMT
RATE: RATE:
DESIGNATED CMT MATURITY
INDEX: _____ year(s).
DESIGNATED CMT TELERATE PAGE:
( ) 7055
( ) 7052
IF 7052: ( ) WEEK
( ) MONTH
INITIAL REDEMPTION ANNUAL REDEMPTION OPTIONAL REPAYMENT
PERCENTAGE: PERCENTAGE REDUCTION: DATE(S):
CALCULATION AGENT: IF INTEREST RATE
BASIS IS LIBOR: INDEX CURRENCY: ________________
DESIGNATED LIBOR PAGE:
( ) Reuters Page:_____________________
( ) Telerate Page:____________________
INTEREST CALCULATION: DAY COUNT CONVENTION
( ) Regular Floating Rate Note ( ) Actual/360 for the period
( ) Floating Rate/Fixed Rate from to .
Fixed Rate Commencement Date: ( ) Actual/Actual for the period
Fixed Interest Rate: from to .
( ) Inverse Floating Rate Note ( ) 30/360 for the period
Fixed Interest Rate: from to .
ADDENDUM ATTACHED: ORIGINAL ISSUE DISCOUNT
( ) Yes ( ) Yes
( ) No ( ) No
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period:
OTHER PROVISIONS:
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Kirby Corporation, a Nevada corporation ("Issuer" or the "Company,"
which terms include any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to CEDE & CO., or
registered assigns, the principal sum of _________________________________
DOLLARS, if this is an Indexed Note, the principal amount as determined in
accordance with the terms set forth under "Other Provisions" above and/or in
the Addendum attached hereto, on the Stated Maturity Date specified above
(except to the extent redeemed or repaid prior to the Stated Maturity Date),
and to pay interest on the principal or face amount hereof as set forth above,
at a rate per annum equal to the Initial Interest Rate specified above until
the Initial Interest Reset Date specified above and thereafter at a rate per
annum determined in accordance with the provisions hereof and any Addendum
relating hereto depending upon the Interest Rate Basis or Bases, if any, and
such other terms specified above, until the principal hereof is paid or duly
made available for payment. Reference herein to "this Note", "hereof",
"herein" and comparable terms shall include an Addendum hereto if an Addendum
is specified above.
The Company will pay interest monthly, quarterly, semi-annually,
annually or such other period as specified above under "Interest Payment
Period", on each Interest Payment Date specified above, commencing on the first
Interest Payment Date specified above next succeeding the Original Issue Date
specified above, and on the Stated Maturity Date or any Redemption Date or
Optional Repayment Date (if specified as repayable at the option of the Holder
in an attached Addendum) (the date of each such Stated Maturity Date,
Redemption Date and Optional Repayment Date and the date on which principal or
an installment of principal is due and payable by declaration of acceleration
pursuant to the Indenture being referred to hereinafter as a "Maturity" with
respect to principal payable on such date); provided, however, that if the
Original Issue Date is between a Regular Record Date (as defined below) and the
next succeeding Interest Payment Date, interest payments will commence on the
Interest Payment Date immediately following the next succeeding Regular Record
Date; and provided further, that if an Interest Payment Date (other than an
Interest Payment Date at Maturity) would fall on a day that is not a Business
Day (as defined below), such Interest Payment Date shall be the following day
that is a Business Day, except that in the case the Interest Rate Basis is
LIBOR, as indicated above, if such next Business Day falls in the next calendar
month, such Interest Payment Date shall be the next preceding day that is a
Business Day. Except as provided above, interest payments will be made on the
Interest Payment Dates shown above. Unless otherwise specified above, the
"Regular Record Date" shall be the date 15 calendar days (whether or not a
Business Day) prior to the applicable Interest Payment Date. Interest on this
Note will accrue from and including the Original Issue Date specified above, at
the rates determined from time to time as specified herein, until the principal
hereof has been paid or made available for payment. If the Maturity falls on a
day which is not a Business Day as defined below, the payment due on such
Maturity will be paid on the next succeeding Business Day with the same force
and effect as if made on such Maturity and no interest shall accrue with
respect to such payment for the period from and after such Maturity. The
interest so payable and punctually paid or duly provided for on any Interest
Payment Date will as provided in the Indenture be paid to the Person in whose
name this Note (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such Interest Payment Date.
Any such interest which is payable, but not punctually paid or duly provided
for on any Interest Payment
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Date (herein called "Defaulted Interest"), shall forthwith cease to be payable
to the registered Holder on such Regular Record Date, and may be paid to the
Person in whose name this Note (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Paying Agent, notice whereof shall be
given to the Holder of this Note not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Indenture.
Payment of the principal of and interest on this Note will be made at
the office or agency of the Company maintained by the Company for such purpose,
in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts; provided,
however, that at the option of the Company, payment of interest may be made by
check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register; and provided, further, that upon request
of the Holder hereof, if the principal amount of this Note is $10,000,000 or
more, such Holder will be entitled to receive interest payments by wire
transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the office or agency of the
Company maintained by the Company for such purpose not less than 15 days prior
to such Interest Payment Date.
Unless the certificate of authentication hereon has been executed by
or on behalf of Texas Commerce Bank National Association, the Trustee with
respect to the Notes under the Indenture, or its successor thereunder, by the
manual signature of one of its authorized officers, this Note shall not be
entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
This Note is one of a duly authorized series of Securities
(hereinafter called the "Securities") of the Company designated as its
Medium-Term Notes (the "Notes"). The Notes are issued and to be issued under
an Indenture dated as of December 2, 1994 (herein called the "Indenture")
between the Company and Texas Commerce Bank National Association, which
Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights thereunder of the Company, the
Trustee and the Holders of the Notes and the terms upon which the Notes are
to be authenticated and delivered. The terms of individual Notes may vary
with respect to interest rates or interest rate formulas, issue dates,
maturity, redemption, repayment, currency of payment and otherwise.
Except as otherwise provided in the Indenture, the Notes will be
issued in global form only registered in the name of The Depository Trust
Company (the "Depositary") or its nominee. The Notes will not be issued in
definitive form, except as otherwise provided in the Indenture, and ownership
of the Notes shall be maintained in book entry form by the Depositary for the
accounts of participating organizations of the Depositary.
This Note is not subject to any sinking fund and, unless otherwise
provided above in accordance with the provisions of the following paragraphs,
is not redeemable or repayable prior to the Stated Maturity Date.
If so provided above, this Note may be redeemed by the Company on any
date on and after the Initial Redemption Date, if any, specified above. If no
Initial Redemption Date is set
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forth above, this Note may not be redeemed prior to the Stated Maturity Date.
On and after the Initial Redemption Date, if any, this Note may be redeemed at
any time in whole or from time to time in part in increments of $1,000
(provided that any remaining principal hereof shall be at least $1,000) at the
option of the Company at the applicable Redemption Price (as defined below)
together with accrued interest hereon at the applicable rate payable to the
date of redemption (each such date, a "Redemption Date"), on written notice
given not more than 60 nor less than 30 days prior to the Redemption Date. In
the event of redemption of this Note in part only, a new Note for the
unredeemed portion hereof shall be issued in the name of the Holder hereof upon
the surrender hereof.
Unless otherwise specified above, the "Redemption Price" shall
initially be the Initial Redemption Percentage, specified above, of the
principal amount of this Note to be redeemed and shall decline at each
anniversary of the Initial Redemption Date, shown above, by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof, of the
principal amount to be redeemed until the Redemption Price is 100% of such
principal amount.
Unless otherwise specified in an Addendum attached hereto, this Note
is not subject to repayment at the option of the Holder. If this Note shall be
repayable at the option of the Holder as specified in an attached Addendum
hereto, unless otherwise specified in such Addendum, on any Optional Repayment
Date, this Note shall be repayable in whole or in part in increments of $1,000
(provided that any remaining principal hereof shall be at least $1,000) at the
option of the Holder hereof at a repayment price equal to 100% of the principal
amount to be repaid, together with interest thereon payable to the date of
repayment. If specified as repayable at the option of the Holder in such
Addendum, for this Note to be repaid in whole or in part at the option of the
Holder hereof, this Note must be received, with the form entitled "Option to
Elect Repayment" below duly completed, by the Paying Agent at its principal
office, or such address which the Company shall from time to time notify the
Holders of the Notes, not more than 60 nor less than 30 days prior to the
related Optional Repayment Date. Exercise of such repayment option by the
Holder hereof shall be irrevocable.
The interest rate borne by this Note shall be determined as follows:
1. If this Note is designated as a Regular Floating Rate
Note above, then, except as described below, this Note shall bear
interest at the rate determined by reference to the applicable
Interest Rate Basis shown above (i) plus or minus the applicable
Spread, if any, and/or (ii) multiplied by the applicable Spread
Multiplier, if any, specified and applied in the manner described
above. Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note is payable shall be reset as of each
Interest Reset Date specified above; provided, however, that the
interest rate in effect for the period from the Original Issue Date to
the Initial Interest Reset Date will be the Initial Interest Rate.
2. If this Note is designated as a Floating Rate/Fixed
Rate Note above, then, except as described below, this Note shall bear
interest at the rate determined by reference to the applicable
Interest Rate Basis shown above (i) plus or minus the
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applicable Spread, if any, and/or (ii) multiplied by the applicable
Spread Multiplier, if any, specified and applied in the manner
described above. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note is payable shall be reset as of
each Interest Reset Date specified above; provided, however, that (i)
the interest rate in effect for the period from the Original Issue
Date to the Initial Interest Reset Date shall be the Initial Interest
Rate; and (ii) unless specified above, the interest rate in effect
commencing on, and including, the Fixed Rate Commencement Date to the
Maturity shall be the Fixed Interest Rate, if such a rate is specified
above, or if no such Fixed Interest Rate is so specified, the interest
rate in effect hereon on the day immediately preceding the Fixed Rate
Commencement Date.
3. If this Note is designated as an Inverse Floating
Rate Note above, then, except as described below, this Note will bear
interest equal to the Fixed Interest Rate indicated above minus the
rate determined by reference to the applicable Interest Rate Basis
shown above (i) plus or minus the applicable Spread, if any, and/or
(ii) multiplied by the applicable Spread Multiplier, if any, specified
and applied in the manner described above; provided, however, that the
interest rate hereon will not be less than zero percent. Commencing
on the Initial Interest Reset Date, the rate at which interest on this
Note is payable shall be reset as of each Interest Rate Reset Date
specified above; provided, however, that the interest rate in effect
for the period from the Original Issue Date to the Initial Interest
Reset Date shall be the Initial Interest Rate.
4. Notwithstanding the foregoing, if this Note is
designated above as having an Addendum attached, the Note shall bear
interest in accordance with the terms described in such Addendum. If
interest on this Note is to be calculated in accordance with the terms
of an attached Addendum, unless otherwise specified in such Addendum,
commencing on the Initial Interest Reset Date, the rate at which
interest on this Note is payable shall be reset as of each Interest
Rate Reset Date specified above; provided, however, that the interest
rate in effect for the period from the Original Issue Date to the
Initial Interest Reset Date shall be the Initial Interest Rate.
Except as provided above, the interest rate in effect on each day
shall be (a) if such day is an Interest Reset Date, the interest rate
determined on the Interest Determination Date (as defined below) immediately
preceding such Interest Reset Date or (b) if such day is not an Interest Reset
Date, the interest rate determined on the Interest Determination Date
immediately preceding the next preceding Interest Reset Date. Each Interest
Rate Basis shall be the rate determined in accordance with the applicable
provision below. If any Interest Reset Date (which term includes the term
Initial Interest Reset Date unless the context otherwise requires) would
otherwise be a day that is not a Business Day, such Interest Reset Date shall
be postponed to the next succeeding day that is a Business Day, except that if
an Interest Rate Basis specified on the face hereof is LIBOR and such next
Business Day falls in the next succeeding calendar month, such Interest Reset
Date shall be the next preceding Business Day.
Unless otherwise specified above, interest payable on this Note on any
Interest Payment Date shall be the amount of interest accrued from and
including the next preceding Interest
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Payment Date in respect of which interest has been paid (or from and including
the Original Issue Date specified above, if no interest has been paid), to but
excluding the related Interest Payment Date; provided, however, that the
interest payments on Maturity will include interest accrued to but excluding
such Maturity. Unless otherwise specified above, Notes calculated on an
Actual/360 basis and Actual/Actual basis (as specified above), accrued interest
for each Interest Calculation Period will be calculated by multiplying (i) the
face amount hereof, (ii) the applicable interest rate, and (iii) the actual
number of days in the related Interest Calculation Period, and dividing the
resulting product by 360 or 365, as applicable (or, with respect to an
Actual/Actual basis Floating Rate Note, if any portion of the related Interest
Calculation Period falls in a leap year, the product of (i) and (ii) above will
be multiplied by the sum of (X) the actual number of days in that portion of
the related Interest Calculation Period falling in a leap year divided by 366
and (Y) the actual number of days in that portion of such Interest Calculation
Period falling in a non-leap year divided by 365). For Notes calculated on a
30/360 basis (as specified above), accrued interest for an Interest Calculation
Period will be computed on the basis of a 360-day year of twelve 30-day months,
irrespective of how many days are actually in such Interest Calculation Period.
Unless otherwise specified above and/or in an attached Addendum hereto, if this
Note accrues interest on a 30/360 basis, if any Interest Payment Date or the
date of Maturity falls on a day that is not a Business Day, the related payment
of principal or interest will be made on the next succeeding Business Day as if
made on the date such payment was due, and no interest will accrue on the
amount so payable for the period from and after such Interest Payment Date or
Maturity, as the case may be. As used herein, "Interest Calculation Period"
means with respect to any period, the period from and including the most recent
Interest Reset Date (or from and including the original issue date in the case
of the first Interest Reset Date) to but excluding the next succeeding Interest
Reset Date for which accrued interest is being calculated. Unless otherwise
specified above interest with respect to Notes for which the interest rate is
calculated with reference to two or more Interest Rate Bases will be calculated
in the same manner as if only one of the applicable Interest Rate Bases
applied.
Unless otherwise specified above, the "Interest Determination Date"
with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate, and the Prime Rate will be the second Business Day
preceding each Interest Reset Date; the "Interest Determination Date" with
respect to LIBOR shall be the second London Business Day (as defined below)
preceding each Interest Reset Date; the "Interest Determination Date" with
respect to the Treasury Rate will be the day in the week in which the related
Interest Reset Date falls on which day Treasury bills (as defined below)
normally would be auctioned (Treasury bills are normally sold at auction on
Monday of each week, unless that day is a legal holiday, in which case the
auction is normally held on the following Tuesday, except that such auction may
be held on the preceding Friday); provided, however, that if, as a result of a
legal holiday, an auction is held on the Friday of the week preceding the
related Interest Reset Date, the related Interest Determination Date shall be
such preceding Friday; and provided, further, that if an auction shall fall on
any Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following such auction. If the interest rate of this Note
is determined with reference to two or more Interest Rate Bases, the Interest
Determination Date pertaining to this Note will be the first Business Day which
is at least two Business Days prior to such Interest
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Reset Date on which each Interest Rate Basis shall be determinable. Each
Interest Rate Basis shall be determined and compared on such date, and the
applicable interest rate shall take effect on the related Interest Reset Date.
Unless otherwise specified above, the "Calculation Date" pertaining to
any Interest Determination Date will be the earlier of (i) the tenth calendar
day after such Interest Determination Date or, if such day is not a Business
Day, the next succeeding Business Day, or (ii) the Business Day preceding the
applicable Interest Payment Date or date of Maturity, as the case may be. All
calculations on this Note shall be made by the Calculation Agent specified
above or such successor thereto as is duly appointed by the Company.
All percentages resulting from any calculation on this Note will be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards (e.g., 9.876545% (or
.09876545) would be rounded to 9.87655% (or .0987655)), and all dollar amounts
used in or resulting from such calculation will be rounded to the nearest cent
(with one-half cent being rounded upward).
As used herein, "Business Day" means any day other than a Saturday or
Sunday or any other day on which banks in The City of New York are generally
authorized or obligated by law or executive order to close and, if the
applicable Interest Rate Basis shown above is LIBOR, is also a London Business
Day.
As used herein, "London Business Day" means any day (a) if the Index
Currency specified above is other than the European Currency Unit ("ECU"), on
which dealings in deposits in such Index Currency are transacted in the London
interbank market or (b) if the Index Currency specified above 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.
Determination of CD Rate. If an Interest Rate Basis for this Note is
the CD Rate, as indicated above, the CD Rate shall be determined on the
applicable Interest Determination Date (a "CD Rate Interest Determination
Date"), as the rate on such date for negotiable certificates of deposit having
the Index Maturity specified above as published by the Board of Governors of
the Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates" or any successor publication ("H.15(519)"), under the heading "CDs
(Secondary Market)", or, if not so published by 3:00 P.M., New York City time,
on the related Calculation Date, the rate on such CD Rate Interest
Determination Date for negotiable certificates of deposit of the Index Maturity
specified above as published by the Federal Reserve Bank of New York in its
statistical release "Composite 3:30 P.M. Quotations for U.S. Government
Securities" or any successor publication ("Composite Quotations") under the
heading "Certificates of Deposit". 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, then the CD Rate on such CD Rate Interest Determination Date
will be calculated by the Calculation Agent and will be the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the secondary market
offered rates as of 10:00 A.M.,
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New York City time, on such CD Rate Interest Determination Date of three
leading non-bank 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 market banks in the market
for negotiable certificates of deposit with a remaining maturity closest to the
Index Maturity designated above in an amount that is representative for a
single transaction in that market at that time; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting as set
forth above, the CD Rate determined on such CD Rate Interest Determination Date
shall be the CD Rate in effect on such CD Rate Interest Determination Date.
CMT Rate Notes. If an Interest Rate Basis for this Note is the CMT
Rate the CMT Rate shall be determined on the related Interest Determination
Date (a "CMT Rate Interest Determination Date"), as the rate displayed on the
Designated CMT Telerate Page 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 for (i) if
the Designated CMT Telerate Page is 7055, the rate on such CMT Rate 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 related CMT Rate 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 related Calculation Date, then the CMT Rate for such CMT
Rate 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 related Calculation Date, then the CMT Rate for such CMT Rate
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 Rate 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 related Calculation Date, then the CMT
Rate for the CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the secondary market
closing offer side prices as of approximately 3:30 P.M. (New York City time) on
the CMT Rate 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 Note") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to
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
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be calculated by the Calculation Agent and will be a yield to maturity based on
the arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one millionths of a percentage point rounded
upwards) of the secondary market offer side prices as of approximately 3:30
P.M. (New York City time) on the CMT Rate 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 maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100 million. 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 (rounded to the nearest one
hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of the offer prices obtained and neither the
highest nor lowest of such quotes will be eliminated; provided however, that if
fewer than three Reference Dealers as selected as aforesaid by the Calculation
Agent are quoting as described herein, the CMT Rate will be the CMT Rate in
effect on such CMT Rate 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 maturity
will be used.
"Designated CMT Telerate Page" means the display on the Dow Jones
Telerate Service on the page designated above (or any other page as may replace
such page on that service for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519)), for the purpose of displaying Treasury
Constant Maturities as reported in H.15(519). If no such page is specified
above, the Designated CMT Telerate Page shall be 7052, for the most recent
week.
"Designated CMT Maturity Index" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20, or 30 years)
specified above with respect to which the CMT Rate will be calculated. If no
such maturity is specified above, the Designated CMT Maturity Index shall be 2
years.
Determination of Commercial Paper Rate. If an Interest Rate Basis for
this Note is the Commercial Paper Rate, as indicated above, the Commercial
Paper Rate shall be determined on the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date"), as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity specified above as published in H.15(519), under the heading
"Commercial Paper". In the event such rate is not published by 3:00 P.M., New
York City time, on the related Calculation Date, then the Commercial Paper Rate
shall be the Money Market Yield on such Commercial Paper Rate Interest
Determination Date of the rate for commercial paper having the Index Maturity
shown above as published in Composite Quotations under the heading "Commercial
Paper" (with an Index Maturity of one month or three months being deemed to be
equivalent to an Index Maturity of 30 days or 90 days, respectively). If by
3:00 P.M., New York City time, on the related Calculation Date such rate is not
yet published in either H.15(519) or Composite Quotations, then the Commercial
Paper Rate for such
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Commercial Paper Rate Interest Determination Date shall be as calculated by the
Calculation Agent and shall be the Money Market Yield of the arithmetic mean
(rounded to the nearest one hundred-thousandth of a percentage point, with five
one millionths of a percentage point rounded upwards) of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity specified above 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 as mentioned in this sentence, the
Commercial Paper Rate determined on such Commercial Paper Rate Interest
Determination Date shall be the rate in effect on such Commercial Paper Rate
Interest Determination Date.
"Money Market Yield" shall be a yield (expressed as a percentage
rounded upwards 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)
where "D" refers to the applicable per annum rate for commercial paper quoted
on a bank discount basis and expressed as a decimal and "M" refers to the
actual number of days in the interest period for which interest is being
calculated.
Determination of Federal Funds Rate. If an Interest Rate Basis for
this Note is the Federal Funds Rate, as indicated above, the Federal Funds Rate
shall be determined on the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date"), as the rate on that date for Federal
Funds as published in H.15(519) under the heading "Federal Funds (Effective)"
or, if not so published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date, as published in Composite Quotations under the heading "Federal
Funds/Effective Rate." If such rate is not yet published in either H.15(519)
or Composite Quotations by 3:00 P.M., New York City time, on the related
Calculation Date, the Federal Funds Rate for such Federal Funds Rate Interest
Determination Date shall be calculated by the Calculation Agent and shall be
the arithmetic mean (rounded to the nearest one hundred-thousandth of a
percentage point, with five one millionths of a percentage point rounded
upwards) of the rates for the last transaction in overnight United States
dollar Federal funds arranged by three leading brokers of Federal funds
transactions in The City of New York selected by the Calculation Agent prior to
9:00 A.M., New York City time on such Federal Funds Rate Interest Determination
Date; provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the Federal
Funds Rate determined on such Federal Funds Rate Interest Determination Date
shall be the Federal Funds Rate in effect on such Federal Funds Rate Interest
Determination Date.
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Determination of LIBOR. If an Interest Rate Basis for this Note is
LIBOR, as indicated above, LIBOR will be determined on the applicable Interest
Determination Date (a "LIBOR Interest Determination Date"), and will be,
either: (a) if "LIBOR Reuters" is specified above, the arithmetic mean (rounded
to the nearest one hundred-thousandth of a percentage point, with five one
millionths of a percentage point rounded upwards) of the offered rates (unless
the specified Designated LIBOR Page by its terms provides only for a single
rate, in which case such single rate shall be used) for deposits in the Index
Currency having the Index Maturity designated above, commencing on the second
London Business Day immediately following that LIBOR Interest Determination
Date, that appear on the Designated LIBOR Page specified above as of 11:00 A.M.
London time, on that LIBOR Interest Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is required) on
such Designated LIBOR Page, or (b) if "LIBOR Telerate" is specified above, the
rate for deposits in the Index Currency having the Index Maturity designated
above commencing on the second London Business Day immediately following that
LIBOR Interest Determination Date, that appears on the Designated LIBOR Page
specified above as of 11:00 A.M. London time, on that LIBOR Interest
Determination Date. If, as described in the immediately preceding sentence,
fewer than two offered rates appear, or no rate appears, LIBOR in respect of
the related LIBOR Interest Determination Date will be determined as if the
parties had specified the rate described in the immediately succeeding
paragraph.
With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, the
Calculation Agent shall request the principal London offices of each of four
major reference banks in the London interbank market, as selected by the
Calculation Agent, to provide the Calculation Agent with its offered quotation
for deposits in the Index Currency for the period of the Index Maturity shown
above, commencing on the second London Business Day immediately following such
LIBOR Interest Determination Date, to prime banks in the London interbank
market at approximately 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 the Index Currency in such market at such time. If at
least two such quotations are provided, LIBOR determined on such LIBOR Interest
Determination Date shall be the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of such quotations as determined by the
Calculation Agent. If fewer than two quotations are provided, LIBOR determined
on such LIBOR Interest Determination Date shall be calculated by the
Calculation Agent as the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of the rates quoted at approximately 11:00
A.M. (or such other time specified above under "OTHER PROVISIONS") in the
applicable Principal Financial Center(s), on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center(s) selected by the
Calculation Agent for loans in the Index Currency to leading European banks
having the Index Maturity specified above and in a principal amount that is
representative for a single transaction in the Index 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 shall be LIBOR in effect
on such LIBOR Interest Determination Date.
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"Index Currency" means the currency (including composite currencies)
specified above as the currency for which LIBOR shall be calculated. If no
such currency is specified above, the Index Currency shall be U.S. dollars.
"Designated LIBOR Page" means either (a) if "LIBOR Reuters" is
designated above, the display on the Reuters Monitor Money Rates Service on the
page designated above (or such other page as may replace such designated page
on that service for the purpose of displaying London interbank offered rates of
major banks) for the related Index Currency for the purpose of displaying the
London interbank rates of major banks for the applicable Index Currency, or (b)
if "LIBOR Telerate" is designated above, the display on the Dow Jones Telerate
Service on the page designated above (or such other page as may replace such
designated page on that service or such other service or services as may be
nominated by the British Bankers' Association for the purpose of displaying
London interbank offered rates for the related Index Currency) for the purpose
of displaying the London interbank rates of major banks for the applicable
Index Currency. If neither LIBOR Reuters nor LIBOR Telerate is specified
above, LIBOR for the applicable Index Currency will be determined as if LIBOR
Telerate (and, in the case U.S. dollars is the Index Currency, page 3750) had
been specified.
"Principal Financial Center" will generally be the capital city of the
country of the specified index Currency, except that with respect to United
States dollars, Deutsche Marks, Dutch Guilders, Italian Lire, Swiss Francs and
ECUs, the Principal Financial Center shall be the City of New York, Frankfurt,
Amsterdam, Milan, Zurich and Luxembourg, respectively.
Determination of Prime Rate. If an Interest Rate Basis for this Note
is the Prime Rate, as indicated above, the Prime Rate shall be determined on
the applicable Interest Determination Date (a "Prime Rate Interest
Determination Date") as the rate on such date as such rate is published in
H.15(519) under the heading "Bank Prime Loan." If such rate is not published
prior to 3:00 P.M., New York City time, on the related Calculation Date, then
the Prime Rate shall be the arithmetic mean (rounded to the nearest one
hundred-thousandth of a percentage point, with five one millionths of a
percentage point rounded upwards) of the rates of interest publicly announced
by each bank that appears on the Reuters Screen NYMF Page as such bank's prime
rate or base lending rate as in effect for that Prime Rate Interest
Determination Date. If fewer than four such rates but more than one such rate
appear on the Reuters Screen NYMF Page for such Prime Rate Interest
Determination Date, the Prime Rate shall be the arithmetic mean (rounded to the
nearest one hundred-thousandth of a percentage point, with five one millionths
of a percentage point rounded upwards) of the prime rates quoted on the basis
of the actual number of days in the year divided by a 360-day year as of the
close of business on such Prime Rate Interest Determination Date by four major
money center banks in The City of New York selected by the Calculation Agent.
If fewer than two such rates appear on the Reuters Screen NYMF Page, the Prime
Rate will be determined by the Calculation Agent on the basis of the rates
furnished in The City of New York by three substitute banks or trust companies
organized and doing business under the laws of the United States, or any state
thereof, having total equity capital of at least $500 million and being subject
to supervision or examination by Federal or state authority, selected by the
Calculation Agent to provide such rate or rates; provided, however, that if the
banks or trust companies selected as aforesaid are not quoting as
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mentioned in this sentence, the Prime Rate for such Prime Rate Interest
Determination Date will be the Prime Rate 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 NYMF page on that service for the purpose of displaying prime rates or base
lending rates of major United States banks).
Determination of Treasury Rate. If an Interest Rate Basis for this
Note is the Treasury Rate, as specified above, the Treasury Rate shall be
determined on the applicable Interest Determination Date (a "Treasury Rate
Interest Determination Date") as the rate applicable to the most recent auction
of direct obligations of the United States ("Treasury bills") having the Index
Maturity specified above, as such rate is published in H.15(519) under the
heading "U.S. Government Securities -- Treasury Bills -- auction average
(investment)" or, if not so published by 3:00 P.M., New York City time, on the
related Calculation Date, the auction average rate (expressed as a bond
equivalent yield on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) as otherwise announced by the United States
Department of the Treasury. In the event that the results of the auction of
Treasury bills having the Index Maturity specified above are not reported as
provided 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 hereon shall
be the rate published in H.15(519) under the heading "U.S. Government
Securities--Treasury Bills--Secondary Market" (expressed as a bond equivalent
yield on the basis of a 365 or 366 day year, as applicable, on a daily basis),
or if not published by 3:00 P.M. New York City time on the related Calculation
Date, the Treasury Rate will be calculated by the Calculation Agent and shall
be a yield to maturity (expressed as a bond equivalent yield on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean (rounded to the nearest one hundred-thousandth of a percentage
point, with five one millionths of a percentage point rounded upwards) 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 as selected by the Calculation
Agent for the issue of Treasury bills with a remaining Maturity closest to the
Index maturity specified above; provided, however, that if the dealers selected
as aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the Treasury Rate will be the Treasury Rate in effect on such
Treasury Rate Interest Determination Date.
Notwithstanding anything to the contrary contained herein or in the
Indenture, for purposes of determining the rights of a Holder of a Note for
which the principal thereof is determined by reference to the price or prices
of specified commodities or stocks, interest rate indices, interest or exchange
rate swap indices, the exchange rate of one or more specified currencies
(including a composite currency such as the European Currency Unit) relative to
an indexed currency or such other price, exchange rate or other financial index
or indices as specified above (an "Indexed Note"), in respect of voting for or
against amendments to the Indenture and modifications and the waiver of rights
thereunder, the principal amount of any such Indexed Note shall be deemed to be
equal to the face amount thereof upon issuance. The
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method for determining the amount of principal payable at Maturity on an
Indexed Note will be specified in an attached Addendum.
Any provision contained herein with respect to the determination of
an Interest Rate Basis, the specification of Interest Rate Basis, calculation
of the Interest Rate applicable to this Note, its payment dates or any other
matter relating hereto may be modified as specified in an Addendum relating
hereto if so specified above, and references herein to "as specified above" or
similar language of like import shall also be references to any such Addendum.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified above. The Calculation Agent shall calculate
the interest rate hereon in accordance with the foregoing on or before each
Calculation Date. The interest rate on this Note will in no event be higher
than the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
At the request of the Holder hereof, the Calculation Agent shall
provide to the Holder hereof the interest rate hereon then in effect and, if
determined, the interest rate which shall become effective as of the next
Interest Reset Date.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
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 Securities of each series to be
affected thereby at any time by the Company and the Trustee with the consent of
the majority of the Holders of the aggregate principal amount of the
Outstanding Securities of each series affected thereby. The Indenture also
contains provisions permitting the Holders of a majority in aggregate principal
amount of the Securities of each series at the time Outstanding, on behalf of
the Holders of all the Securities 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 in exchange herefor 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 obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note
at the time, place and rate, and in the coin or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note may be registered on the Security
Register of the Company, upon surrender
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of this Note for registration of transfer at the office or agency of the
Company in the Borough of Manhattan, The City of New York, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or by
its attorney duly authorized in writing, and thereupon one or more new Notes of
authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and integral multiples thereof. As provided in the
Indenture and subject to certain limitations therein set forth, the Notes are
exchangeable for a like aggregate principal amount of Notes as requested by the
Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this Note is registered as the owner hereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and the Notes shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its
corporate seal to be imprinted hereon.
(FACSIMILE OF SEAL) KIRBY CORPORATION
By:_____________________________________
Title:__________________________________
Attest:
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By:__________________________________
CERTIFICATE OF AUTHENTICATION
This is one of the series of Debt
Securities issued under the within
mentioned Indenture.
TEXAS COMMERCE BANK NATIONAL ASSOCIATION,
as Trustee
By ______________________________
As Authenticating Agent
By ______________________________
Authorized Signatory
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to the principal amount hereof together with interest to
the repayment date, to the undersigned, at
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Paying Agent must receive at its
principal office, or at such other place or places of which the Company shall
from time to time notify the Holder of this Note, not more than 60 nor less
than 30 days prior to an Optional Repayment Date, if any, shown on the face of
this Note, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of $1,000) which the
Holder elects to have repaid and specify the denomination or denominations
(which shall be $1,000 or an integral multiple thereof) of the Notes to be
issued to the Holder for the portion of this Note not being repaid (in the
absence of any such specification, one such Note will be issued for the portion
not being repaid).
$_________________________________ ________________________________________
NOTICE: The signature on this
Date: _________________________ Option to Elect Repayment must
correspond with the name as written
upon the face of this Note in every
particular, without alteration or
enlargement or any change whatever.
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ASSIGNMENT/TRANSFER FORM
FOR VALUE RECEIVED the undersigned registered Holder hereby sell(s),
assign(s) and transfer(s) unto
(insert Taxpayer Identification No.)____________________________________________
________________________________________________________________________________
________________________________________________________________________________
(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: _________________ ___________________________________________
NOTICE: The signature of the registered Holder 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 whatsoever.
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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
UNIF GIFT MIN ACT--...................Custodian............
(Cust) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
TEN ENT--as tenants by the entireties
JT TEN--as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
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ADDENDUM TO KIRBY CORPORATION
MEDIUM-TERM NOTES
1