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EXHIBIT 4.5
Floating Rate Subordinated Note
REGISTERED REGISTERED
No. FLR Cusip
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.*
IF APPLICABLE, THE "TOTAL AMOUNT OF OID",
"ORIGINAL YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE
APPROXIMATE METHOD) SET FORTH BELOW HAS
BEEN COMPLETED SOLELY FOR THE PURPOSES OF
APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
WILLIAMS HOLDINGS OF DELAWARE, INC.
SUBORDINATED MEDIUM-TERM NOTE
(Floating Rate)
BASE RATE: ORIGINAL ISSUE DATE: MATURITY DATE:
APPLICABILITY OF INTEREST ACCRUAL DATE: INTEREST PAYMENT DATES:
MODIFIED FOLLOWING
BANKING DAY INITIAL INTEREST INTEREST RESET PERIOD:
CONVENTION: DATE:
INITIAL INTEREST RESET INTEREST RESET DATES:
INDEX MATURITY: DATE:
__________
* Applies only if this Note is a Registered Global Security.
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SPREAD (PLUS OR MAXIMUM INTEREST RATE:
MINUS):
MINIMUM INTEREST RATE:
ALTERNATE RATE INITIAL REDEMPTION DATE: SPECIFIED CURRENCY:
EVENT SPREAD:
TOTAL AMOUNT OF OID:
SPREAD MULTIPLIER: INITIAL REDEMPTION ORIGINAL YIELD TO
PERCENTAGE: MATURITY:
INITIAL REPAYMENT ANNUAL REDEMPTION INITIAL ACCRUAL
DATE: PERCENTAGE REDUCTION: PERIOD OID:
INITIAL REPAYMENT
PERCENTAGE:
ANNUAL REPAYMENT
PERCENTAGE REDUCTION:
TRUSTEE'S [AND/OR AUTHENTICATING AGENT'S] CERTIFICATE[S] OF AUTHENTICATION
This is one of the Notes referred to in the within-mentioned Subordinated
Indenture.
Citibank, N.A.,
as Trustee
By:__________________________
Authorized Officer
[___________________________,
as Authenticating Agent
By:__________________________
Authorized Officer]
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Williams Holdings of Delaware, Inc., a Delaware corporation (the
"Issuer"), for value received, hereby promises to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above, (except to the extent redeemed or repaid
prior to the Maturity Date) and to pay interest thereon, from the Original
Issue Date specified above at a rate per annum equal to the Initial Interest
Rate specified above until the Initial Interest Reset Date specified above, and
thereafter at a rate per annum determined in accordance with the provisions
specified on the reverse hereof until the principal hereof is paid or duly made
available for payment. The Issuer will pay interest in arrears monthly,
quarterly, semiannually or annually as specified above as the Interest Payment
Period on each Interest Payment Date (as specified above), commencing with the
first Interest Payment Date next succeeding the Original Issue Date specified
above, and on the Maturity Date (or any redemption or repayment date);
provided, however, that if the Original Issue Date occurs between a Record
Date, as defined below, and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date succeeding the
Original Issue Date to the registered holder of this Note on the Record Date
with respect to such second Interest Payment Date; and provided, further, that
if an Interest Payment Date or the Maturity Date or redemption or repayment
date would fall on a day that is not a Business Day, as defined on the reverse
hereof, such Interest Payment Date, Maturity Date or redemption or repayment
date shall be the following day that is a Business Day, except that if the
Modified Following Banking Day Convention is specified above as applicable and
such next Business Day falls in the next calendar month, the Interest Payment
Date, Maturity Date or redemption or repayment date shall be the immediately
preceding day that is a Business Day.
Interest on this Note will accrue from the most recent Interest
Payment Date to which interest has been paid or duly provided for or, if no
interest has been paid or duly provided for, from the Original Issue Date or,
if the Interest Reset Period specified above is daily or weekly, from, and
including, the date hereof (if no interest has been paid on this Note) or from,
and excluding, the last date in respect of which interest has been paid or duly
provided for, as the case may be. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note (or
one or more predecessor
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Notes) is registered at the close of business on the date 15 calendar days
prior to an Interest Payment Date (whether or not a Business Day) (the "Record
Date"); provided, however, that interest payable on the Maturity Date (or any
redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date) will be
made in immediately available funds upon surrender of this Note at the office
or agency of the Trustee, as defined on the reverse hereof, or at the office or
agency of such paying agent as the Issuer may determine maintained for that
purpose in the Borough of Manhattan, The City of New York, or at the office or
agency of such other paying agency as the Issuer may determine. Payment of the
principal of and premium, if any, and interest on this Note will be made in
such coin or currency of the United States of America or in a Specified
Currency other than U.S. dollars as indicated herein as at the time of payment
is legal tender for payment of public and private debts; provided, however,
that U.S. dollar payments of interest, other than interest due at maturity or
any date of redemption or repayment, will be made by United States dollar check
mailed to the address of the person entitled thereto as such address shall
appear in the Note register. A holder of U.S. $10,000,000 or more in aggregate
principal amount of Notes having the same Interest Payment Date will be
entitled to receive payments of interest, other than interest due at maturity
or any date of redemption or repayment, by wire transfer of immediately
available funds if appropriate wire transfer instructions in writing have been
received by the Trustee or any Paying Agent not less than 15 calendar days
prior to the applicable Interest Payment Date. Payments of interest on Notes
in a Specified Currency other than U.S. dollars will be made by wire transfer
of immediately available funds to an account maintained by the holder with a
bank located outside the United States, and the holder of such Notes shall
provide the Trustee or any Paying Agent with the appropriate wire transfer
instructions.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place, including, without
limitation, the provisions relating to the subordination of this Note to the
Issuer's Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been executed
by the Trustee or by the Authenticating Agent, referred to on the reverse
hereof, by manual signature, this Note shall not be entitled to any benefit
under the Subordinated Indenture, as defined on the reverse hereof, or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed under its corporate seal.
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DATED: WILLIAMS HOLDINGS OF DELAWARE, INC.
By: ________________________________
Title:
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This Note is one of the duly authorized issue of Subordinated
Medium-Term Notes having maturities more than nine months from the date of
issue (the "Notes") of the Issuer. The Notes are issuable under a Subordinated
Indenture, dated as of _______________, 199__ (herein called the "Subordinated
Indenture") between the Issuer and Citibank, N.A. as Trustee (herein called the
"Trustee", which term includes any successor trustee under the Subordinated
Indenture), to which Subordinated Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities of the Issuer, the Trustee and
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Trustee has appointed _______________ as
Authenticating Agent (the "Authenticating Agent," which terms includes any
successor authenticating agent appointed by the Trustee) with respect to the
Notes, and the Issuer has appointed the Trustee at its corporate trust office
in The City of New York as registrar and as a Paying Agent with respect to the
Notes. The terms of individual Notes may vary with respect to interest rates,
interest rate formulas, issue dates, maturity dates, or otherwise, all as
provided in the Subordinated Indenture. To the extent not inconsistent
herewith, the terms of the Subordinated Indenture are hereby incorporated by
reference herein.
Unless otherwise indicated on the face of this Note, this Note may
not be redeemed prior to the Maturity Date. If so indicated on the face of
this Note, this Note may be redeemed at the option of the Issuer, on or after a
specified date or dates prior to the Maturity Date on the terms set forth on
the face hereof, together with interest accrued and unpaid thereon to the date
of redemption. Notice of redemption shall be mailed to the registered holders
of the Notes designated for redemption at their addresses as the same shall
appear on the Note register not less than 30 nor more than 60 days prior to the
date fixed for redemption, subject to all the conditions and provisions of the
Subordinated Indenture. In the event of redemption of this Note in part only,
a new Note or Notes for the amount of the unredeemed portion hereof shall be
issued in the name of the holder hereof upon the cancellation hereof.
Unless otherwise indicated on the face of this Note, this Note may
not be repaid prior to the Maturity Date. If so indicated on the face of this
Note, this Note may be subject to repayment at the option of the holder, on or
after a specified date or dates prior to the Maturity Date on the terms set
forth on the face hereof, together with interest accrued and unpaid thereon to
the date of repayment. For this Note to be repaid in whole or in part at the
option of the holder hereof, the Paying Agent must receive not less than 30 or
more than 45 days prior to the Repayment Date (i) the Note with the form
entitled "Option to Elect Repayment" below duly completed or (ii) a telegram,
telex, facsimile transmission or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. or
a commercial bank or a trust company in the United States of America
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setting forth the name of the holder of this Note, the principal amount hereof,
the certificate number of this Note or a description of the Note's tenor or
terms, the principal amount hereof to be prepaid, a statement that the option
to elect repayment is being exercised thereby and a guarantee that this Note
with the form entitled "Option to Elect Repayment" below duly completed will be
received by the Paying Agent no later than five Business Days after the date of
such telegram, telex, facsimile transmission or letter and this Note and form
duly completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option shall be irrevocable. Such option may be
exercised by the holder for less than the entire principal amount hereof
provided that the principal amount remaining outstanding after repayment is at
least $100,000 or any larger amount that is an integral multiple of $1,000. In
the event of repayment of this Note in part only, a new Note or Notes for the
amount of the portion hereof that is not repaid shall be issued in the name of
the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in accordance
with the applicable provisions below by reference to the Base Rate shown on the
face hereof based on the Index Maturity, if any, shown on the face hereof (i)
plus or minus the Spread, if any, or (ii) multiplied by the Spread Multiplier,
if any, specified on the face hereof. Commencing with the Initial Interest
Reset Date specified on the face hereof, the rate at which interest on this
Note is payable shall be reset as of each Interest Reset Date (as used herein,
the term "Interest Reset Date" shall include the Initial Interest Reset Date).
The Interest Reset Dates will be the Interest Reset Dates specified on the face
hereof; provided, however, that (i) the interest rate in effect for the period
from the Original Issue Date to the Initial Interest Reset Date specified on
the face hereof will be the Initial Interest Rate, (ii) the interest rate in
effect hereon for the 15 days immediately prior to the Maturity Date hereof
(or, with respect to any principal amount to be redeemed or repaid, any
redemption or repayment date) shall be that in effect on the 15th day preceding
the Maturity Date hereof or such date of redemption or repayment, as the case
may be, and (iii) if any Note is issued between a Record Date and the related
Interest Payment Dates, and such Note has daily or weekly Interest Reset Dates,
then notwithstanding the fact that an Interest Reset Date may occur prior to
such Interest Payment Date, the Initial Interest Rate set forth on the face
hereof shall remain in effect through the first Interest Reset Date occurring
on or subsequent to such Interest Payment Date. If any Interest Reset Date
would otherwise be a day that is not a Business Day, such Interest Reset Date
shall be postponed to the next succeeding day that is a Business Day, except
that in the event the Modified Following Banking Date Convention is specified
on the face hereof as applicable and such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the next preceding
Business Day. As used herein, "Business Day" means any day, other than a
Saturday or Sunday, and that is neither a legal holiday nor a day on which
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banking institutions are authorized or required by law or regulation to close
in The City of New York and (i) with respect to Notes denominated in a
Specified Currency other than U.S. dollars or European Currency Units ("ECUs"),
in the capital city of the country of the Specified Currency, (ii) with respect
to Notes denominated in ECUs, in Brussels, Belgium and (iii) with respect to
Notes bearing interest calculated by reference to LIBOR, in the City of London.
The Interest Determination Date pertaining to an Interest Reset
Date for Notes bearing interest calculated by reference to the CD Rate,
Commercial Paper Rate, Federal Funds Rate and Prime Rate will be the second
Business Day next preceding such Interest Reset Date. The Interest
Determination Date pertaining to an Interest Reset Date for Notes bearing
interest calculated by reference to LIBOR shall be the second London Business
Day preceding such Interest Reset Date. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated by
reference to the Treasury Rate shall be the day of the week in which such
Interest Reset Date falls on which Treasury bills normally would be auctioned;
provided, however, that if as a result of a legal holiday an auction is held on
the Friday of the week preceding such Interest Reset Date, the related Interest
Determination Date shall be such preceding Friday; and provided, further, that
if an auction shall fall on any Interest Reset Date, then the Interest Reset
Date shall instead be the first Business Day following the date of such
auction.
Determination of CD Rate. If the Base Rate specified on the face
hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on such
date for negotiable certificates of deposit having the Index Maturity specified
on the face hereof as published by the Board of Governors of the Federal
Reserve System in "Statistical Release H.15(519), Selected Interest Rates," or
any successor publication of the Board of Governors of the Federal Reserve
System ("H.15(519)"), under the heading "CDs (Secondary Market)," or, if not so
published by 9:00 A.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the CD Rate will be the rate on such
Interest Determination Date for negotiable certificates of deposit of the Index
Maturity specified on the face hereof as published by the Federal Reserve Bank
of New York in its daily statistical release "Composite 3:30 P.M. Quotations
for U.S. Government Securities" ("Composite Quotations") under the heading
"Certificates of Deposit." If neither of such rates is published by 3:00 P.M.,
New York City time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to on
the face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such Interest Determination
Date, for certificates of deposit in the denomination of $5,000,000 with a
remaining maturity closest to the Index Maturity specified on the face hereof
of three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The
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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 mentioned in this sentence, the rate of interest in effect for
the applicable period will be the same as the CD Rate for the immediately
preceding Interest Reset Period (or, if there was no such Interest Reset
Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial Paper
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein) of
the rate on such date for commercial paper having the Index Maturity specified
on the face hereof, as such rate shall be published in H.15(519) under the
heading "Commercial Paper," or if not so published prior to 9:00 A.M., New York
City time, on the Calculation Date pertaining to such Interest Determination
Date, the Commercial Paper Rate shall be the Money Market Yield of the rate on
such Interest Determination Date for commercial paper of the Index Maturity
specified on the face hereof as published in Composite Quotations under the
heading "Commercial Paper." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, then the Commercial Paper
Rate 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 Interest Determination Date
of three leading dealers in commercial paper in The City of New York selected
by the Calculation Agent for commercial paper of the Index Maturity specified
on the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent are
not quoting as mentioned in this sentence, the rate of interest in effect for
the applicable period will be the same as the Commercial Paper Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable hereon shall be the Initial Interest
Rate).
"Money Market Yield" shall be the yield calculated in accordance
with following formula:
D x 360 X 100
Money Market Yield = -------------
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.
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Determination of Federal Funds Rate. If the Base Rate specified
on the face hereof is the Federal Funds Rate, the Federal Funds Rate with
respect to this Note shall be determined on each Interest Determination Date
and shall be the rate on such date for Federal Funds as published in H.15(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 Interest
Determination Date, the Federal Funds Rate will be the rate on such Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If neither of such rates is published by 3:00
P.M., New York City time, on such Calculation Date, the Federal Funds Rate for
such Interest Determination Date will be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last transaction in
overnight Federal funds as of 11:00 A.M., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the rate of interest in
effect for the applicable period will be the same as the Federal Funds Rate for
the immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the Initial
Interest Rate).
Determination of LIBOR. If the Base Rate specified on the face
hereof is LIBOR, LIBOR with respect to this Note shall be determined on each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation Agent
shall determine the arithmetic mean of the offered rates for deposits in
United States dollars for the period of the Index Maturity specified on the
face hereof which appear on the Reuters Screen LIBO Page at approximately
11:00 A.M., London time, on such Interest Determination Date. "Reuters
Screen LIBO Page," as used herein, 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).
(ii) If fewer than two offered rates appear on the Reuters Screen
LIBO Page, the Calculation Agent will request the principal London offices
of each of four major banks in the London interbank market, as selected by
the Calculation Agent, to provide the Calculation Agent with its offered
quotation for deposits in United States dollars for the period of the Index
Maturity, specified on the face hereof, to prime banks in the London
interbank market at approximately 11:00 A.M., London time, on such Interest
Determination Date and in a principal amount of not less than U.S.
$1,000,000 that is representative for a single transaction in such market
at such time. If at least two such quotations are provided, LIBOR will be
the arithmetic mean of such quotations. If fewer than two quotations are
provided,
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LIBOR in respect of such Interest Determination Date will be the arithmetic
mean of the rates quoted by three major banks in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 A.M., New York City Time, on such Interest
Determination Date for loans in U.S. dollars to leading European banks, for
the period of the Index Maturity and in a principal amount of not less than
U.S. $1,000,000 that is representative of a single transaction in such
market at such time; provided, however, that if fewer than three banks
selected as aforesaid by the Calculation Agent are not quoting as mentioned
in this sentence, LIBOR for such Interest Reset Period will be the same as
LIBOR for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of Prime Rate. If the Base Rate specified on the
face hereof is the Prime Rate, the Prime Rate with respect to this Note shall
be determined on each Interest Determination Date and shall be the rate set
forth in H.15(519) for such date opposite the caption "Bank Prime Loan." If
such rate is not yet published by 9:00 A.M., New York City time, on the
Calculation Date, the Prime Rate for such Interest Determination Date will be
the arithmetic mean of the rates of interest publicly announced by each bank
named on the Reuters Screen NYMF Page as such bank's prime rate or base lending
rate as in effect for such Interest Determination Date as quoted on the Reuters
Screen NYMF Page on such Interest Determination Date, or, if fewer than four
such rates appear on the Reuters Screen NYMF Page for such 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 Interest Determination Date by at least two of
the three major money center banks in The City of New York selected by the
Calculation Agent from which quotations are requested. If fewer than two
quotations are provided, the Prime Rate shall be calculated by the Calculation
Agent and shall be determined as the arithmetic mean on the basis of the prime
rates in The City of New York by the appropriate number of substitute banks or
trust companies organized and doing business under the laws of the United
States, or any State thereof, in each case having total equity capital of at
least U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates.
If in any month or two consecutive months 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 the preceding paragraph, the "Prime Rate" for
such Interest Reset Period will be the same as the Prime Rate for the
immediately preceding Interest Reset Period (or, if there was no such Interest
Reset Period, the rate of interest payable hereon shall be the Initial Interest
Rate). If this failure continues over three or more consecutive months, the
Prime Rate for each succeeding Interest Determination Date until the
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maturity or redemption or repayment of this Note or, if earlier, until this
failure ceases, shall be LIBOR determined as if the Base Rate specified on the
face hereof were LIBOR, and the Spread, if any, shall be the number of basis
points specified on the face hereof as the "Alternative Rate Event Spread."
Determination of Treasury Rate. If the Base Rate specified on the
face hereof is the Treasury Rate, the Treasury Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the rate
for the auction held on such date of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof, as
published in H.15(519) under the heading "Treasury Bills--auction average
(investment)," or if not so published by 9:00 A.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the auction
average rate on such Interest Determination (expressed as a bond equivalent, on
the basis of a year of 365 or 366 days, as applicable, and applied on a daily
basis) as otherwise announced by the United States Department of the Treasury.
In the event that the results of the auction of Treasury Bills having the Index
Maturity specified on the face hereof are not published or reported as provided
above by 3:00 P.M., New York City time, on such Calculation Date or if no such
auction is held on such Determination Date, then the Treasury Rate shall be
calculated by the Calculation Agent and shall be a yield to maturity (expressed
as a bond equivalent, on the basis of a year of 365 days, as applicable, and
applied 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 Interest
Determination Date, of three leading primary United States government
securities dealers selected by the Calculation Agent for the issue of Treasury
Bills with a remaining maturity closest to the Index Maturity specified on the
face hereof; provided, however, that if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Treasury Rate for such Interest Reset Date will be the same as the Treasury
Rate for the immediately preceding Interest Reset Period (or if there was no
such Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Notwithstanding the foregoing, the interest rate hereon shall not
be greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, specified on the face hereof. The Calculation Agent
shall calculate the interest rate hereon in accordance with the foregoing on or
before each Calculation Date. The interest rate on this Note will in no event
be higher than the maximum rate permitted by New York law, as the same may be
modified by United States Federal law of general application.
At the request of the holder hereof, the Calculation Agent will
provide to the holder hereof the interest rate hereon then in effect and, if
determined, the interest rate that will become effective as of the next
Interest Reset Date.
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Interest payments on this Note will include interest accrued to
but excluding the Interest Payment Dates or Maturity Date (or any redemption or
repayment date), as the case may be; provided, however, that if the Interest
Reset Period with respect to this Note is daily or weekly, interest payable on
any Interest Payment Date, other than interest payable on any date on which
principal hereof is payable, will include interest accrued through and
including the Record Date next preceding the applicable Interest Payment Date.
Accrued interest hereon shall be an amount calculated by multiplying the face
amount hereof by an accrued interest factor. Such accrued interest factor
shall be computed by adding the interest factor calculated for each day in the
period for which interest is being paid. The interest factor for each such date
shall be computed by dividing the interest rate applicable to such day by 360
if the Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime
Rate or LIBOR, as specified on the face hereof, or by the actual number of days
in the year if the Base Rate is the Treasury Rate, as specified on the face
hereof. All percentages resulting from any calculation of the rate of interest
on this Note will be rounded, if necessary, to the nearest one
hundred-thousandth of a percentage point (.0000001), with five one-millionths
of a percentage point rounded upward, and all dollar amounts used in or
resulting from such calculation on this Note will be rounded to the nearest
cent (with one-half cent rounded upward). The interest rate in effect on any
Interest Reset Date will be the applicable rate as reset on such date. The
interest rate applicable to any other day is the interest rate from the
immediately preceding Interest Reset Date (or, if none, the Initial Interest
Rate).
This Note and all other obligations of the Issuer hereunder will
constitute part of the subordinated debt of the Issuer, will be issued under
the Subordinated Indenture and will be subordinate and junior in right of
payment, to the extent and in the manner set forth in the Subordinated
Indenture, to all "Senior Indebtedness" of the Issuer. The Subordinated
Indenture defines "Senior Indebtedness" as obligations (other than non-recourse
obligations, the debt securities, including this Note, issued under the
Subordinated Indenture or any other obligations specifically designated as
being subordinate in right of payment to Senior Indebtedness) of, or guaranteed
or assumed by, the Issuer for borrowed money or evidenced by bonds, debentures,
notes or other similar instruments, and amendments, renewals, extensions,
modifications and refundings of any such indebtedness or obligation.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, if
denominated in U.S. Dollars, is issuable only in denominations of U.S.
$100,000 and any integral multiple of U.S. $1,000 in excess thereof. If this
Note is denominated in a Specified Currency other than U.S. dollars, it is
issuable only in denominations of the equivalent of U.S. $100,000 (rounded down
to an integral multiple of 1,000 units of such Specified Currency), or any
amount in excess thereof which is an integral multiple of 1,000
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units of such Specified Currency, as determined by reference to the noon dollar
buying rate in New York City for cable transfers of such Specified Currency
published by the Federal Reserve Bank of New York (the "Market Exchange Rate")
on the Business Day immediately preceding the date of issuance; provided,
however, in the case of ECUs, the Market Exchange Rate shall be the rate of
exchange determined by the Commission of the European Communities (or any
successor thereto) as published in the official Journal of the European
Communities, or any successor publication on the Business Day immediately
preceding the day of issuance.
The Trustee has been appointed registrar for the Notes (the
"Registrar," which term includes any successor registrar appointed by the
Issuer), and the Registrar shall maintain at its office in the Borough of
Manhattan, The City of New York a register for the registration and transfer of
Notes. This Note may be transferred at the aforesaid office of the Registrar
by surrendering this Note for cancellation, accompanied by a written instrument
of transfer in form satisfactory to the Registrar and duly executed by the
registered holder hereof in person or by the holder's attorney duly authorized
in writing, and thereupon the Registrar shall issue in the name of the
transferee or transferees, in exchange herefor, a new Note or Notes having
identical terms and provisions for a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth herein;
provided, however, that the Registrar shall not be required (i) to register the
transfer of or exchange any Note that has been called for redemption in whole
or in part, except the unredeemed portion of Notes being redeemed in part, (ii)
to register the transfer of or exchange any Note if the holder thereof has
exercised his right, if any, to require the Issuer to repurchase such Note in
whole or in part, except the portion of such Note not required to be
repurchased, or (iii) to register the transfer of or exchange Notes to the
extent and during the period so provided in the Subordinated Indenture with
respect to the redemption of Notes. Notes are exchangeable at said office for
other Notes of other authorized denominations of equal aggregate principal
amount having identical terms and provisions. All such exchanges and transfers
of Notes will be free of charge, but the Issuer may require payment of a sum
sufficient to cover any tax or other governmental charge in connection
therewith. All Notes surrendered for exchange or transfer shall be accompanied
by a written instrument of transfer in form satisfactory to the Registrar and
executed by the registered holder in person or by the holder's attorney duly
authorized in writing. The date of registration of any Note delivered upon any
exchange or transfer of Notes shall be such that no gain or loss of interest
results from such exchange or transfer.
In case any Note shall at any time become mutilated, defaced or be
destroyed, lost or stolen and such Note or evidence of the loss, theft or
destruction thereof (together with the indemnity hereinafter referred to and
such other documents or proof as may be required in the premises) shall be
delivered to the Trustee, a new
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Note of like tenor will be issued by the Issuer in exchange for the Note so
mutilated, or in lieu of the Note so destroyed or lost or stolen, but, in the
case of any destroyed or lost or stolen Note, only upon receipt of evidence
satisfactory to the Registrar and the Issuer that such Note was destroyed or
lost or stolen and, if required, upon receipt also of indemnity satisfactory to
each of them. All expenses and reasonable charges associated with procuring
such indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Subordinated Indenture provides that, (a) if an Event of
Default (as defined in such Subordinated Indenture) due to the default in
payment of principal of, premium, if any, or interest on, any series of debt
securities issued under the Subordinated Indenture, including the series of
Subordinated Medium-Term Notes of which this Note forms a part, or due to the
default in the performance or breach of any other covenant or warranty of the
Issuer applicable to the debt securities of such series but not applicable to
all outstanding debt securities issued under the Subordinated Indenture shall
have occurred and be continuing, either the Trustee or the holders of not less
than 25% in principal amount of the debt securities of each affected series
(voting as a single class) may then declare the principal of all debt
securities of all such series and interest accrued thereon to be due and
payable immediately and (b) if an Event of Default due to a default in the
performance of any other of the covenants or agreements in the Subordinated
Indenture applicable to all outstanding debt securities issued thereunder,
including this Note, or due to certain events of bankruptcy, insolvency and
reorganization of the Issuer, shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of all debt
securities issued under the Subordinated Indenture then outstanding (treated as
one class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain conditions
such declarations may be annulled and past defaults may be waived (except a
continuing default in payment of principal (or premium, if any) or interest on
such debt securities) by the holders of a majority in principal amount of the
debt securities of all affected series then outstanding.
The Subordinated Indenture permits the Issuer and the Trustee,
with the consent of the holders of not less than a majority in aggregate
principal amount of the debt securities of each series issued under the
Subordinated Indenture then outstanding and affected, to execute supplemental
indentures adding any provisions to or changing in any manner the rights of the
holders of each series so affected; provided that the Issuer and the Trustee
may not, without the consent of the holder of each outstanding debt security
affected thereby, (a) extend the final maturity of any such debt security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the
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currency of payment thereof, or impair or affect the rights of any holder to
institute suit for the payment thereof without the consent of the holder of
each debt security so affected; or (b) reduce the aforesaid percentage in
principal amount of debt securities the consent of the holders of which is
required for any such supplemental indenture, without the consent of the
holders of each debt security so affected; provided, however, that neither this
Note nor the Subordinated Indenture may be amended to alter the subordination
provisions hereof or thereof without the written consent of each holder of
Senior Indebtedness then outstanding that would be adversely affected thereby.
Except as set forth below, if the principal of, or interest on,
this Note is payable in a Specified Currency other than U.S. dollars and such
Specified Currency is not available to the Issuer for making payments hereon
due to the imposition of exchange controls or other circumstances beyond the
control of the Issuer or is no longer used by the government of the country
issuing such currency or for the settlement of transactions by public
institutions within the international banking community, then the Issuer will
be entitled to satisfy its obligations to the holder of this Note by making
such payments in U.S. dollars on the basis of the Market Exchange Rate on the
date of such payment or, it the Market Exchange Rate is not available on such
date, as of the most recent practicable date. Any payment made under such
circumstances in U.S. dollars where the required payment is in a Specified
Currency other than U.S. dollars will not constitute an Event of Default.
If payment in respect of this Note is required to be made in ECUs
and ECUs are unavailable due to the imposition of exchange controls or other
circumstances beyond the Issuer's control or are no longer used in the European
Monetary System, then all payments in respect of this Note shall be made in
U.S. dollars until ECUs are again available or so used. The amount of each
payment in U.S. dollars shall be computed on the basis of the equivalent of the
ECU in U.S. dollars, determined as described below, as of the second Business
Day prior to the date on which such payment is due.
The equivalent of the ECU in U.S. dollars as of any date (the "Day
of Valuation") shall be determined by the Issuer or its agent on the following
basis. The component currencies of the ECU for this purpose (the "Components")
shall be the currency amounts that were components of the ECU as of the last
date on which the ECU was used in the European Monetary System. The equivalent
of the ECU in U.S. dollars shall be calculated by aggregating the U.S. dollar
equivalents of the Components. The U.S. dollar equivalent of each of the
Components shall be determined by the Issuer or such agent on the basis of the
most recently available Market Exchange Rates for such Components.
If the official unit of any Component is altered by way of
combination or subdivision, the number of units of that currency as
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a Components shall be divided or multiplied in the same proportion. If two or
more Components are consolidated into a single currency, the amounts of those
currencies as Components 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 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, each of which shall be
equal to the amount of the original component currency separated into the
number of currencies into which such original currency was divided.
All determinations referred to above made by the Issuer or its
agent shall be at its sole discretion and shall, in the absence of manifest
error, be conclusive to the extent permitted by law for all purposes and
binding on holders of Notes.
So long as this Note shall be outstanding, the Issuer will cause
to be maintained an office or agency for the payment of the principal of and
premium, if any, and interest on this Note as herein provided in the Borough of
Manhattan, The City of New York, and an office or agency in said Borough of
Manhattan for the registration, transfer and exchange as aforesaid of the
Notes. The Issuer may designate other agencies for the payment of said
principal, premium and interest at such place or places (subject to applicable
laws and regulations) as the Issuer may decide. So long as there shall be such
an agency, the Issuer shall keep the Trustee advised of the names and locations
of such agencies, if any are so designated.
With respect to moneys paid by the Issuer and held by the Trustee
or any Paying Agent for the payment of the principal of or interest or premium,
if any, on any Notes that remain unclaimed at the end of two years after such
principal, interest or premium shall have become due and payable (whether at
maturity or upon call for redemption or otherwise), (i) the Trustee or such
Paying Agent shall notify the holders of such Notes that such moneys shall be
repaid to the Issuer and any person claiming such moneys shall thereafter look
only to the Issuer for payment thereof and (ii) such moneys shall be so repaid
to the Issuer. Upon such repayment all liability of the Trustee or such Paying
Agent with respect to such moneys shall thereupon cease, without, however,
limiting in any way any obligation that the Issuer may have to pay the
principal of or interest or premium, if any, on this Note as the same shall
become due.
No provision of this Note or of the Subordinated Indenture shall
alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on this
Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered holder
of this Note.
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Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the Trustee
may treat the holder in whose name this Note is registered as the owner hereof
for all purposes, whether or not this Note be overdue, and neither the Issuer,
the Trustee nor any such agent shall be affected by notice to the contrary.
No recourse shall be had for the payment of the principal of or
the interest on this Note, for any claim based hereon, or otherwise in respect
hereof, or based on or in respect of the Subordinated Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past present or future, of the Issuer or of any successor
corporation, either directly or through the Issuer or any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
This Note shall for all purposes be governed by, and construed in
accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the Subordinated
Indenture and not otherwise defined herein shall have the meanings assigned to
them in the Subordinated Indenture.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out in
full according to applicable laws or regulations:
TEN COM-as tenants in common
TEN ENT-as tenants by the entireties
JT TEN-as joint tenants with right of survivorship
and not as tenants in common
UNIF GIFT MIN ACT-____________Custodian____________
(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 PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE,
OF ASSIGNEE]
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated: _______________________ _____________________________
[Signature of Assignor]
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular
without alteration or enlargement or any change whatsoever.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion hereof specified below) pursuant to
its terms at a price equal to the applicable Repayment Price thereof together
with interest to the Repayment Date, to the undersigned at
________________________________________________________________________________
________________________________________________________________________________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to
be repaid, specify the portion thereof which the holder elects to have repaid
$___________________; and specify the denomination or denominations (which
shall be in authorized denominations) of the Notes to be issued to the holder
for the portion of the within Note not being repaid (in the absence of any such
specification, one such Note will be issued for the portion not being repaid):
________________________________________________________________________________
Date:_____________________________ ____________________________________
(Signature)
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