EXHIBIT 4.7
[FORM OF MEDIUM-TERM FLOATING RATE SENIOR NOTE]
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A
NOMINEE OF A DEPOSITORY. THIS SECURITY IS NOT EXCHANGEABLE FOR NOTES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITORY OR ITS NOMINEE, EXCEPT IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE, AND NO TRANSFER OF THIS NOTE
(OTHER THAN A TRANSFER OF THIS NOTE AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF
THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER
NOMINEE OF THE DEPOSITORY) MAY BE REGISTERED EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), 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 DTC (and any payment is made to Cede & Co. or
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.
THIS NOTE IS NOT A SAVINGS ACCOUNT OR A DEPOSIT, IS NOT AN OBLIGATION OF OR
GUARANTEED BY ANY BANKING OR NONBANKING AFFILIATE OF BANK OF AMERICA CORPORATION
AND IS NOT INSURED BY THE FEDERAL DEPOSIT INSURANCE CORPORATION OR ANY OTHER
GOVERNMENTAL AGENCY.
REGISTERED $__________
NUMBER FLR _______ CUSIP 06050 _____________
BANK OF AMERICA CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES __
(Floating Rate)
ORIGINAL ISSUE DATE: BASE RATE:
STATED MATURITY DATE: (check one)
FINAL MATURITY DATE: ___Federal Funds Rate
INITIAL INTEREST RATE: ___LIBOR ____________
INDEX MATURITY FOR INITIAL ___Prime Rate
INTEREST RATE (IF DIFFERENT): ___Treasury Rate
INDEX MATURITY: ___Other:________________
INDEX MATURITY FOR FINAL ________________
INTEREST PAYMENT PERIOD ________________
(IF DIFFERENT):
SPREAD:
SPREAD MULTIPLIER:
MAXIMUM INTEREST RATE:
MINIMUM INTEREST RATE:
INTEREST PAYMENT DATES:
INTEREST RESET DATES: [ ] This Note is a Renewable
INTEREST RESET PERIOD: Note.
INITIAL REDEMPTION DATE: See Attached Rider.
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION: [ ] This Note is an
OPTIONAL PAYMENT DATE(S): Extendible Note.
CALCULATION AGENT: See Attached Rider.
ADDITIONAL TERMS:
BANK OF AMERICA CORPORATION, a Delaware corporation herein called the
"Corporation," which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to CEDE & CO., or registered
assigns, the principal sum of ___________________ DOLLARS/1/ on the Stated
Maturity Date/2/ specified above (except to the extent redeemed or repaid prior
to the Stated Maturity Date), and to pay interest thereon 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 determined in accordance
with the provisions on the reverse hereof, until the principal hereof is paid or
duly made available for payment. The Corporation will pay interest on the
Interest Payment Dates specified above, commencing with the first Interest
Payment Date succeeding the Original Issue Date specified above, unless the
Original Issue Date occurs between a Regular Record Date, as defined below, and
the next Interest Payment Date, in which case commencing on the Interest Payment
Date following the next Regular Record Date, and on the Stated Maturity Date or
Final Maturity Date shown above (or any Redemption Date as defined on the
reverse hereof or any Optional Repayment Date specified above with respect to
which any such option has been exercised, each such Stated Maturity Date, Final
Maturity Date, Redemption Date and Optional Repayment Date being herein referred
to as a "Maturity Date" with respect to the principal repayable on such date).
Interest on this Note will accrue from the Original Issue Date specified above
until the principal amount is paid and will be computed as hereinafter
described.
Interest payable on this Note on any Interest Payment Date or on the
Maturity Date will include interest accrued from and including the preceding
Interest Payment Date in respect of which interest has been paid or duly
provided for (or from and including the Original Issue Date specified above if
no interest has been paid or duly provided for) to but excluding such Interest
Payment Date or Maturity Date, as the case may be. If any Interest Payment Date
falls 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 if
the Base Rate is LIBOR, if such next Business Day falls in the next calendar
month, such Interest Payment Date will be the preceding day that is a Business
Day; and if the Maturity Date falls on a day that is not a Business Day,
principal or interest payable with respect to such Maturity Date will be paid on
the next Business Day with the same force and effect as if made on such Maturity
Date, and no additional interest shall accrue for the period from and after such
Maturity Date. The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date will be paid to the person in whose name this
Note (or one or more predecessor Notes evidencing all or a portion of the same
debt as this Note) is registered at the close of business on the date that is 15
calendar days prior to such Interest Payment Date, whether or not a Business Day
(the "Regular Record Date"); provided, however, that the first payment of
interest on any Note with an Original Issue Date, as specified above, between a
Regular Record Date and an Interest Payment Date or on an Interest Payment Date
will be made on the Interest Payment Date following the next Regular Record Date
to the person in whose name this Note is registered at the close of business on
such next Regular
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/1/ This form provides for Notes denominated in, and principal and interest
payable in, U.S. dollars. The form., as used, may be modified to provide,
alternatively, for Notes denominated in, and principal and interest and other
amount, if any, payable in a foreign currency or currency unit, with the
specific terms and provisions, including any limitations on the issuances of
Notes in such currency, additional provision regarding paying and other agents
and additional provisions regarding the calculation and payment of such
currency, set forth therein.
/2/ This form provides for Notes that will mature only on a specified date. If
the maturity of Notes of a series may be renewed at the option of the holder, or
extended at the option of the Corporation, the form, as used, will be modified
to provide for additional terms relating to such renewal or extension, as the
case may be, including the period or periods for which the maturity may be
renewed or extended, as the case may be, changes in the interest rate, if any
and requirements for notice.
2
Record Date; and provided, further, that interest payable on the Maturity Date
will be payable to the person to whom the principal hereof shall be payable. Any
such interest not punctually paid or duly provided for shall be payable as
provided in the Indenture./3/ As used herein, "Business Day" means any day that
is not a Saturday or a Sunday, and that is (1) not a legal holiday in New York,
New York or Charlotte, North Carolina, (2) not a day on which banking
institutions in those cities or any other place of payment with respect to the
Note are authorized or required by law or regulation to be closed, and (3) (i)
if the Base Rate is LIBOR, is a day on which dealings in deposits in United
States dollars are transacted in the London interbank market; (ii) if the Note
is denominated in euro, a day on which the TransEuropean Real-Time
Gross-Settlement Express Transfer, or "TARGET," System is in place; or (iii) if
the Note is denominated in a specified currency other than United States dollars
or euro, a day on which banking institutions generally are authorized or
obligated by law, regulation or obligated by executive order to close in the
Principal Financial Center of the country of the specified currency.
"Principal Financial Center" means:
(1) the capital city of the country issuing the specified currency,
except that with respect to United States dollars, Australian dollars, Canadian
dollars, South African rand, and Swiss francs, the "Principal Financial Center"
is New York, Sydney and Melbourne, Toronto, Johannesburg, and Zurich,
respectively, or
(2) the capital city of the country to which the LIBOR currency
relates, except that with respect to is United States dollars, Australian
dollars, Canadian dollars, South African rand, and Swiss francs, the "Principal
Financial Center" is New York, Sydney, Toronto, Johannesburg, and Zurich,
respectively.
The principal of (premium on, if any) and interest on this Note are
payable in immediately available funds 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 at the office or agency of the Corporation designated
as provided in the Indenture; provided, however, that interest may be paid, at
the option of the Corporation, by check mailed to the person entitled thereto at
his address last appearing on the registry books of the Corporation relating to
the Notes. Notwithstanding the preceding sentence, payments of principal of and
interest on the Maturity Date will be made by wire transfer of immediately
available funds to a designated account maintained in the United States upon (i)
receipt of written notice by the Issuing and Paying Agent (as described on the
reverse hereof) from the registered holder hereof not less than one Business Day
prior to the due date of such principal and (ii) presentation of this Note to
The Bank of New York, as Issuing and Paying Agent, 101 Barclay Street, New York,
New York 10286 (the "Corporate Trust Office").
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof, which shall have the same effect as though fully
set forth at this place.
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/3/ This form does not contemplate the offer of Notes to United States Aliens
(for United States federal income tax purposes). If Notes are offered to United
States Aliens, the forms of Notes, as used, may be modified to provide for the
payment of additional amounts to such United States Aliens or, if applicable,
the redemption of such Notes in lieu of payment of such additional amounts.
3
Unless the Certificate of Authentication hereon has been executed by
the Trustee or an authenticating agent on behalf of the Trustee by manual
signature, this Note shall not be entitled to any benefit under such Indenture
or be valid or obligatory for any purpose.
4
IN WITNESS WHEREOF, the Corporation has caused this Instrument to be duly
executed, by manual or facsimile signature, under its corporate seal or a
facsimile thereof.
BANK OF AMERICA CORPORATION
By:____________________________
[SEAL] Title: Senior Vice President
ATTEST:
___________________________________
Assistant Secretary
5
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to
in the within-mentioned Indenture.
Dated: __________________________
THE BANK OF NEW YORK,
as Trustee and Authenticating Agent
By:______________________________
Authorized Signatory
6
[Reverse of Note]
BANK OF AMERICA CORPORATION
MEDIUM-TERM SENIOR NOTE, SERIES __
(Floating Rate)
This Note is one of a duly authorized series of Securities of the
Corporation unlimited in aggregate principal amount (herein called the "Notes")
issued and to be issued under an Indenture dated as of January 1, 1995 (herein
called the "Indenture"), between the Corporation (successor to NationsBank
Corporation) and The Bank of New York (successor in interest to U.S. Bank Trust
National Association, successor trustee to BankAmerica National Trust Company,
herein called the "Trustee," which term includes any successor trustee under the
Indenture), as supplemented by a First Supplemental Indenture dated as of
September 18, 1998 and a Second Supplemental Indenture dated as of May 7, 2001
to which Indenture and all indentures supplemental thereto reference is hereby
made for a statement of the respective rights thereunder of the Corporation, the
Trustee and the holders of the Notes, and the terms upon which the Notes are,
and are to be, authenticated and delivered. The Trustee shall initially act as
Security Registrar, Authenticating and Paying Agent in connection with the
Notes. This Note is also one of the Notes designated as the Corporation's Senior
Medium-Term Notes, Series __ (herein called the "Notes"), limited in aggregate
principal amount to $________________.
This Note is not subject to any sinking fund.
[This Note may be subject to repayment at the option of the registered
holder only if the Optional Repayment Date(s) are indicated on the face hereof.
IF NO OPTIONAL REPAYMENT DATES ARE SET FORTH ON THE FACE HEREOF, THIS NOTE MAY
NOT BE SO REPAID AT THE OPTION OF THE HOLDER HEREOF PRIOR TO THE STATED MATURITY
DATE. On any Optional Repayment Date, this Note shall be repayable in whole or
in part in increments of $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. 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" duly completed, by
the Issuing and Paying Agent at the Corporate Trust Office, or such other
address of which the Corporation shall from time to time notify the holders of
the Notes[, not more than 60 nor less than 30 days prior to an Optional
Repayment Date]. Exercise of such repayment option by the holder hereof shall be
irrevocable.]
[This Note may be redeemed at the option of the Corporation on any date on
and after the Initial Redemption Date, if any, specified on the face hereof (the
"Redemption Date"). IF NO INITIAL REDEMPTION DATE IS SET FORTH ON THE FACE
HEREOF, THIS NOTE MAY NOT BE REDEEMED AT THE OPTION OF THE CORPORATION 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 at the option of the Corporation at the applicable
Redemption Price (as defined below) together with interest thereon payable to
the Redemption Date, on 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 registered
7
holder hereof upon the surrender hereof. If this Note is redeemable at the
option of the Corporation, the "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof of the principal amount of
this Note to be redeemed and shall decline at each anniversary of the Initial
Redemption Date 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.]
The Base Rate (as defined herein) with respect to this Note may be (i) the
federal funds rate, (ii) LIBOR, (iii) the prime rate, (iv) the treasury rate or
(v) such other rate as is described on the face hereof and on a rider to this
Note.
Except as described below, this Note will bear interest at the rate
determined by reference to the appropriate interest rate basis (the "Base Rate")
and Index Maturity, each as specified on the face hereof, (i) plus or minus the
Spread, if any, specified on the face hereof and/or (ii) multiplied by the
Spread Multiplier, if any, specified on the face hereof. The interest rate in
effect with respect hereto during an Interest Reset Period will be the rate
determined on the Calculation Date (as hereinafter defined) by reference to the
Interest Determination Date (as hereinafter defined). The interest rate in
effect on each day shall be (a) if such day is an Interest Reset Date, as
specified on the face hereof, the interest rate determined as of the Interest
Determination Date pertaining to such Interest Reset Date or (b) if such day is
not an Interest Reset Date, the interest rate determined as of the Interest
Determination Date pertaining to the immediately preceding Interest Reset Date,
provided that (i) the interest rate in effect from the Original Issue Date to
the initial Interest Reset Date shall be the Initial Interest Rate specified on
the face hereof, and (ii) the interest rate in effect for the 10 calendar days
immediately prior to the Maturity Date shall be the rate in effect on the 10th
calendar day preceding such Maturity 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 day that is a Business Day, except that if the Base Rate
specified on the face hereof is LIBOR and if such next Business Day is in the
next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. The term "Final Interest Payment Period"
means the period from the final Interest Reset Date to the Maturity Date.
The Interest Determination Date with respect to any Note that has as its
Base Rate the federal funds rate or the prime rate will be the Business Day
immediately preceding the related Interest Reset Date. The Interest
Determination Date with respect to any Note that has LIBOR as its Base Rate will
be the second London Banking Day (as defined below) preceding the related
Interest Reset Date. The Interest Determination Date with respect to any Note
that has as its Base Rate the treasury rate will be the day of the week in which
the applicable Interest Reset Date falls on which Treasury bills of the Index
Maturity specified on the face of this Note normally would be auctioned;
provided, however, that if an auction is held on the Friday of the week
preceding the Interest Reset Date, the related Interest Determination Date shall
be such preceding Friday; and provided, further, that if an auction is held on
any Interest Reset Date then the Interest Reset Date shall instead be the first
Business Day following such auction.
The "Calculation Date" pertaining to any Interest Determination Date shall
be the earlier of (i) the 10/th/ calendar day after such Interest Determination
Date or, if such day is not a
8
Business Day, the next succeeding Business Day, or (ii) the Business Day next
preceding the applicable Interest Payment Date or Maturity Date, as the case may
be.
Accrued interest on a Floating Rate Note is calculated by multiplying the
principal amount of the Note by an accrued interest factor. The accrued interest
factor is the sum of the interest factors calculated for each day in the period
for which accrued interest is being calculated. The interest factor for each day
is computed by dividing the interest rate in effect on that day by (1)in the
case of a Floating Rate Note based on the treasury rate, the actual number of
days in the year or (2) in the case of other Floating Rate Notes, 360. All
percentages resulting from any calculation are rounded to the nearest one
hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward. For example 9.876545% (or .09876545) will be
rounded to 9.87655% (or .0987655). Dollar amounts used in the calculation are
rounded to the nearest cent (with one-half cent being rounded upward).
Determination of Federal Funds Rate. The "federal funds rate" for any
Interest Determination Date is the rate on that date for federal funds, as
published in H.15(519) prior to 3:00 P.M., New York City time, on the
calculation date for that Interest Determination Date under the heading "Federal
Funds (Effective)" and/or displayed on Bridge Telerate, Inc. (or any successor
service) on page 120 (or any other page as may replace the specified page on
that service) ("Telerate Page 120").
The following procedures will be followed if the federal funds rate cannot
be determined as described above:
. If the above rate is not published in H.15(519) by 3:00 P.M., New York
City time, on the calculation date or does not appear on Telerate Page
120, the federal funds rate will be the rate on that Interest
Determination Date, as published in H.15 Daily Update, or such other
recognized electronic source for the purposes of displaying the
applicable rate, under the caption "Federal Funds (Effective)."
. If the alternate rate described above is not published in H.15 Daily
Update by 3:00 P.M., New York City time, on the calculation date, then
the calculation agent will determine the federal funds rate to be the
average of the rates for the last transaction in overnight federal
funds quoted by three leading brokers of federal funds transactions in
New York City, selected by the calculation agent, as of 9:00 A.M., New
York City time, on that Interest Determination Date.
. If fewer than three brokers selected by the calculation agent are
quoting as mentioned above, the federal funds rate will be the federal
funds rate in effect on that Interest Determination Date.
Determination of LIBOR. On each Interest Determination Date, the
calculation agent will determine LIBOR as follows:
. If "LIBOR Telerate" is specified on the face of this Note, LIBOR will
be the rate for deposits in the LIBOR currency having the Index
Maturity described on the face of this Note on the applicable Interest
Determination Date, as such rate appears on the
9
designated LIBOR page as of 11:00 A.M., London time, on that Interest
Determination Date.
. If "LIBOR Reuters" is described on the face of this Note, LIBOR will
be the average of the offered rates for deposits in the LIBOR currency
having the Index Maturity described on the face of this Note on the
applicable Interest Determination Date, as such rates appear on the
designated LIBOR page of 11:00 A.M., London time, on that Interest
Determination Date, if at least two such offered rates appear on the
designated LIBOR page.
If the face of the Note does not specify "LIBOR Telerate" or LIBOR Reuters," the
LIBOR Rate will be LIBOR Telerate. In addition, if the designated LIBOR page by
its terms provides only for a single rate, that single rate will be used
regardless of the foregoing provisions requiring more than one rate.
On any Interest Determination Date on which fewer than the required number
of applicable rates appear or no rate appears on the applicable designated LIBOR
page, the calculation agent will determine LIBOR as follows:
. LIBOR will be determined on the basis of the offered rates at which
deposits in the LIBOR currency having the Index Maturity described on
the face of this Note on the Interest Determination Date and in a
principal amount that is representative of a single transaction in
that market at that time are offered by four major banks in the London
interbank market at approximately 11:00 A.M., London time, on the
Interest Determination Date to prime banks in the London interbank
market. The calculation agent will select the four banks and request
the principal London office of each of those banks to provide a
quotation of its rate. If at least two quotations are provided, LIBOR
for that Interest Determination Date will be the average of those
quotations.
. If fewer than two quotations are provided as mentioned above, LIBOR
will be the average of the rates quoted by three major banks in the
Principal Financial Center selected by the calculation agent at
approximately 11:00 A.M., in the Principal Financial Center, on the
Interest Determination Date for loans to leading European banks in the
LIBOR currency having the Index Maturity designated on the face of
this Note on the Interest Determination Date and in a principal amount
that is representative for a single transaction in that market at that
time. The calculation agent will select the three banks referred to
above.
. If fewer than three banks selected by the calculation agent are
quoting as mentioned above, LIBOR will remain LIBOR then in effect on
the Interest Determination Date.
"Principal Financial Center" means:
(1) the capital city of the country issuing the specified currency, except
that with respect to United States dollars, Australian dollars, Canadian
dollars, South African rand, and Swiss francs, the "Principal Financial Center"
is New York, Sydney and Melbourne, Toronto, Johannesburg, and Zurich,
respectively, or
10
(2) the capital city of the country to which the LIBOR currency relates,
except that with respect to is United States dollars, Australian dollars,
Canadian dollars, South African rand, and Swiss francs, the "Principal Financial
Center" is New York, Sydney, Toronto, Johannesburg, and Zurich, respectively.
Determination of Prime Rate. The "prime rate" for any Interest
Determination Date is the prime rate or base lending rate on that date, as
published in H.15(519) by 9:00 A.M., New York City time, on the Calculation Date
for that Interest Determination Date under the heading "Bank Prime Loan."
The following procedures will be followed if the prime rate cannot be
determined as described above:
. If the rate is not published in H.15(519) by 3:00 P.M., New York City
time, on the Calculation Date, then the prime rate will be the rate as
published in H.15 Daily Update, or such other recognized electronic
source used for the purpose of displaying the applicable rate, under
the caption "Bank Prime Loan."
. If that rate information is not provided by 3:00 P.M., New York City
time, then the calculation agent will determine the prime rate based
on the rates as they appear on the Reuters screen US PRIME 1. If at
least one rate, but fewer than four rates appear on the Reuters screen
US PRIME 1 on the Interest Determination Date, then the prime rate
will be the average of the prime rates or base lending 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 the Interest
Determination Date by four major money center banks in New York City
selected by the calculation agent.
. If fewer than two rates appear on the Reuters screen as US PRIME 1,
then the prime rate will be the average of the Prime Rates furnished
in New York City by the appropriate number of substitute banks or
trust companies (all organized under the United States or any of its
states and having total equity capital of at least $500,000,000)
selected by the calculation agent on the Interest Determination Date.
. If the banks selected by the calculation agent are not quoting as
mentioned above, the prime rate will remain the prime rate then in
effect on the Interest Determination Date.
"Reuters screen US PRIME 1" means the display designated as page "US PRIME
1" on the Reuters Monitor Money Rates Service (or such other page as may replace
the US PRIME 1 page on that service for the purpose of displaying prime rates or
base lending rates of major United States banks).
Determination of Treasury Rate. The "treasury rate" for any Interest
Determination Date is the rate set at the auction of direct obligations of the
United States ("Treasury bills") having the Index Maturity described on the face
of this Note, as published in H.15(519) by 3:00 P.M., New York City time, on the
calculation date for that Interest Determination Date under the heading "U.S.
Government Securities--Treasury bills--auction average (investment)" and/or
11
displayed on Bridge Telerate, Inc. (or any successor service) on page 56 (or any
other page as may replace that page on that service) ("Telerate Page 56") or
page 57 (or any other page as may replace that page on that service) ("Telerate
Page 57").
The following procedures will be followed if the treasury rate cannot be
determined as described above:
. If the rate is not published in H.15(519) by 3:00 P.M., New York City
time, or displayed on Telerate Page 56 or Telerate Page 57 on the
calculation date, the treasury rate will be the auction average rate
(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 on the
calculation date.
. If the results of the most recent auction of Treasury bills having the
Index Maturity described on the face of this Note are not published or
announced as described above by 3:00 P.M., New York City time, on the
calculation date, or if no auction is held on the Interest
Determination Date, then the calculation agent will determine the
treasury rate to be a yield to maturity (expressed as a bond
equivalent, on the basis of a year of 365 or 366 days, as applicable,
and applied on a daily basis) of the average of the secondary market
bid rates, as of approximately 3:30 P.M., New York City time, on the
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 described on the face of this Note.
. If fewer than three dealers selected by the calculation agent are
quoting as mentioned above, the treasury rate will remain the treasury
rate then in effect on that Interest Determination Date.
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, and 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.
The Calculation Agent shall calculate the interest rate hereon in
accordance with the foregoing on or before each Calculation Date. At the request
of the registered holder hereof, the Calculation Agent will provide to such
holder hereof the interest rate hereon then in effect and, if determined, the
interest rate which will become effective as of the next Interest Reset Date.
The provisions of Article Fourteen of the Indenture do not apply to
Securities of this Series.
If an Event of Default (defined in the Indenture as (i) the Corporation's
failure to pay principal of (or premium, if any, on) the Notes when due, or to
pay interest on the Notes within 30 days after the same becomes due, (ii) the
Corporation's breach of its other covenants
12
contained in this Note or in the Indenture, which breach is not cured within 90
days after written notice by the Trustee or the holders of at least 25% in
outstanding principal amount of all Securities issued under the Indenture and
affected thereby and (iii) certain events involving the bankruptcy, insolvency
or liquidation of the Corporation) shall occur with respect to the Notes, 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
Corporation and the rights of the holders of the Notes under the Indenture at
any time by the Corporation with the consent of the holders of not less than 66
2/3% in aggregate principal amount of the Notes then outstanding and all other
Securities then outstanding under the Indenture and affected by such amendment
and modification. The Indenture also contains provisions permitting the holders
of a majority in aggregate principal amount of the Notes then outstanding and
all other Securities then outstanding under the Indenture and affected thereby,
on behalf of the holders of all such Securities, to waive compliance by the
Corporation 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 Corporation, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal of (premium, if
any) or the interest on this Note, or for any claim based hereon, or otherwise
in respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, stockholder, officer or
director, as such, past, present or future, of the Corporation or any
predecessor or 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 issue hereof, expressly waived and released.
As provided in the Indenture and subject to certain limitations therein set
forth, the transfer of this Note may be registered on the registry books of the
Corporation relating to the Notes, upon surrender of this Note for registration
of transfer at the office or agency of the Corporation designated by it pursuant
to the Indenture, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Corporation and the Trustee or the Security
Registrar duly executed by, the registered holder hereof or his 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 as registered
Notes without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture, and subject to certain limitations
13
therein set forth, Notes are exchangeable for a like aggregate principal amount
of Notes of different authorized denominations, as requested by the holder
surrendering the same. No service charge will be made for any such registration
of transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
Prior to due presentment for registration of transfer of this Note, the
Corporation, the Trustee, the Issuing and Paying Agent and any agent of the
Corporation, the Trustee or any Issuing and Paying Agent may treat the entity in
whose name this Note is registered as the absolute owner hereof for the purpose
of receiving payment as herein provided and for all other purposes, whether or
not this Note be overdue, and neither the Corporation, the Trustee, the Issuing
and Paying Agent nor any such agent shall be affected by notice to the contrary.
All terms used in this Note which are not defined herein but are defined in
the Indenture shall have the meanings assigned to them in the Indenture.
The Notes are being issued by means of a book-entry system with no physical
distribution of certificates to be made except as provided in the Indenture. The
book-entry system maintained by The Depository Trust Company ("DTC") will
evidence ownership of the Notes, with transfers of ownership effected on the
records of DTC and its participants pursuant to rules and procedures established
by DTC and its participants. The Corporation will recognize Cede & Co., as
nominee of DTC, while the registered holder of the Notes, as the owner of the
Notes for all purposes, including payment of principal (premium, if any) and
interest, notices and voting. Transfer of principal (premium, if any) and
interest to participants of DTC will be the responsibility of DTC, and transfer
of principal (premium, if any) and interest to beneficial owners of the Notes by
participants of DTC will be the responsibility of such participants and other
nominees of such beneficial owners. So long as the book-entry system is in
effect, the selection of any Notes to be redeemed will be determined by DTC
pursuant to rules and procedures established by DTC and its participants. The
Corporation will not be responsible or liable for such transfers or payments or
for maintaining, supervising or reviewing the records maintained by DTC, its
participants or persons acting through such participants.
14
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of the within Note, 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.
____________________________
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
[PLEASE PRINT OR TYPEWRITE 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 __________________________________ Attorney to transfer said Note on
the books of the Corporation, with full power of substitution in the premises.
Dated:_________________________ _________________________
NOTICE: The signature to this assignment must correspond with the name as it
appears upon the face of the within Note in every particular, without alteration
or enlargement or any change whatever and must be guaranteed.
15
[OPTION TO ELECT REPAYMENT]
The undersigned hereby irrevocably request(s) and instruct(s) the
Corporation 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 Trustee (or any duly appointed paying
agent) must receive at __________________, or at such other place or places of
which the Corporation shall from time to time notify the registered 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 hereof, 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 in increments of $1,000) which the
registered holder elects to have repaid and specify the denomination or
denominations (which shall be $__________ or an integral multiple of $l,000 in
excess of $__________) of the Notes to be issued to the registered 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.
16
[RENEWABLE NOTE RIDER]
The Corporation and the purchaser of this Note have agreed that this
Note is a Renewable Note which initially matures on the Stated Maturity Date
shown on the face hereof. At each Renewal Date, as specified below, the maturity
of this Note will be automatically extended to the corresponding New Maturity
Date, as specified below, unless the registered holder of this Note elects to
terminate the automatic extension of the maturity of this Note or any portion
hereof and delivers a completed Extension Termination Notice to the Trustee (or
any duly appointed paying agent) not less than 15 nor more than 30 days prior to
the applicable Renewal Date. The Extension Termination Notice may specify all or
a portion of the outstanding principal amount of the Note so long as the
principal amount of the Note remaining outstanding after repayment is an
integral multiple of $1,000. Upon timely delivery of such Extension Termination
Notice, the term of the principal amount of this Note subject to such notice
will be deemed automatically to mature on the Stated Maturity Date or the then
applicable New Maturity Date, as the case may be. The remaining principal
balance of such Note, if any, will be deemed to automatically be extended to the
corresponding New Maturity Date but in no circumstances may such maturity be
extended beyond the Final Maturity Date set forth below. An election to
terminate the automatic extension of the maturity hereof shall be irrevocable
and binding on each holder hereof. Notwithstanding any such extension, the
interest rate applicable to this Note will continue to be calculated as set
forth in this Note.
STATED MATURITY DATE:_________________________________
FINAL MATURITY DATE:__________________________________
Renewal Date(s) New Maturity Date(s)
--------------- --------------------
17
[EXTENDIBLE NOTE RIDER]
The Corporation and the purchaser of this Note have agreed that this
Note is an Extendible Note, whereby the Corporation has the option to extend the
maturity of this Note for one or more whole year periods, as set forth below
(each, an "Extension Period"), up to but not beyond the Final Maturity Date set
forth below, under the terms of this Note as supplemented by this Extendible
Note Rider.
Stated Maturity Date: ________________________________
Final Maturity Date: _________________________________
Extension Notice Extended
Due Date Maturity Date
-------- -------------
The Corporation may exercise its option with respect hereto by delivery
to the Trustee (or any duly appointed paying agent) of notice of such exercise
at least 45 but not more than 60 days prior to the Stated Maturity Date
originally in effect with respect hereto or, if the Stated Maturity Date has
already been extended, prior to the maturity date then in effect (each, an
"Extended Maturity Date"). After such receipt and not later than 40 days prior
to the Stated Maturity Date or an Extended Maturity Date, as the case may be
(each, a "Maturity Date"), the Trustee (or any duly appointed Paying Agent) will
mail first class mail, postage prepaid, to the registered holder hereof a notice
(the "Extension Notice") relating to such extension period (the "Extension
Period") setting forth (i) the election of the Corporation to extend the
maturity hereof, (ii) the new Extended Maturity Date, (iii) the interest rate
applicable to the Extension Period, and (iv) the provisions, if any, for
redemption during the Extension Period, including the date or dates on which,
the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by the
Trustee (or any duly appointed Paying Agent) of an Extension Notice to the
registered holder hereof, the maturity hereof shall be extended automatically as
set forth in such Extension Notice, and, except as modified by the Extension
Notice and as described in the next paragraph, this Note will have the same
terms as prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the
Maturity Date hereof (or, if such date is not a Business Day, on the immediately
succeeding Business Day), the Corporation, at its option, may revoke the
interest rate provided for in the Extension Notice and establish a higher
interest rate for the Extension Period by mailing or causing the Trustee (or any
duly appointed paying agent) to mail notice of such higher interest rate, first
class mail, postage prepaid, to the registered holder hereof. Such notice shall
be irrevocable. Thereafter, this Note will bear such higher interest rate for
the Extension Period.
18
If the Corporation elects to extend the maturity hereof, the registered
holder hereof will have the option to elect repayment hereof by the Corporation
on the Maturity Date then in effect at a price equal to the principal amount
hereof plus any accrued and unpaid interest to such date. In order for this Note
to be so repaid on the Maturity Date, the Corporation must receive, at least 15
days but not more than 30 days prior to the Maturity Date then in effect with
respect hereto, (i) this Note with the form "Option to Elect Repayment" on the
reverse hereof 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 trust company
in the United States setting forth the name of the registered holder hereof, the
principal amount hereof to be repaid, the certificate number, or a description
of the tenor and terms hereof, a statement that the option to elect repayment is
being exercised thereby, and a guarantee that this Note, together with the duly
completed form entitled "Option to Elect Repayment" attached hereto, will be
received by the Trustee (or any duly appointed paying agent) not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission, or letter, provided, however, that such telegram, telex, facsimile
transmission, or letter shall only be effective if this Note and duly completed
form are received by the Trustee (or any duly appointed paying agent) by such
fifth Business Day. Such option may be exercised by the registered holder hereof
for less than the aggregate principal amount hereof then outstanding, provided
that the principal amount hereof remaining outstanding after repayment is an
integral multiple of $1,000.
19