[FORM OF TEMPORARY GLOBAL SENIOR BEARER NOTE]
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE SUBJECT
TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(J) AND 1287(A) OF THE INTERNAL
REVENUE CODE.
NEITHER THIS TEMPORARY GLOBAL NOTE NOR ANY PORTION HEREOF MAY IN
CONNECTION WITH ITS ORIGINAL ISSUANCE OR DURING THE __ DAYS FOLLOWING
THE DATE OF ORIGINAL ISSUANCE HEREOF BE OFFERED FOR SALE OR RESALE, SOLD
OR RESOLD, OR DELIVERED, DIRECTLY OR INDIRECTLY, IN THE UNITED STATES OR
ITS POSSESSIONS, OR TO A UNITED STATES PERSON, UNLESS SUCH UNITED STATES
PERSON IS A FINANCIAL INSTITUTION AS DEFINED IN SECTION
1.165-12(C)(1)(V) OF THE UNITED STATES TREASURY REGULATIONS PURCHASING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A CUSTOMER, WHICH FINANCIAL
INSTITUTION, AS A CONDITION OF THE PURCHASE, AGREES TO PROVIDE ON
ISSUANCE THE CERTIFICATE REQUIRED UNDER SECTION 1.163-5(C)(2)(i)(D)(3)
OF THE UNITED STATES TREASURY REGULATIONS. "UNITED STATES PERSON" MEANS
ANY CITIZEN OR RESIDENT OF THE UNITED STATES, ANY CORPORATION,
PARTNERSHIP OR OTHER ENTITY CREATED OR ORGANIZED IN OR UNDER THE LAWS OF
THE UNITED STATES AND ANY ESTATE OR TRUST THE INCOME OF WHICH IS SUBJECT
TO UNITED STATES FEDERAL INCOME TAXATION REGARDLESS OF ITS SOURCE.
[INSERT ANY OTHER LEGEND REQUIRED BY THE INTERNAL REVENUE CODE AND
THE REGULATIONS THEREUNDER]
THIS NOTE IS A TEMPORARY GLOBAL NOTE, WITHOUT COUPONS, EXCHANGEABLE
FOR ONE OR MORE PERMANENT GLOBAL NOTES OF THIS SERIES, WITHOUT COUPONS,
FOR DEFINITIVE REGISTERED NOTES OF THIS SERIES, WITHOUT COUPONS, FOR
DEFINITIVE BEARER NOTES OF THIS SERIES, WITH INTEREST COUPONS ATTACHED,
OR FOR A COMBINATION THEREOF, AT THE PRINCIPAL OFFICE OF THE [TRUSTEE]
[SECURITY REGISTRAR] (AS DEFINED HEREIN) IN [LONDON], ON OR AFTER __
DAYS FROM THE DATE OF ORIGINAL ISSUANCE HEREOF UPON PRESENTATION OF THE
CERTIFICATION SPECIFIED IN THE INDENTURE (AS DEFINED HEREIN). THE RIGHTS
ATTACHING TO THIS TEMPORARY GLOBAL NOTE AND THE CONDITIONS AND
PROCEDURES GOVERNING ITS EXCHANGE FOR A PERMANENT GLOBAL NOTE OF THIS
SERIES OR FOR DEFINITIVE REGISTERED NOTES OF THIS SERIES OR DEFINITIVE
BEARER NOTES OF THIS SERIES ARE AS SPECIFIED HEREIN AND IN THE
INDENTURE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR AN INTEREST
IN A PERMANENT GLOBAL NOTE, THIS TEMPORARY GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE
DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH
NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY. NEITHER THE HOLDER NOR THE BENEFICIAL OWNERS OF THIS
TEMPORARY GLOBAL NOTE SHALL BE ENTITLED TO RECEIVE PAYMENT OF INTEREST
HEREON EXCEPT PURSUANT TO THE PROVISIONS HEREOF.
BEARER BEARER
NUMBER ____________ $ _________
THIS NOTE IS NOT A SAVINGS ACCOUNT
OR A DEPOSIT, IS NOT AN OBLIGATION
OF OR GUARANTEED BY ANY BANKING OR
NONBANKING AFFILIATE OF THE COMPANY AND
IS NOT INSURED BY THE FEDERAL DEPOSIT
INSURANCE CORPORATION OR ANY OTHER
GOVERNMENT AGENCY. SEE REVERSE FOR CERTAIN DEFINITIONS
AND ADDITIONAL PROVISIONS
NATIONSBANK CORPORATION
TEMPORARY GLOBAL BEARER NOTE
NATIONSBANK CORPORATION, a corporation duly organized and existing
under the laws of the State of North Carolina (herein called the
"Company," which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received, hereby
promises to pay to the bearer, upon presentation and surrender of this
Temporary Global
1
Note, the principal sum of ______________________ DOLLARS on ,
and to pay interest on said principal sum, semi-annually in arrears on
and of each year, at the rate of % per annum from the date
hereof, commencing with the first interest payment date next succeeding
the date hereof, and on the maturity date; provided, however, that if
the date hereof occurs between a date that is 15 days prior to the next
succeeding interest payment date and such interest payment date,
interest payments will commence on the second interest payment date
succeeding the date hereof to the bearer of this Note on such second
interest payment date. 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 date hereof, until payment of the principal amount hereof has been
made or duly provided for.
This Temporary Global Note shall be exchanged in whole or from time
to time in part for (i) a permanent global Note of this series, without
interest coupons, (ii) definitive Notes of this series in bearer form
("Bearer Notes"), with interest coupons attached, (iii) definitive Notes
of this series in registered form ("Registered Notes"), without interest
coupons, or (iv) a combination of the foregoing, provided that the
interest in this Temporary Global Note being exchanged has not been
acquired from or otherwise beneficially owned by a United States person,
and provided further that the permanent global Note or the definitive
Notes so issued in exchange for this Temporary Global Note shall be in
authorized denominations and be of like tenor and of an equal aggregate
principal amount as the portion of this Temporary Global Note to be
exchanged, and provided further that, unless the Company agrees
otherwise, definitive Bearer Notes of this series or definitive
Registered Notes of this series will be issued in
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1 This form provides for Notes denominated in, and principal and interest
payable in, United States dollars. This form, as used, may be modified to
provide, alternatively, for Notes denominated in, and principal and interest
and other amounts, if any, payable in a foreign currency or currency unit, with
the specific terms and provisions, including any limitations on the issuance
of Notes in such currency, additional provisions 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 Company, 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.
3 This form provides for semi-annual interest payments. The form, as used,
may be modified to provide, alternatively, for annual, quarterly or other
periodic interest payments.
4 This form provides for interest at a fixed rate. The form, as used, may be
modified to provide, alternately, for interest at a variable rate or rates,
with the method of determining such rate set forth therein.
2
exchange for this Temporary Global Note, or any portion hereof, only if
prior to the issuance of this Temporary Global Note, such definitive
Bearer Notes or definitive Registered Notes were requested by written
notice to the [London] office of the Security Registrar and the [London]
office of a common depositary (the "Common Depositary"), by or on behalf
of a person who is a beneficial owner of an interest herein, given
through Morgan Guaranty Trust Company of New York, Brussels office, as
operator of the Euroclear System ("Euroclear"), or Centrale de Livraison
de Valeurs Mobilieres, S.A. ("CEDEL S.A.").
In the event that this Temporary Global Note or any portion hereof
is exchanged for one or more permanent global Notes of this series or an
interest therein, such permanent global Note will be deposited in
[London] with the main office in [London] of the Common Depositary for
Euroclear and CEDEL S.A. Any exchange of this Temporary Global Note or
portion hereof, whether for a permanent global Note of this series or an
interest therein, one or more definitive Registered Notes of this series
or one or more definitive Bearer Notes of this series, will be made at
the [London] office of the Security Registrar, upon request and by or on
behalf of the person who is the beneficial owner of an interest herein
given through Euroclear or CEDEL S.A., only (i) on or after a date which
is at least __ days after the date of original issuance hereof (the
"Exchange Date") and (ii) in accordance with the procedures and
certification requirements set forth in the Indenture. Upon exchange of
any portion of this Temporary Global Note for a permanent global Note of
this series or one or more definitive Registered Notes of this series or
one or more definitive Bearer Notes of this series, or both, the
Security Registrar shall endorse Schedule A of this Temporary Global
Note to reflect the reduction of the principal amount represented hereby
by an amount equal to the aggregate principal amount of the definitive
Registered Notes of this series or Bearer Notes of this series so issued
in exchange or by the aggregate principal amount to be entered on the
permanent global Note of this series, or both, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so
exchanged and noted. Except as otherwise provided herein or in the
Indenture, until exchanged in full for a permanent global Note of this
series or interests therein or one or more definitive Registered Notes
of this series or one or more definitive Bearer Notes of this series, or
both, this Temporary Global Note shall in all respects be subject to and
entitled to the same benefits and conditions under the Indenture as duly
authenticated and delivered permanent global Note of this series or
definitive Registered Note of this series or definitive Bearer Note of
this series.
Except as provided in the next paragraph, neither the holder of this
Temporary Global Note nor any beneficial owner of any portion of this
Temporary Global Note shall be entitled to receive payment of accrued
interest hereon until this Temporary Global Note or the relevant portion
hereof has been exchanged for a permanent global Note of this series or
an interest therein or for one or more definitive Registered Notes of
this series or one or more definitive Bearer Notes of this series or a
combination thereof, as provided herein and in the Indenture.
The principal and any interest in respect of any portion of this
Temporary Global Note payable in respect of an interest payment date or
at the stated maturity thereof, in each case occurring prior to the
exchange of such portion for a permanent global Note of this series or
interests therein or a definitive Registered Note or Notes of this
series or a definitive Bearer
3
Note or Notes of this series, as the case
may be, will be paid to each of Euroclear and CEDEL S.A. with respect to
the portion of this Temporary Global Note held for its account upon
compliance with the procedures and certification requirements set forth
in the Indenture. Each of Euroclear and CEDEL S.A. will undertake in
such circumstances to credit any such principal and interest received by
it in respect of this Temporary Global Note to the respective accounts
of the persons who are the beneficial owners of such interests on such
interest payment date or at stated maturity, but any such interest will
only be so credited upon receipt in each case of written certification
and the satisfaction of any other requirements to the effect described
in the Indenture. If such interest payment date occurs on or after the
Exchange Date, Euroclear or CEDEL S.A., as the case may be, following
the receipt of such written certification shall exchange, in accordance
with the procedures set forth in the Indenture, the portion of the
Temporary Global Note that relates to such certificate for definitive
Notes (which, in the absence of instructions to the contrary, shall be
an interest in a permanent global Note). Any interest so received by
Euroclear and CEDEL S.A. and not paid as herein provided shall be
returned to the Trustee or the applicable paying agent immediately prior
to the expiration of two years after such interest payment date in order
to be repaid to the Company in accordance with the Indenture.
The principal of and interest on this Temporary Global Note are
payable 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, subject to any laws or regulations applicable thereto and to the
right of the Company (limited as provided in the Indenture) to rescind
the designation of any paying agent, at the [main] offices of
(the "Paying Agent") in , in ,
in , in and in , or at such other
office or agencies outside the United States of America (including the
States and the District of Columbia) and its possessions (including
Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and Northern Mariana Islands) (the "United States") as the Company may
designate, by check drawn on a bank in _________________ or wire
transfer to an account maintained by the payee with a bank located
outside the United States (so long as the Paying Agent has received
proper transfer instructions in writing); provided, however, that
payment of principal of and interest on this Temporary Global Note
(including any additional amounts which may be payable as provided
below) shall be made at the office of the Company's paying agent in [the
Borough of Manhattan, The City of New York] if (but only if) payment in
United States dollars of the full amount of such principal, interest or
additional amounts, as the case may be, at all offices or agencies
outside the United States maintained for the purpose by the Company in
accordance with the Indenture is illegal or effectively precluded by
exchange controls or other similar restrictions. Interest on this
Temporary Global Note due on or before maturity shall be payable only
upon presentation at such an office or agency of this Temporary Global
Note.
The Company will pay to any holder of any Note of this series or
any related coupon who is a United States Alien (as defined below) such
additional amounts as may be necessary in order that every net payment
of the principal of and interest on such Note, after deduction or
withholding for or on account of any present or future tax, assessment
or other governmental charge imposed by the United States (as defined
herein) or any political subdivision or taxing authority thereof or
therein upon or as a result of such payment, will not be less than the
amount
5
provided for in such Note or in such coupon to be then due and
payable; provided, however, that the Company shall not be required to
make any payment of additional amounts for or on account of:
(a) any tax, assessment or other governmental charge which
would not have been imposed but for (i) the existence of any present
or former connection between such holder (or between a fiduciary,
settlor, beneficiary, member or shareholder of, or possessor of a
power over, such holder, if such holder is an estate, trust,
partnership or corporation) and the United States, including,
without limitation, such holder (or such fiduciary, settlor,
beneficiary, member, shareholder or possessor) being or having been
a citizen or resident thereof or being or having been present or
engaged in trade or business therein or having or having had a
permanent establishment therein or (ii) the presentation by the
holder of such Note or coupon, if any, for payment on a date more
than __ days after the date on which such payment became due and
payable or the date on which payment thereof is duly provided for,
whichever occurs later;
(b) any estate, inheritance, gift, sales, transfer, personal
property tax or similar tax, assessment or other governmental
charge;
(c) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as a personal
holding company or foreign personal holding company with respect to
the United States or as a corporation which accumulates earnings to
avoid United States federal income tax;
(d) any tax, assessment or other governmental charge which is
payable otherwise than by withholding from payments of principal of
or interest on such Note;
(e) any tax, assessment or other governmental charge required
to be withheld by any paying agent from any payment of principal of
or interest on the Notes, if such payment can be made without such
withholding by any of the other paying agents in Western Europe;
(f) any tax, assessment or other governmental charge which
would not have been imposed but for the failure to comply with
certification, information, documentation or other reporting
requirements concerning the nationality, residence, identity or
connections with the United States of the holder or beneficial owner
of such Note or any related coupon, if such compliance is required
by statute or by regulation of the United States Treasury Department
as a pre-condition to relief or exemption from such tax, assessment
or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
on interest received by (i) a 10% shareholder (as defined in Section
871(h)(3)(B) of the United States Internal Revenue Code of 1986, as
amended (herein called the "Code"), and the regulations that may be
promulgated thereunder) of the Company or (ii) a controlled foreign
corporation within the meaning of the Code; or
5
(h) any combination of items (a), (b), (c), (d), (e), (f) and
(g);
nor will additional amounts be paid with respect to any payment of
principal of or interest on any such Note to any holder which is a
United States Alien who is a fiduciary or partnership or other than the
sole beneficial owner of any such payment to the extent that a
beneficiary or settlor with respect to such fiduciary, a member of such
a partnership or the beneficial owner would not have been entitled to
the additional amounts had such beneficiary, settlor, member or
beneficial owner been the holder of such Note or any related coupon.
Except as specifically provided in the Notes of this series (including
this Temporary Global Note), the Company shall not be required to make
any payment with respect to any tax, assessment or governmental charge
imposed by any government or any political subdivision thereof or taxing
authority therein. Whenever in this Temporary Global Note there is
mentioned, in any context, the payment of the principal of or interest
on, or in respect of, a Note or any related coupon, such mention shall
be deemed to include mention of the payment of additional amounts
provided for herein or therein to the extent that, in such context,
additional amounts are, were or would be payable in respect thereof
pursuant to the provisions hereof or thereof and express mention of the
payment of additional amounts (if applicable) in any provisions hereof
or thereof shall not be construed as excluding additional amounts in
those provisions where such express mention is not made. The term
"United States Alien" means any person who, for United States federal
income tax purposes, is a foreign corporation, a non-resident alien
individual, a non-resident alien fiduciary of a foreign estate or trust
or a foreign partnership to the extent that one or more of the members
of which is, for United States federal income tax purposes, a foreign
corporation, a non- resident alien individual or a non-resident alien
fiduciary of a foreign estate or trust.
Notwithstanding the foregoing, if and so long as the certification,
identification or other reporting requirement with respect to any and
all Notes of this series (including this Temporary Global Note) referred
to in the [________] paragraph on the reverse hereof would be fully
satisfied by payment of a withholding tax, backup withholding tax or
similar charge, the Company may elect to have the provisions of this
paragraph apply in lieu of the provisions of such paragraph, which
election may be stated in the Determination Notice (as defined in such
[________] paragraph). In such event, the Company will pay as
additional amounts with respect to any Note of this series (including
this Temporary Global Note) that the Company determines is subject to
such requirement such amounts as may be necessary so that every net
payment made following the effective date of such requirement outside
the United States by the Company or any of its paying agents of
principal or interest due in respect of any Bearer Note of this series
or any related coupon of which the beneficial owner is a United States
Alien (but without any requirement that the nationality, residence or
identity of such beneficial owner be disclosed to the Company, any
paying agent or any governmental authority), after deduction or
withholding for or on account of such withholding tax, backup
withholding tax or similar charge (other than a withholding tax, backup
withholding tax or similar charge which (a) would not be applicable to a
payment made to a custodian, nominee or other agent of the beneficial
owner or which can be satisfied by such a custodian, nominee or other
agent certifying to the effect that such beneficial owner is a United
States Alien (provided, however, in each case that payment by such
custodian, nominee or agent to such beneficial owner is not otherwise
subject to any requirement referred to in this paragraph), (b) is
applicable only to payment by a custodian,
6
nominee or other agent of the
beneficial owner to such beneficial owner, (c) would not be applicable
to a payment made by any other paying agent of the Company in Western
Europe, or (d) is imposed as a result of the presentation of such Bearer
Note or coupon for payment on a date more than __ days after the date on
which such payment becomes due and payable or the date on which payment
thereof is duly provided for, whichever occurs later), will not be less
than the amount provided for in such Bearer Note or coupon to be then
due and payable.
Reference is hereby made to the further provisions of this Temporary
Global Note set forth on the reverse hereof, which shall have the same
effect as though fully set forth at this place.
Unless the certificate of authentication hereon has been duly
executed by or on behalf of the Trustee manual signature, this Temporary
Global Note shall not be entitled to any benefit under such Indenture,
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Instrument to be
duly executed by manual or facsimile signature under its corporate seal
or a facsimile thereof.
NATIONSBANK CORPORATION,
ATTEST:
By: ______________________ By: _________________________
Secretary Chairman of the Board
[CORPORATE SEAL]
Dated:
7
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within- mentioned Indenture.
BANKAMERICA NATIONAL TRUST
COMPANY, as Trustee
[By: ______________________,
as Authenticating Agent]
By: ______________________
Authorized Signatory [Reverse Side of Note]
8
This Temporary Global Note is one of a duly authorized issue of
Securities of the Company designated as its ____% Senior Notes, due
______ (herein called the "Notes"), limited in aggregate principal
amount to $_________________, issued and to be issued under an Indenture
dated as of January 1, 1995 (herein called the "Indenture") between the
Company and BankAmerica National Trust Company (herein called the
"Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights
thereunder of the Company, the Trustee and the holders of the Notes and
any coupons appertaining thereto, and the terms upon which the Notes
are, and are to be, authenticated and delivered.
[_________________________________________________ initially has been
appointed Security Registrar, Authenticating Agent and Paying Agent in
connection with the Notes.]
The Notes of this series of which this Temporary Global Note is a
part are issuable as Bearer Notes, with interest coupons attached, in
the denominations of $_______, and as Registered Notes, without coupons,
in denominations of $__________ and any integral multiple in excess
thereof. As provided in the Indenture and subject to certain
limitations therein set forth, Bearer Notes and Registered Notes of the
series of which this Temporary Global Note is a part are exchangeable
for a like aggregate principal amount of Registered Notes of this series
and of like tenor of any authorized denominations, as requested by the
holder surrendering the same, upon surrender of the Note or Notes to be
exchanged, with all unmatured coupons and all matured coupons in default
thereto appertaining, at any office or agency described below where
Registered Notes of this series may be presented for registration of
transfer; provided, however, that Bearer Notes surrendered in exchange
for Registered Notes between a regular record date and the relevant
interest payment date shall be surrendered without the coupon relating
to such interest payment date. Registered Notes, including Registered
Notes received in exchange for Bearer Notes, may not be exchanged for
Bearer Notes.
Title to Bearer Notes of the series of which this Temporary Global
Note is a part and any related coupons shall pass by delivery. As
provided in the Indenture and subject to certain limitations therein set
forth, the transfer of Registered Notes of the series of which this
Temporary Global Note is a part may be registered in the Security
Register of the Company, upon surrender of a Registered Note for
registration of transfer at the principal corporate trust office of the
Trustee or, subject to any laws or regulations applicable thereto and to
the right of the Company (limited as provided in the Indenture) to
rescind the designation of any such transfer agent, at the [main]
offices of _________________________ in _________________________ and
_________________________ in _________________________ or at such other
offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to
the Company and the Security Registrar duly executed by, the registered
holder thereof or his attorney duly authorized in writing, and thereupon
one or more new Registered Notes of this series and of like tenor, of
authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
9
No service charge shall be made for any such registration of
transfer or exchange of Notes as provided above, but the Company may
require payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
The Company, the Trustee and any agent of the Company or the Trustee
may treat the bearer of a Bearer Note of any series and any related
coupon and, prior to due presentment of a Registered Note for
registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the person in whose name such Note is
registered, as the absolute owner thereof for all purposes, whether or
not such Note or such coupon be overdue, and neither the Company, the
Trustee or any such agent shall be affected by notice to the contrary.
[Except as otherwise provided herein,] the Notes of this series
(including this Temporary Global Note and the interests represented
hereby) are not subject to redemption at the option of the Company or
repayment at the option of the holder prior to maturity.
[The provisions of Article Fourteen of the Indenture do not apply to
Notes of this series (including this Temporary Global Note and the
interests represented hereby).]
The Notes of this series (including this Temporary Global Note and
the interests represented hereby) may be redeemed, as a whole but not in
part, at the option of the Company, at a redemption price equal to 100%
of their principal amount, together with interest accrued to the date
fixed for redemption, if, as a result of any amendment to, or change in,
the laws (or any regulations or rulings promulgated thereunder) of the
United States or any political subdivision or taxing authority thereof
or therein affecting taxation, or any amendment to or change in an
official position regarding the application or interpretation of such
laws, regulations or ruling, which amendment or change is effective on
or after _____________, 19__, the Company will become obligated to pay
additional amounts (as described on the face thereof or hereof) on the
next succeeding interest payment date; provided that such obligation to
pay additional amounts cannot be avoided by the use of reasonable
measures available to the Company; provided further, however, that in
the opinion of the Company, which opinion shall be rendered in good
faith, such measures need not be used if they have or will have a
material adverse impact on the conduct of its business; provided
further, however, that (a) no notice of such redemption may be given
earlier than __ days prior to the earliest date on which the Company
would be obligated to pay such additional amounts were a payment in
respect of the Notes of this series (including this Temporary Global
Note and the interests represented hereby) then due, and (b) at the time
such notice is given, such obligation to pay such additional amounts
remains in effect. Immediately prior to the giving of any notice of
redemption as provided in
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5 This form provides for Notes that are not subject to redemption at the
option of the Company or repayment at the option of the holder. The form,
as used, may be modified to provide, alternatively, for redemption at the
option of the Company or repayment at the option of the holder, with
the terms and conditions of such redemption or repayment, as the case may be,
including provisions regarding sinking funds, if applicable, redemption
prices and notice periods, set forth therein.
10
this paragraph, the Company shall deliver to
the Trustee a certificate stating that the Company is entitled to effect
such redemption and setting forth a statement of facts showing that the
conditions precedent to the right of the Company so to redeem have
occurred and an Opinion of Counsel to such effect based on such
statement of facts.
In addition, if the Company determines that any payment made outside
the United States and its possessions by the Company or any of its
paying agents of the full amount of principal or interest due with
respect to any Bearer Note of the series of which this Temporary Global
Note is a part or any related coupon would, under any present or future
laws or regulations of the United States affecting taxation or
otherwise, be subject to any certification, identification or other
reporting requirement of any kind, the effect of which requirement is
the disclosure to the Company, any paying agent or any governmental
authority of the nationality, residence or identity of a beneficial
owner of such Bearer Note or coupon who is a United States Alien (as
defined herein) (other than such a requirement (a) which would not be
applicable to a payment made by the Company or any one of its paying
agents (i) directly to the beneficial owner or (ii) to any custodian,
nominee or other agent of the beneficial owner, or (b) which can be
satisfied by the custodian, nominee or other agent certifying that the
beneficial owner is a United States Alien, provided in each case
referred to in clauses (a)(ii) and (b) that payment by such custodian,
nominee or other agent of such beneficial owner is not otherwise subject
to any such requirement or (c) which would not be applicable to a
payment made to any other paying agent in Western Europe), the Company
at its election will either (x) redeem the Notes of this series
(including this Temporary Global Note and the interests represented
hereby), as a whole but not in part, at a redemption price equal to 100%
of their principal amount, together with interest accrued to the date
fixed for redemption, or (y) if and so long as the conditions of the
[______] paragraph on the face of this Temporary Global Note are
satisfied, pay the additional amounts specified in such paragraph. The
Company will make such determination and election and notify the Trustee
thereof as soon as practicable, and the Trustee will promptly give
notice of such determination in the manner provided below (the
"Determination Notice"), in each case stating the effective date of such
certification, information, documentation or other reporting
requirement, whether the Company will redeem the Notes (including this
Temporary Global Note and the interests represented hereby), or will pay
the additional amounts specified in such paragraph and (if applicable)
the last date by which the redemption of the Notes (including this
Temporary Global Note and the interests represented hereby), must take
place. If the Company elects to redeem the Notes (including this
Temporary Global Note and the interests represented hereby) such
redemption shall take place on such date, not later than one year after
publication of the Determination Notice, as the Company elects by notice
to the Trustee at least __ days before such date, unless shorter notice
is acceptable to the Trustee. Upon receipt of notice from the Company
as to the date of redemption, the Trustee will cause notice thereof to
be duly published in the manner provided below. Notwithstanding the
foregoing, the Company will not so redeem the Notes (including this
Temporary Global Note and the interests represented hereby) if the
Company subsequently determines, not less than __ days prior to the date
fixed for redemption, that subsequent payments on the Notes (including
this Temporary Global Note and the interests represented hereby) would
not be subject to any such requirement, in which case the Company will
promptly notify the Trustee, which will promptly give notice of that
determination in the manner provided below, and any earlier redemption
notice will thereupon
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be revoked and of no further effect. If the
Company elects as provided in clause (y) above to pay additional
amounts, and as long as the Company is obligated to pay such additional
amounts, the Company may subsequently redeem the Notes (including this
Temporary Global Note and the interests represented hereby), at any
time, as a whole but not in part, at a redemption price equal to 100% of
their principal amount, together with interest accrued to the date fixed
for redemption, including any additional amounts required to be paid but
without reduction for applicable United States of America withholding
taxes.
With respect to any redemption made pursuant to the terms of this
Note, no payment in respect of the portion of the redemption price which
represents accrued interest thereon shall be made at any office or
agency of the Company in the United States or by check mailed to any
address in the United States or by transfer to an account maintained
with a bank located in the United States.
Notice of redemption will be given by publication in an Authorized
Newspaper in The City of New York and, if the Notes of this series are
then listed on [The International Stock Exchange of the United Kingdom
and the Republic of Ireland, Limited] [the Luxembourg Stock Exchange]
[or] any [other] stock exchange located outside the United States and
such stock exchange shall so require, in [London] [Luxembourg] [or] in
any [other] required city outside the United States or, if not
practicable, elsewhere in Europe, [and by mail to holders of Registered
Notes], not less than __ nor more than __ days prior to the dated fixed
for redemption.
If an Event of Default (defined in the Indenture as (i) the
Company's failure to pay principal of (or premium, if any, on) the Notes
when due, or to pay interest on the Notes within thirty days after the
same becomes due, (ii) the Company's breach of its other covenants
contained in this Note or in the Indenture, which breach is not cured
within ninety days after written notice by the Trustee or by 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 Company)
shall occur with respect to the Notes, the principal of all the Notes
(including this Temporary Global Note and the interests represented
hereby) may be declared due and payable in the manner and with the
effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations
of the Company and the rights of the holders of the Notes and any
related coupons under the Indenture at any time by the Company with the
consent of the holders of not less than 662/3% in aggregate principal
amount of the Notes then outstanding and all other Securities then
outstanding issued 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 issued under the
Indenture and affected thereby, on behalf of the holders of all such
Securities and any related coupons, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under
the Indenture and their consequences. Any such consent or waiver by the
holder of this Temporary Global Note shall
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be conclusive and binding
upon such holder and upon all future holders of this Temporary Global
Note and the persons who are beneficial owners of interests represented
hereby, and of any Note (including any permanent global Note) issued in
exchange herefor or in lieu hereof whether or not notation of such
consent or waiver is made upon this Temporary Global Note.
No reference herein to the Indenture and no provision of this
Temporary Global Note or of the Indenture shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay
the principal of and interest (including additional amounts, as
described on the face hereof) on this Temporary Global Note at the
times, places and rate, and in the coin or currency, herein prescribed.
No recourse shall be had for the payment of the principal or the
interest on this Temporary Global 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 Company 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 the issue hereof, expressly waived and released.
The Notes of this series (including this Temporary Global Note)
shall be dated the date of the original issuance of the first Note of
such series to be issued.
The Indenture, the Notes (including this Temporary Global Note) and
any coupons appertaining thereto shall be governed by and construed in
accordance with the laws of the State of New York.
All terms used in this Temporary Global Note which are defined in
the Indenture shall have the meanings assigned to them in the
Indenture.
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Schedule A
SCHEDULE OF EXCHANGES
Principal Amount
exchanged for one Remaining
or more Interests principal
in a permanent amount Notation made
Date global Note or one following on behalf of the
Exchange or more definitive such [Trustee][Security
Made Notes exchange Registrar]
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