EXHIBIT 4-cc
[FORM OF FACE OF SECURITY]
Euro Fixed Rate Subordinated Registered Note
REGISTERED REGISTERED
No. EFXRR [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.](1)
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(1) Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue
Date.
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN
ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM
BANKING ACT 1987.](2)
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(2) Applies only if this Note is denominated in pounds
sterling and matures more than one year from and including the
Original Issue Date.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE
METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF
APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER
THE SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY
RESIDENT OF JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN
JAPAN INCLUDING ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF
JAPAN) OR TO OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AND OTHERWISE IN
COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER
RELEVANT LAWS AND REGULATIONS OF JAPAN.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A
MATURITY OF NOT LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT
IN JAPAN PRIOR TO THE DATE WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH
RESPECT TO THIS NOTE. IF (i) INTEREST PAYMENTS ON THIS NOTE ARE
DENOMINATED IN JAPANESE YEN AND PRINCIPAL PAYMENTS ARE DENOMINATED IN A
CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE YEN OR (ii) PRINCIPAL
PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND INTEREST PAYMENTS
ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE YEN,
THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN JAPAN OR
TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR TO THE DATE WHICH IS
180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (together with its successors and assigns, 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 previously redeemed
or repaid) and to pay interest thereon at the Interest Rate per annum
specified above from and including the Interest Accrual Date specified
above until but excluding the date the principal hereof is paid or duly
made available for payment (except as provided below), in arrears on each
Interest Payment Date specified above commencing on the Interest Payment
Date next succeeding the Interest Accrual Date specified above, and at
maturity (or on any redemption or repayment date); provided, however, that
if the Interest Accrual 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 Interest
Accrual Date to the registered holder of this Note on the Record Date with
respect to such second Interest Payment Date. Except as provided above and
unless otherwise indicated on the face of this Note, the Interest Payment
Dates on this Note shall be March 1 and September 1.
Interest on this Note will accrue from and including 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 and including
the Interest Accrual Date, until but excluding the date the principal hereof
has been paid or duly made available for payment (except as provided below).
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 Notes)
is registered at the close of business on the date 15 calendar days prior to
such Interest Payment Date (whether or not a Business Day) (each such date a
"Record Date"); provided, however, that interest payable at maturity,
redemption or repayment 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 maturity (or on any redemption or repayment date) will be made
in immediately available funds upon surrender of this Note at the office or
agency of the Principal Paying Agent, as defined on the reverse hereof, or at
such other paying agency as the Issuer may determine (each, a "Paying Agent,"
which term shall include the Principal Paying Agent). Payment of the principal
of and premium, if any, and interest on this Note will be made in the
Specified Currency indicated above; provided, however, that U.S. dollar
payments of interest, other than interest due at maturity or on any date of
redemption or repayment, will be made by U.S. 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 on any
date of redemption or repayment, by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received by the
Principal Paying Agent in writing not less than 15 calendar days prior to the
applicable Interest Payment Date. If this Note is denominated in a Specified
Currency other than U.S. dollars, payments of interest hereon will be made by
wire transfer of immediately available funds to an account maintained by the
holder hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Principal Paying Agent in
writing not less than 15 calendar days prior to the applicable Interest
Payment Date. If such wire transfer instructions are not so received, such
interest payments will be made by check payable in such Specified Currency
mailed to the address of the person entitled thereto as such address shall
appear in the Note register.
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 Authenticating Agent, as defined 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.
DATED: MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
AUTHENTICATING AGENT'S
CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Authenticating Agent
By:_____________________________
Authorized Officer
[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated
Global Medium-Term Notes, Series [D/E], 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 April 15, 1989, as
supplemented by a First Supplemental Subordinated Indenture dated as of May
15, 1991 and a Second Supplemental Subordinated Indenture dated as of April
15, 1996 between Morgan Stanley Group Inc. (as predecessor of the Issuer)
and The First National Bank of Chicago, as Trustee (the "Trustee," which
term includes any successor trustee under the Subordinated Indenture) as
further supplemented by a Third Supplemental Subordinated Indenture dated
as of June 1, 1997 between the Issuer and the Trustee (as so supplemented,
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 The Chase Manhattan Bank (formerly known as Chemical Bank) as
Authenticating Agent (the "Authenticating Agent," which term includes any
successor authenticating agent appointed by the Trustee) with respect to
the Notes, and the Issuer has appointed The Chase Manhattan Bank (formerly
known as Chemical Bank), acting through its principal corporate trust
office in the Borough of Manhattan, The City of New York, as a paying agent
for the Notes in the United States and The Chase Manhattan Bank (formerly
known as Chemical Bank), London Branch, at its corporate trust office in
London, as its principal paying agent for the Notes outside the United
States (the "Principal Paying Agent," which term includes any additional or
successor principal paying agent appointed by the Issuer). 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.
If this Note is denominated in pounds sterling, the Issuer
represents that it is not an authorized institution (for purposes of the
United Kingdom Banking Act 1987) nor a European authorized institution as
defined by Regulation 3 of the Banking Co-ordination (Second Council
Directive) Regulations 1992 and repayment of the principal of, and payment
of any interest or premium on, this Note has not been guaranteed, that it
has complied with its obligations under the listing rules of the London
Stock Exchange Limited (the "Rules") and that, since the last publication
in compliance with the Rules of information about it, it, having made all
reasonable inquiries, has not become aware of any change in circumstances
which could reasonably be regarded as significantly and adversely affecting
its ability to meet its obligations in respect of the Notes as they fall
due.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the
face hereof in accordance with the provisions of the following two
paragraphs and except as set forth below, will not be redeemable or subject
to repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth
on the face hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is
100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). 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.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment (except as provided below). For this Note to be
repaid at the option of the holder hereof, the Principal Paying Agent must
receive at its office in London, at least 15 but not more than 30 days
prior to the date of repayment, (i) this 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, Western Europe or
Japan setting forth the name of the holder of this Note, the principal
amount hereof, the certificate number of this Note or a description of this
Note's tenor and terms, the principal amount hereof to be repaid, a
statement that the option to elect repayment is being exercised thereby and
a guarantee that this Note, together with the form entitled "Option to
Elect Repayment" duly completed, will be received by the Principal Paying
Agent not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, that such
telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Principal Paying
Agent by such fifth Business Day. Unless otherwise indicated on the face
of this Note, exercise of such repayment option by the holder hereof shall
be irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date (or any
earlier redemption or repayment date), as the case may be. Interest
payments for this Note will be computed and paid on the basis of a 360-day
year of twelve 30-day months unless otherwise specified on the face hereof.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on
such date need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or on the Maturity Date (or any redemption or
repayment date), and no interest on such payment shall accrue for the
period from and after the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) to such next succeeding Business Day.
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 is issuable only in the minimum denominations set forth on the
face hereof or any amount in excess thereof which is an integral multiple
of 1,000 units of the Specified Currency set forth on the face hereof.
The Chase Manhattan Bank (formerly known as Chemical Bank)
has been appointed registrar for the Notes (the "Registrar," which term
includes any successor registrar appointed by the Issuer), and the
Registrar will maintain at its office in The City of New York, a register
for the registration and transfer of Notes. This Note may be transferred
at either the aforesaid New York office or at the London 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 and having a like
aggregate principal amount in authorized denominations, subject to the
terms and conditions set forth herein; provided, however, that the
Registrar will 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 offices 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 service 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 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 this Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and this 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 Registrar, a new Note of like tenor
will be issued by the Issuer in exchange for this Note, but, if this Note
has been destroyed, lost or stolen, only upon receipt of evidence
satisfactory to the Registrar and the Issuer that this 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 the 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 Global 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.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration or Redemption," then (i) if the
principal hereof is declared to be due and payable as described in the
preceding paragraph, the amount of principal due and payable with respect
to this Note shall be limited to the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to the
date of declaration, which amortization shall be calculated using the
"interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the Subordinated
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to
be due and payable on the date of any such vote and (iii) for the purpose
of any vote of securityholders taken pursuant to the Subordinated Indenture
following the acceleration of payment of this Note, the principal amount
hereof shall equal the amount of principal due and payable with respect to
this Note, calculated as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed
for redemption (except that if this Note is subject to "Modified Payment
upon Acceleration or Redemption," such redemption price would be limited to
the aggregate principal amount hereof multiplied by the sum of the Issue
Price specified on the face hereof (expressed as a percentage of the
aggregate principal amount) plus the original issue discount amortized from
the Interest Accrual Date to the date of redemption, which amortization
shall be calculated using the "interest method" (computed in accordance
with generally accepted accounting principles in effect on the date of
redemption), if the Issuer determines that, as a result of any change in
or amendment to the laws (or any regulations or rulings promulgated
thereunder) of the United States or of any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in official
position regarding the application or interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or
after the Original Issue Date hereof, the Issuer has or will become
obligated to pay Additional Amounts (as defined below) with respect to the
Notes as described below. Prior to the giving of any notice of redemption
pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a
certificate stating that the Issuer is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions
precedent to the right of the Issuer to so redeem have occurred, and (ii)
an opinion of independent counsel satisfactory to the Trustee to such
effect based on such statement of facts; provided that no such notice of
redemption shall be given earlier than 60 days prior to the earliest date
on which the Issuer would be obligated to pay such Additional Amounts if a
payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in such notice.
The Issuer will, subject to certain exceptions and
limitations set forth below, pay such additional amounts (the "Additional
Amounts") to the holder of this Note who is a United States Alien (as
defined below) as may be necessary in order that every net payment of the
principal of and interest on this Note and any other amounts payable on
this Note, after withholding for or on account of any present or future
tax, assessment or governmental charge imposed upon or as a result of such
payment by the United States (or any political subdivision or taxing
authority thereof or therein), will not be less than the amount provided
for in this Note to be then due and payable. The Issuer will not, however,
be required to make any payment of Additional Amounts to any such holder
for or on account of:
(a) any such tax, assessment or other governmental charge
that would not have been so 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 such holder, if such holder
is an estate, a trust, a partnership or a corporation) and the United
States, including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, member or shareholder) being or having been a citizen
or resident thereof or being or having been engaged in a trade or business
or present therein or having, or having had, a permanent establishment
therein or (ii) the presentation by the holder of this Note for payment on
a date more than 15 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 or
personal property tax or any similar tax, assessment or 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 or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other tax-
exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect of
this 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, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning the
nationality, residence or identity of the holder or beneficial owner of
this Note, if such compliance is required by statute or by regulation of
the United States or of any political subdivision or taxing authority
thereof or therein as a precondition to relief or exemption from such tax,
assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power of all
classes of stock entitled to vote of the Issuer or as a direct or indirect
subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any
payment on this Note to a United States Alien who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the United States (or
any political subdivision thereof) to be included in the income, for tax
purposes, of a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or a beneficial owner who would not have been
entitled to the Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the holder of this Note.
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 all series issued
under the Subordinated Indenture then outstanding and affected (voting as
one class), 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 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; 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, premium, if
any, 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 (as defined below)
on the date of such payment or, if the Market Exchange Rate is not
available on such date, as of the most recent practicable date; provided,
however, that if such Specified Currency is replaced by a single European
currency (expected to be named the Euro), the payment of principal of,
premium, if any, or interest on any Note denominated in such currency shall
be effected in the new single European currency in conformity with legally
applicable measures taken pursuant to, or by virtue of, the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty"). Any payment made under such
circumstances in U.S. dollars (or, if applicable, such new European
currency) where the required payment is in a Specified Currency other than
U.S. dollars will not constitute an Event of Default.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then with respect to each due date for any such
payment on or after the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the European Community ("EC")
and has not become a currency in its own right, replacing all or some of
the currencies of the member states of the EC, the Issuer shall choose a
substitute currency (the "Chosen Currency") which may be any currency which
was, on the last day on which the ECU was used as the unit of account of
the EC, a component currency of the ECU basket or U.S. dollars, in which
all such payments due on or after that date with respect to this Note shall
be made. Notice of the Chosen Currency so selected shall, where
practicable, be published in the manner described in "Notices" below. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then on the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC and has
not become a currency in its own right, replacing all or some of the
currencies of the member states of the EC, the Issuer shall choose a Chosen
Currency in which all such payments with respect to this Note having a due
date prior thereto but not yet presented for payment are to be made. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined on the following
basis by, or on behalf of, an Exchange Rate Agent appointed by the Issuer.
The amounts and components composing the ECU for this purpose (the
"Components") shall be the amounts and components composing the ECU as of
the last date on which the ECU was used as the unit of account of the EC.
The equivalent of the ECU in the Chosen Currency shall be calculated by,
first, aggregating the U.S. dollar equivalents of the Components; and then,
in the case of a Chosen Currency other than U.S. dollars, using the rate
used for determining the U.S. dollar equivalent of the Components in the
Chosen Currency as set forth below, calculating the equivalent in the
Chosen Currency of such aggregate amount in U.S. dollars.
The U.S. dollar equivalent of each of the Components shall
be determined by, or on behalf of, the Exchange Rate Agent on the basis of
the middle spot delivery quotations prevailing at 2:30 P.M., Brussels time,
on the Day of Valuation, as obtained by, or on behalf of, the Exchange Rate
Agent from one or more major banks, as selected by the Issuer, in the
country of issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf;
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of notes
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the
specified office of a paying agent in the country of the Chosen Currency,
or, if none, or at the option of the holder, at the specified office of any
Paying Agent either by a check drawn on, or by transfer to an account
maintained by the holder with, a bank in the principal financial center of
the country of the Chosen Currency.
All determinations referred to above made by, or on behalf
of, the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at
such entity's sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and binding on holders of this Note.
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. If this Note is listed on the London Stock
Exchange Limited and such Exchange so requires, the Issuer shall maintain a
Paying Agent in London. 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 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.
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
none of the Issuer, the Trustee or any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal
of, premium, if any, 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;
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to
close in The City of New York or in the City of London and (i) if this Note
is denominated in a Specified Currency other than U.S. dollars, Australian
dollars or ECUs, in the principal financial center of the country of the
Specified Currency, (ii) if this Note is denominated in Australian dollars,
in Sydney and (iii) if this Note is denominated in ECUs, that is not a non-
ECU clearing day, as determined by the ECU Banking Association in Paris;
(b) the term "Market Exchange Rate" means the noon U.S.
dollar buying rate in The City of New York for wire transfers of the
Specified Currency indicated on the face hereof as certified for customs
purposes by the Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to be sent to the
holders of the Notes at each holder's address as that address appears in
the register for the Notes by first class mail, postage prepaid, and to be
given by publication in an authorized newspaper in the English language and
of general circulation in the Borough of Manhattan, The City of New York,
and London or, if publication in London is not practical, in an English
language newspaper with general circulation in Western Europe. Such
publication is expected to be made in The Wall Street Journal and the
Financial Times. Such Notices will be deemed to have been given on the
date of such publication, or if published in such newspapers on different
dates, on the date of the first such publication;
(d) the term "United States" means the United States of
America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction;
and
(e) 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, one or more of the members of
which is a foreign corporation, a non-resident alien individual or a non-
resident alien fiduciary of a foreign estate or trust.
All other 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.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ________________________ Custodian _______________
(Cust) (Minor)
Under Uniform Gifts to Minors Act ____________________________________
(State)
Additional abbreviations may also be used though not in the
above list.
___________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, 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:___________________________
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.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional 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 not be less than the minimum authorized
denomination) 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): ________.
Dated: _____________ _______________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement.
[FORM OF FACE OF SECURITY]
Euro Fixed Rate Subordinated Registered Note
REGISTERED REGISTERED
No. EFXRR [PRINCIPAL AMOUNT]
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.](1)
------------
(1) Applies only if this Note is denominated in pounds sterling and
matures not more than one year from and including the Original Issue
Date.
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN
ACCORDANCE WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM
BANKING ACT 1987.](2)
------------
(2) Applies only if this Note is denominated in pounds
sterling and matures more than one year from and including the
Original Issue Date.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID," "ORIGINAL YIELD TO
MATURITY" AND "INITIAL ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE
METHOD) SET FORTH BELOW HAVE BEEN COMPLETED SOLELY FOR THE PURPOSES OF
APPLYING THE FEDERAL INCOME TAX ORIGINAL ISSUE DISCOUNT ("OID") RULES.
THIS NOTE HAS NOT BEEN, AND WILL NOT BE, REGISTERED UNDER
THE SECURITIES AND EXCHANGE LAW OF JAPAN. THIS NOTE MAY NOT BE OFFERED OR
SOLD, DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY
RESIDENT OF JAPAN (WHICH TERM AS USED HEREIN MEANS ANY PERSON RESIDENT IN
JAPAN INCLUDING ANY CORPORATION OR OTHER ENTITY ORGANIZED UNDER THE LAWS OF
JAPAN) OR TO OTHERS FOR THE RE-OFFERING OR RE-SALE, DIRECTLY OR
INDIRECTLY, IN JAPAN OR TO A RESIDENT OF JAPAN EXCEPT PURSUANT TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF, AND OTHERWISE IN
COMPLIANCE WITH, THE SECURITIES AND EXCHANGE LAW OF JAPAN AND OTHER
RELEVANT LAWS AND REGULATIONS OF JAPAN.
IF THIS NOTE IS DENOMINATED IN JAPANESE YEN, IT SHALL HAVE A
MATURITY OF NOT LESS THAN ONE YEAR AND IT MAY NOT BE OFFERED OR SOLD,
DIRECTLY OR INDIRECTLY, IN JAPAN OR TO, OR FOR THE BENEFIT OF, ANY RESIDENT
IN JAPAN PRIOR TO THE DATE WHICH IS 90 DAYS AFTER THE SETTLEMENT DATE WITH
RESPECT TO THIS NOTE. IF (i) INTEREST PAYMENTS ON THIS NOTE ARE
DENOMINATED IN JAPANESE YEN AND PRINCIPAL PAYMENTS ARE DENOMINATED IN A
CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE YEN OR (ii) PRINCIPAL
PAYMENTS ON THIS NOTE ARE DENOMINATED IN JAPANESE YEN AND INTEREST PAYMENTS
ARE DENOMINATED IN A CURRENCY OR CURRENCY UNIT OTHER THAN JAPANESE YEN,
THIS NOTE MAY NOT BE OFFERED OR SOLD, DIRECTLY OR INDIRECTLY, IN JAPAN OR
TO, OR FOR THE BENEFIT OF, ANY RESIDENT OF JAPAN PRIOR TO THE DATE WHICH IS
180 DAYS AFTER THE SETTLEMENT DATE WITH RESPECT TO THIS NOTE.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Fixed Rate)
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (together with its successors and assigns, 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 previously redeemed
or repaid) and to pay interest thereon at the Interest Rate per annum
specified above from and including the Interest Accrual Date specified
above until but excluding the date the principal hereof is paid or duly
made available for payment (except as provided below), in arrears on each
Interest Payment Date specified above commencing on the Interest Payment
Date next succeeding the Interest Accrual Date specified above, and at
maturity (or on any redemption or repayment date); provided, however, that
if the Interest Accrual 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 Interest
Accrual Date to the registered holder of this Note on the Record Date with
respect to such second Interest Payment Date. Except as provided above and
unless otherwise indicated on the face of this Note, the Interest Payment
Dates on this Note shall be March 1 and September 1.
Interest on this Note will accrue from and including 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 and including
the Interest Accrual Date, until but excluding the date the principal hereof
has been paid or duly made available for payment (except as provided below).
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 Notes)
is registered at the close of business on the date 15 calendar days prior to
such Interest Payment Date (whether or not a Business Day) (each such date a
"Record Date"); provided, however, that interest payable at maturity,
redemption or repayment 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 maturity (or on any redemption or repayment date) will be made
in immediately available funds upon surrender of this Note at the office or
agency of the Principal Paying Agent, as defined on the reverse hereof, or at
such other paying agency as the Issuer may determine (each, a "Paying Agent,"
which term shall include the Principal Paying Agent). Payment of the principal
of and premium, if any, and interest on this Note will be made in the
Specified Currency indicated above; provided, however, that U.S. dollar
payments of interest, other than interest due at maturity or on any date of
redemption or repayment, will be made by U.S. 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 on any
date of redemption or repayment, by wire transfer of immediately available
funds if appropriate wire transfer instructions have been received by the
Principal Paying Agent in writing not less than 15 calendar days prior to the
applicable Interest Payment Date. If this Note is denominated in a Specified
Currency other than U.S. dollars, payments of interest hereon will be made by
wire transfer of immediately available funds to an account maintained by the
holder hereof with a bank located outside the United States if appropriate
wire transfer instructions have been received by the Principal Paying Agent in
writing not less than 15 calendar days prior to the applicable Interest
Payment Date. If such wire transfer instructions are not so received, such
interest payments will be made by check payable in such Specified Currency
mailed to the address of the person entitled thereto as such address shall
appear in the Note register.
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 Authenticating Agent, as defined 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.
DATED: MORGAN STANLEY, DEAN WITTER,
DISCOVER & CO.
By:_____________________________
Name:
Title:
AUTHENTICATING AGENT'S
CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Authenticating Agent
By:_____________________________
Authorized Officer
[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated
Global Medium-Term Notes, Series [D/E], 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 April 15, 1989, as
supplemented by a First Supplemental Subordinated Indenture dated as of May
15, 1991 and a Second Supplemental Subordinated Indenture dated as of April
15, 1996 between Morgan Stanley Group Inc. (as predecessor of the Issuer)
and The First National Bank of Chicago, as Trustee (the "Trustee," which
term includes any successor trustee under the Subordinated Indenture) as
further supplemented by a Third Supplemental Subordinated Indenture dated
as of June 1, 1997 between the Issuer and the Trustee (as so supplemented,
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 The Chase Manhattan Bank (formerly known as Chemical Bank) as
Authenticating Agent (the "Authenticating Agent," which term includes any
successor authenticating agent appointed by the Trustee) with respect to
the Notes, and the Issuer has appointed The Chase Manhattan Bank (formerly
known as Chemical Bank), acting through its principal corporate trust
office in the Borough of Manhattan, The City of New York, as a paying agent
for the Notes in the United States and The Chase Manhattan Bank (formerly
known as Chemical Bank), London Branch, at its corporate trust office in
London, as its principal paying agent for the Notes outside the United
States (the "Principal Paying Agent," which term includes any additional or
successor principal paying agent appointed by the Issuer). 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.
If this Note is denominated in pounds sterling, the Issuer
represents that it is not an authorized institution (for purposes of the
United Kingdom Banking Act 1987) nor a European authorized institution as
defined by Regulation 3 of the Banking Co-ordination (Second Council
Directive) Regulations 1992 and repayment of the principal of, and payment
of any interest or premium on, this Note has not been guaranteed, that it
has complied with its obligations under the listing rules of the London
Stock Exchange Limited (the "Rules") and that, since the last publication
in compliance with the Rules of information about it, it, having made all
reasonable inquiries, has not become aware of any change in circumstances
which could reasonably be regarded as significantly and adversely affecting
its ability to meet its obligations in respect of the Notes as they fall
due.
Unless otherwise provided on the face hereof, this Note will
not be subject to any sinking fund and, unless otherwise provided on the
face hereof in accordance with the provisions of the following two
paragraphs and except as set forth below, will not be redeemable or subject
to repayment at the option of the holder prior to maturity.
If so indicated on the face of this Note, this Note may be
redeemed in whole or in part at the option of the Issuer on or after the
Initial Redemption Date specified on the face hereof on the terms set forth
on the face hereof, together with interest accrued and unpaid hereon to the
date of redemption (except as provided below). If this Note is subject to
"Annual Redemption Percentage Reduction," the Initial Redemption Percentage
indicated on the face hereof will be reduced on each anniversary of the
Initial Redemption Date by the Annual Redemption Percentage Reduction
specified on the face hereof until the redemption price of this Note is
100% of the principal amount hereof, together with interest accrued and
unpaid hereon to the date of redemption (except as provided below). 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.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein.
On any Optional Repayment Date, this Note will be repayable in whole or in
part in increments of $1,000 or, if this Note is denominated in a Specified
Currency other than U.S. dollars, in increments of 1,000 units of such
Specified Currency (provided that any remaining principal amount hereof
shall not be less than the minimum authorized denomination hereof) at the
option of the holder hereof at a price equal to 100% of the principal
amount to be repaid, together with interest accrued and unpaid hereon to
the date of repayment (except as provided below). For this Note to be
repaid at the option of the holder hereof, the Principal Paying Agent must
receive at its office in London, at least 15 but not more than 30 days
prior to the date of repayment, (i) this 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, Western Europe or
Japan setting forth the name of the holder of this Note, the principal
amount hereof, the certificate number of this Note or a description of this
Note's tenor and terms, the principal amount hereof to be repaid, a
statement that the option to elect repayment is being exercised thereby and
a guarantee that this Note, together with the form entitled "Option to
Elect Repayment" duly completed, will be received by the Principal Paying
Agent not later than the fifth Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, that such
telegram, telex, facsimile transmission or letter shall only be effective
if this Note and form duly completed are received by the Principal Paying
Agent by such fifth Business Day. Unless otherwise indicated on the face
of this Note, exercise of such repayment option by the holder hereof shall
be irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
Interest payments on this Note will include interest accrued
to but excluding the Interest Payment Dates or the Maturity Date (or any
earlier redemption or repayment date), as the case may be. Interest
payments for this Note will be computed and paid on the basis of a 360-day
year of twelve 30-day months unless otherwise specified on the face hereof.
In the case where the Interest Payment Date or the Maturity
Date (or any redemption or repayment date) does not fall on a Business Day,
payment of interest, premium, if any, or principal otherwise payable on
such date need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or on the Maturity Date (or any redemption or
repayment date), and no interest on such payment shall accrue for the
period from and after the Interest Payment Date or the Maturity Date (or
any redemption or repayment date) to such next succeeding Business Day.
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 is issuable only in the minimum denominations set forth on the
face hereof or any amount in excess thereof which is an integral multiple
of 1,000 units of the Specified Currency set forth on the face hereof.
The Chase Manhattan Bank (formerly known as Chemical Bank)
has been appointed registrar for the Notes (the "Registrar," which term
includes any successor registrar appointed by the Issuer), and the
Registrar will maintain at its office in The City of New York, a register
for the registration and transfer of Notes. This Note may be transferred
at either the aforesaid New York office or at the London 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 and having a like
aggregate principal amount in authorized denominations, subject to the
terms and conditions set forth herein; provided, however, that the
Registrar will 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 offices 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 service 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 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 this Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and this 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 Registrar, a new Note of like tenor
will be issued by the Issuer in exchange for this Note, but, if this Note
has been destroyed, lost or stolen, only upon receipt of evidence
satisfactory to the Registrar and the Issuer that this 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 the 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 Global 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.
If the face hereof indicates that this Note is subject to
"Modified Payment upon Acceleration or Redemption," then (i) if the
principal hereof is declared to be due and payable as described in the
preceding paragraph, the amount of principal due and payable with respect
to this Note shall be limited to the aggregate principal amount hereof
multiplied by the sum of the Issue Price specified on the face hereof
(expressed as a percentage of the aggregate principal amount) plus the
original issue discount amortized from the Interest Accrual Date to the
date of declaration, which amortization shall be calculated using the
"interest method" (computed in accordance with generally accepted
accounting principles in effect on the date of declaration), (ii) for the
purpose of any vote of securityholders taken pursuant to the Subordinated
Indenture prior to the acceleration of payment of this Note, the principal
amount hereof shall equal the amount that would be due and payable hereon,
calculated as set forth in clause (i) above, if this Note were declared to
be due and payable on the date of any such vote and (iii) for the purpose
of any vote of securityholders taken pursuant to the Subordinated Indenture
following the acceleration of payment of this Note, the principal amount
hereof shall equal the amount of principal due and payable with respect to
this Note, calculated as set forth in clause (i) above.
This Note may be redeemed, as a whole, at the option of the
Issuer at any time prior to maturity, upon the giving of a notice of
redemption as described below, at a redemption price equal to 100% of the
principal amount hereof, together with accrued interest to the date fixed
for redemption (except that if this Note is subject to "Modified Payment
upon Acceleration or Redemption," such redemption price would be limited to
the aggregate principal amount hereof multiplied by the sum of the Issue
Price specified on the face hereof (expressed as a percentage of the
aggregate principal amount) plus the original issue discount amortized from
the Interest Accrual Date to the date of redemption, which amortization
shall be calculated using the "interest method" (computed in accordance
with generally accepted accounting principles in effect on the date of
redemption), if the Issuer determines that, as a result of any change in
or amendment to the laws (or any regulations or rulings promulgated
thereunder) of the United States or of any political subdivision or taxing
authority thereof or therein affecting taxation, or any change in official
position regarding the application or interpretation of such laws,
regulations or rulings, which change or amendment becomes effective on or
after the Original Issue Date hereof, the Issuer has or will become
obligated to pay Additional Amounts (as defined below) with respect to the
Notes as described below. Prior to the giving of any notice of redemption
pursuant to this paragraph, the Issuer shall deliver to the Trustee (i) a
certificate stating that the Issuer is entitled to effect such redemption
and setting forth a statement of facts showing that the conditions
precedent to the right of the Issuer to so redeem have occurred, and (ii)
an opinion of independent counsel satisfactory to the Trustee to such
effect based on such statement of facts; provided that no such notice of
redemption shall be given earlier than 60 days prior to the earliest date
on which the Issuer would be obligated to pay such Additional Amounts if a
payment in respect of this Note were then due.
Notice of redemption will be given not less than 30 nor more
than 60 days prior to the date fixed for redemption, which date and the
applicable redemption price will be specified in such notice.
The Issuer will, subject to certain exceptions and
limitations set forth below, pay such additional amounts (the "Additional
Amounts") to the holder of this Note who is a United States Alien (as
defined below) as may be necessary in order that every net payment of the
principal of and interest on this Note and any other amounts payable on
this Note, after withholding for or on account of any present or future
tax, assessment or governmental charge imposed upon or as a result of such
payment by the United States (or any political subdivision or taxing
authority thereof or therein), will not be less than the amount provided
for in this Note to be then due and payable. The Issuer will not, however,
be required to make any payment of Additional Amounts to any such holder
for or on account of:
(a) any such tax, assessment or other governmental charge
that would not have been so 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 such holder, if such holder
is an estate, a trust, a partnership or a corporation) and the United
States, including, without limitation, such holder (or such fiduciary,
settlor, beneficiary, member or shareholder) being or having been a citizen
or resident thereof or being or having been engaged in a trade or business
or present therein or having, or having had, a permanent establishment
therein or (ii) the presentation by the holder of this Note for payment on
a date more than 15 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 or
personal property tax or any similar tax, assessment or 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 or controlled foreign
corporation or passive foreign investment company with respect to the
United States or as a corporation which accumulates earnings to avoid
United States federal income tax or as a private foundation or other tax-
exempt organization;
(d) any tax, assessment or other governmental charge that is
payable otherwise than by withholding from payments on or in respect of
this 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, this Note, if such payment can be made without such
withholding by any other Paying Agent in a city in Western Europe;
(f) any tax, assessment or other governmental charge that
would not have been imposed but for the failure to comply with
certification, information or other reporting requirements concerning the
nationality, residence or identity of the holder or beneficial owner of
this Note, if such compliance is required by statute or by regulation of
the United States or of any political subdivision or taxing authority
thereof or therein as a precondition to relief or exemption from such tax,
assessment or other governmental charge;
(g) any tax, assessment or other governmental charge imposed
by reason of such holder's past or present status as the actual or
constructive owner of 10% or more of the total combined voting power of all
classes of stock entitled to vote of the Issuer or as a direct or indirect
subsidiary of the Issuer; or
(h) any combination of items (a), (b), (c), (d), (e), (f) or
(g);
nor shall Additional Amounts be paid with respect to any
payment on this Note to a United States Alien who is a fiduciary or
partnership or other than the sole beneficial owner of such payment to the
extent such payment would be required by the laws of the United States (or
any political subdivision thereof) to be included in the income, for tax
purposes, of a beneficiary or settlor with respect to such fiduciary or a
member of such partnership or a beneficial owner who would not have been
entitled to the Additional Amounts had such beneficiary, settlor, member or
beneficial owner been the holder of this Note.
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 all series issued
under the Subordinated Indenture then outstanding and affected (voting as
one class), 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 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; 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, premium, if
any, 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 (as defined below)
on the date of such payment or, if the Market Exchange Rate is not
available on such date, as of the most recent practicable date; provided,
however, that if such Specified Currency is replaced by a single European
currency (expected to be named the Euro), the payment of principal of,
premium, if any, or interest on any Note denominated in such currency shall
be effected in the new single European currency in conformity with legally
applicable measures taken pursuant to, or by virtue of, the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty"). Any payment made under such
circumstances in U.S. dollars (or, if applicable, such new European
currency) where the required payment is in a Specified Currency other than
U.S. dollars will not constitute an Event of Default.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then with respect to each due date for any such
payment on or after the first business day in Brussels on which the ECU
ceases to be used as the unit of account of the European Community ("EC")
and has not become a currency in its own right, replacing all or some of
the currencies of the member states of the EC, the Issuer shall choose a
substitute currency (the "Chosen Currency") which may be any currency which
was, on the last day on which the ECU was used as the unit of account of
the EC, a component currency of the ECU basket or U.S. dollars, in which
all such payments due on or after that date with respect to this Note shall
be made. Notice of the Chosen Currency so selected shall, where
practicable, be published in the manner described in "Notices" below. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of the fourth business day in Brussels prior to the
date on which such payment is due.
If the principal of, premium, if any, or interest on, this
Note is payable in ECUs, then on the first business day in Brussels on
which the ECU ceases to be used as the unit of account of the EC and has
not become a currency in its own right, replacing all or some of the
currencies of the member states of the EC, the Issuer shall choose a Chosen
Currency in which all such payments with respect to this Note having a due
date prior thereto but not yet presented for payment are to be made. The
amount of each payment in such Chosen Currency shall be computed on the
basis of the equivalent of the ECU in that currency, determined as
described below, as of such first business day.
The equivalent of the ECU in the relevant Chosen Currency as
of any date (the "Day of Valuation") shall be determined on the following
basis by, or on behalf of, an Exchange Rate Agent appointed by the Issuer.
The amounts and components composing the ECU for this purpose (the
"Components") shall be the amounts and components composing the ECU as of
the last date on which the ECU was used as the unit of account of the EC.
The equivalent of the ECU in the Chosen Currency shall be calculated by,
first, aggregating the U.S. dollar equivalents of the Components; and then,
in the case of a Chosen Currency other than U.S. dollars, using the rate
used for determining the U.S. dollar equivalent of the Components in the
Chosen Currency as set forth below, calculating the equivalent in the
Chosen Currency of such aggregate amount in U.S. dollars.
The U.S. dollar equivalent of each of the Components shall
be determined by, or on behalf of, the Exchange Rate Agent on the basis of
the middle spot delivery quotations prevailing at 2:30 P.M., Brussels time,
on the Day of Valuation, as obtained by, or on behalf of, the Exchange Rate
Agent from one or more major banks, as selected by the Issuer, in the
country of issue of the component currency in question.
If for any reason no direct quotations are available for a
Component as of a Day of Valuation from any of the banks selected for this
purpose, in computing the U.S. dollar equivalent of such Component, the
Exchange Rate Agent shall (except as provided below) use the most recent
direct quotations for such Component obtained by it or on its behalf;
provided that such quotations were prevailing in the country of issue not
more than two Business Days before such Day of Valuation. If such most
recent quotations were so prevailing in the country of issue more than two
Business Days before such Day of Valuation, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of
cross rates derived from the middle spot delivery quotations for such
component currency and for the U.S. dollar prevailing at 2:30 P.M.,
Brussels time, on such Day of Valuation, as obtained by, or on behalf of,
the Exchange Rate Agent from one or more major banks, as selected by the
Issuer, in a country other than the country of issue of such component
currency. Notwithstanding the foregoing, the Exchange Rate Agent shall
determine the U.S. dollar equivalent of such Component on the basis of such
cross rates if the Issuer or such agent judges that the equivalent so
calculated is more representative than the U.S. dollar equivalent
calculated as provided in the first sentence of this paragraph. Unless
otherwise specified by the Issuer, if there is more than one market for
dealing in any component currency by reason of foreign exchange regulations
or for any other reason, the market to be referred to in respect of such
currency shall be that upon which a non-resident issuer of notes
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the
specified office of a paying agent in the country of the Chosen Currency,
or, if none, or at the option of the holder, at the specified office of any
Paying Agent either by a check drawn on, or by transfer to an account
maintained by the holder with, a bank in the principal financial center of
the country of the Chosen Currency.
All determinations referred to above made by, or on behalf
of, the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at
such entity's sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and binding on holders of this Note.
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. If this Note is listed on the London Stock
Exchange Limited and such Exchange so requires, the Issuer shall maintain a
Paying Agent in London. 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 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.
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
none of the Issuer, the Trustee or any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal
of, premium, if any, 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;
As used herein:
(a) the term "Business Day" means any day, other than a
Saturday or Sunday, that is neither a legal holiday nor a day on which
banking institutions are authorized or required by law or regulation to
close in The City of New York or in the City of London and (i) if this Note
is denominated in a Specified Currency other than U.S. dollars, Australian
dollars or ECUs, in the principal financial center of the country of the
Specified Currency, (ii) if this Note is denominated in Australian dollars,
in Sydney and (iii) if this Note is denominated in ECUs, that is not a non-
ECU clearing day, as determined by the ECU Banking Association in Paris;
(b) the term "Market Exchange Rate" means the noon U.S.
dollar buying rate in The City of New York for wire transfers of the
Specified Currency indicated on the face hereof as certified for customs
purposes by the Federal Reserve Bank of New York;
(c) the term "Notices" refers to notices to be sent to the
holders of the Notes at each holder's address as that address appears in
the register for the Notes by first class mail, postage prepaid, and to be
given by publication in an authorized newspaper in the English language and
of general circulation in the Borough of Manhattan, The City of New York,
and London or, if publication in London is not practical, in an English
language newspaper with general circulation in Western Europe. Such
publication is expected to be made in The Wall Street Journal and the
Financial Times. Such Notices will be deemed to have been given on the
date of such publication, or if published in such newspapers on different
dates, on the date of the first such publication;
(d) the term "United States" means the United States of
America (including the States and the District of Columbia), its
territories, its possessions and other areas subject to its jurisdiction;
and
(e) 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, one or more of the members of
which is a foreign corporation, a non-resident alien individual or a non-
resident alien fiduciary of a foreign estate or trust.
All other 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.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ________________________ Custodian _______________
(Cust) (Minor)
Under Uniform Gifts to Minors Act ____________________________________
(State)
Additional abbreviations may also be used though not in the
above list.
___________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, 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:___________________________
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.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional 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 not be less than the minimum authorized
denomination) 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): ________.
Dated: _____________ _______________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement.