EXHIBIT 4-jj
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL SENIOR BULL NOTE
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.](1)
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT
1987.](2)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES
INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER
NOTES OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
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.
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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.
(2) Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Bull Note)
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 bearer, upon surrender hereof, the
Final Redemption Price as specified in [Schedule A hereto](3) [Schedule A-1
hereto](4)" 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 Final Redemption Price is
paid or duly made available for payment (except as provided below), in
arrears on the Interest Payment Dates specified above, and at maturity (or
on any redemption or repayment date); provided, however, that if the
Interest Accrual Date occurs fifteen days or less prior to the first
Interest Payment Date occurring after the Interest Accrual Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date.
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 Final Redemption
Price is 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 holder of this Note at the office or agency of the Principal
Paying Agent (this and certain other capitalized terms used herein are defined
on the reverse of this Note) or at the office or agency of such other paying
agents outside the United States as the Issuer may determine for that purpose
(each, a "Paying Agent," which term shall include the Principal Paying Agent).
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3 Applies if this Note is not issued as part of, or in relations to, a Unit.
4 Applies if this Notie is issued as par tof, or in relation to, a Unit.
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
upon presentation and surrender of this Note at the office or agency of the
(3)Applies if this Note is not issued as part of, or in relation to, a Unit.
(4)Applies if this Note is issued as part of, or in relation to, a Unit.
Principal Paying Agent or at the office of any 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, except as
provided on the reverse hereof. If this Note is denominated in U.S. dollars,
any payment of the principal of, premium, if any, and interest on this Note
will be made in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Such payments on this Note will be made either by a check mailed to an address
outside the United States furnished by the payee or, at the option of the
payee and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States if
appropriate wire transfer instructions have been received by the Paying Agent
not less than 15 calendar days prior to the applicable payment date.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of
the full amount payable on this Note at the offices of all Paying Agents would
be illegal or effectively precluded as a result of exchange controls or
similar restrictions, payment on this Note will be made by a paying agency in
the United States, if such paying agency, under applicable law and
regulations, would be able to make such payment. If this Note is denominated
in a Specified Currency other than U.S. dollars, then, except as provided on
the reverse hereof, payment of the principal of and premium, if any, and
interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the payee
and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States.
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.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior 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:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: _____________________________
Authorized Officer
[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior 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
Senior Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, the "Senior
Indenture"), to which Senior 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 Issuer has appointed The Chase Manhattan Bank (formerly known
as Chemical Bank), London Branch, as its principal paying agent for the Notes
(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 Senior Indenture. To the
extent not inconsistent herewith, the terms of the Senior 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 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 holders of the Notes designated for redemption who have filed their
names and addresses with the Principal Paying Agent, 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 Senior Indenture. Notice of redemption to
all other holders of Notes shall be published in the manner set forth in
"Notices" as defined below, once in each of the three successive calendar
weeks, the first publication to be not less than 30 nor more than 60 days
prior to the date set for redemption. In the event of redemption of this Note
in part only, the Principal Paying Agent shall cause Schedule A of this Note
to be endorsed to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of this Note so redeemed, whereupon
the principal amount hereof shall be reduced for all purposes by the amount so
redeemed and noted.
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,
this Note with the form entitled "Option to Elect Repayment" below duly
completed. Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so repaid, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so repaid and
noted.
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 the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without
interest coupons attached (a "Global Bearer Note"). The beneficial owner of
all or a portion of this Note may exchange its interest in this Note upon not
less than 30 days' written notice to the Principal Paying Agent through the
relevant clearing system, in whole, for Notes in bearer form with interest
coupons, if any, attached (the "Definitive Bearer Notes," and, together with
the Global Bearer Notes, the "Bearer Notes") or, if so indicated on the face
of this Note at the beneficial owner's option, in whole or from time to time
in part, for Notes in fully registered form without coupons (the "Registered
Notes"), in each case, 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. Interests in
this Note shall also be exchanged by the Issuer in whole, but not in part, for
Definitive Bearer Notes, which shall be serially numbered, with coupons, if
any, attached or, if indicated on the face of this Note, at the beneficial
owner's option, for Registered Notes, of any authorized denominations if (i)
this Note is accelerated following an Event of Default or (ii) either
Euroclear or Cedel Bank or any other relevant clearing system is closed for
business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so. The Issuer shall give notice to the Principal Paying Agent
promptly following any such acceleration or upon learning of any such closure.
Any exchanges referred to above shall be made at the office of the Principal
Paying Agent, or, in the case of Registered Notes, at the office of the
transfer agent for the Registered Notes in London, which transfer agent will
initially be The Chase Manhattan Bank (formerly known as Chemical Bank),
London Branch, upon compliance with any procedures set forth in, or
established pursuant to, the Senior Indenture; provided, however, that the
Issuer shall not be required (i) to exchange this Note for a period of fifteen
calendar days preceding the first publication of a notice of redemption of all
or any portion hereof or (ii) to exchange any portion of this Note selected
for redemption or surrendered for optional repayment, except that such portion
of this Note may be exchanged for a Registered Note of like tenor; provided
that such Registered Note shall be simultaneously surrendered for redemption
or repayment, as the case may be; and provided, further, that if a Registered
Note is issued in exchange for any portion of this Note after the close of
business at the office of the Principal Paying Agent on any record date
(whether or not a Business Day) for the payment of interest on such Registered
Note and before the opening of business at such office on the relevant
Interest Payment Date, any interest will not be payable on such Interest
Payment Date in respect of such Registered Note, but will be payable on such
Interest Payment Date only to the holder of this Note. Upon exchange of this
Note in whole for a Definitive Bearer Note or Definitive Bearer Notes, or in
whole or in part for a Registered Note or Registered Notes, the Principal
Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the
reduction of the principal amount hereof by an amount equal to the aggregate
principal amount of such Definitive Bearer Note or Definitive Bearer Notes, or
such Registered Note or Registered Notes, whereupon the principal amount
hereof shall be reduced for all purposes by the amount so exchanged and noted.
All such exchanges 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 payable in connection therewith. The date of any Note delivered upon
any exchange of this Note shall be such that no gain or loss of interest
results from such exchange.
All (and not less than all) interests in this Note will be
exchanged for Definitive Bearer Notes in accordance with the procedures set
forth in the following two sentences as soon as practicable after (i) the
first beneficial owner of an interest in this Note exchanges its interest for
a Definitive Bearer Note or (ii) the Issuer gives notice to the Principal
Paying Agent of an acceleration of the Note or the closure of a relevant
clearing system as described above; provided that a common depositary located
outside the United States (the "common depositary") holding this Note for
Morgan Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Cedel Bank, societe anonyme
("Cedel") and/or any other relevant clearing system (including "Societe
Interprofessionelle pour la Compensation des Valeurs Mobilieres ("SICOVAM"))
instructs the Principal Paying Agent regarding the aggregate principal amount
of Definitive Bearer Notes and the denominations of such Definitive Bearer
Notes that must be authenticated and delivered to each relevant clearing
system in exchange for this Note. Thereafter, the Principal Paying Agent,
acting solely in reliance on such instructions, shall, upon surrender to it of
this Note and subject to the conditions in the preceding paragraph,
authenticate and deliver Definitive Bearer Notes in exchange for this Note in
accordance with such instructions and shall cause Schedule A of this Note to
be endorsed to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of this Note. Nothing in this
paragraph shall prevent the further exchange of Definitive Bearer Notes into
Registered Notes.
This Note may be transferred by delivery; provided, however,
that this Note may be transferred only to a common depositary outside the
United States for the Euroclear Operator, Cedel and/or any other relevant
clearing system or to a nominee of such a depositary.
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 Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for this Note, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Trustee and the
Issuer this such Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior 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 Senior 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 Senior 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
Senior 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 calculated on the basis of 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 Senior 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 Senior 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 the Redemption Price, as specified on the
face 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) (the "Amortized Amount")), 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 this Note 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
formula for determining the applicable redemption price will be specified in
the Notice.
If the Issuer shall determine that any payment made outside the
United States by the Issuer or any Paying Agent of principal, premium or
interest due in respect of this Note would, under any present or future laws
or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined below)
(other than such a requirement (a) that would not be applicable to a payment
made by the Issuer or any Paying Agent (i) directly to the beneficial owner or
(ii) to a custodian, nominee or other agent of the beneficial owner, or (b)
that can be satisfied by such custodian, nominee or other agent certifying to
the effect that such beneficial owner is a United States Alien; provided that
in each case referred to in clauses (a)(ii) and (b) payment by such custodian,
nominee or agent to such beneficial owner is not otherwise subject to any such
requirement), the Issuer shall redeem this Note, as a whole, at the Redemption
Price, as specified on the face hereof (except that if this Note is subject
to "Modified Payment upon Acceleration or Redemption," such redemption price
would be calculated on the basis of 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
Amortized Amount), together with accrued interest to the date fixed for
redemption, or, at the election of the Issuer if the conditions of the next
succeeding paragraph are satisfied, pay the additional amounts specified in
such paragraph. The Issuer shall make such determination and election as soon
as practicable, shall promptly notify the Trustee thereof and shall publish
prompt notice thereof (the "Determination Notice") stating the effective date
of such certification, identification or other information reporting
requirements, whether the Issuer will redeem this Note or has elected to pay
the additional amounts specified in the next succeeding paragraph, and (if
applicable) the last date by which the redemption of this Note must take
place, as provided in the next succeeding sentence. If the Issuer redeems
this Note, such redemption shall take place on such date, not later than one
year after the publication of the Determination Notice, as the Issuer shall
elect by notice to the Trustee at least 60 days prior to the date fixed for
redemption. Notice of such redemption of this Note will be given to the
holder of this Note not more than 60 nor less than 30 days prior to the date
fixed for redemption. Such redemption notice shall include a statement as to
the last date by which this Note to be redeemed may be exchanged for
Registered Notes. Notwithstanding the foregoing, the Issuer shall not so
redeem this Note if the Issuer shall subsequently determine, not less than 30
days prior to the date fixed for redemption, that subsequent payments would
not be subject to any such certification, identification or other information
reporting requirement, in which case the Issuer shall publish prompt notice of
such determination and any earlier redemption notice shall be revoked and of
no further effect. The right of the holder of this Note to exchange this Note
for Registered Notes pursuant to the provisions of this paragraph will
terminate at the close of business of the Principal Paying Agent on the
fifteenth day prior to the date fixed for redemption, and no further exchanges
of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements by
the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note for
payment more than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in this Note to be then
due and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this
Note as a whole at any time pursuant to the applicable provisions of the
immediately preceding paragraph and the redemption price of this Note will not
be reduced for applicable withholding taxes. If the Issuer elects to pay
additional amounts pursuant to this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
Issuer will redeem this Note as a whole, pursuant to the applicable provisions
of the immediately preceding paragraph.
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 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 Final Redemption Price or the Redemption Price shall be
determined by the Calculation Agent not later than the close of business on
the date that is two (2) London Banking Days prior to the Maturity Date or
date of redemption as the case may be (the "Determination Date"). For the
purpose of determining the Final Redemption Price or the Redemption Price
LIBOR shall be determined as follows:
(i) As of the Determination Date, the Calculation Agent
will determine (a) if "LIBOR Reuters" is specified as the Reporting
Service on the face hereof, the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page (as defined below) by its
terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Index Currency for the period of
the Index Maturity specified on the face hereof, commencing on the
second London Banking Day immediately following such Determination
Date, which appear on the Designated LIBOR Page at approximately 11:00
a.m., London time, on such Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is
specified as the Reporting Service on the face hereof, the rate for
deposits in the Index Currency for the period of the Index Maturity,
each as designated on the face hereof, commencing on the second London
Banking Day following such Determination Date (or, if pounds sterling
is the Index Currency, commencing on such Determination Date), that
appears on the Designated LIBOR Page at approximately 11:00 a.m.,
London time, on such Determination Date. If fewer than two offered
rates appear (if "LIBOR Reuters" is specified as the Reporting Service
on the face hereof and calculation of LIBOR is based on the arithmetic
mean of the offered rates) or if no rate appears (if the Reporting
Service on the face hereof specifies either (x) "LIBOR Reuters" and
the Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), LIBOR in respect of that Determination Date
will be determined as if the parties had specified the rate described
in (ii) below.
(ii) With respect to a Determination Date on which
fewer than two offered rates appear (if "LIBOR Reuters" is specified
as the Reporting Service on the face hereof and calculation of LIBOR
is based on the arithmetic mean of the offered rates) or no rate
appears (if the Reporting Service on the face hereof specifies either
(x) "LIBOR Reuters" and the Designated LIBOR Page by its terms
provides only for a single rate or (y) "LIBOR Telerate"), the
Calculation Agent will request the principal London offices of each of
four major reference banks in the London interbank market, as selected
by the Calculation Agent (after consultation with the Issuer), to
provide the Calculation Agent with its offered quotations for deposits
in the Index Currency for the period of the Index Maturity specified
on the face hereof, commencing on the second London Banking Day
immediately following such Determination Date (or, if pounds sterling
is the Index Currency, commencing on such Determination Date), to
prime banks in the London interbank market at approximately 11:00
a.m., London time, on such Determination Date and in a principal
amount equal to an amount of not less than U.S.$1 million (or the
equivalent in the Index Currency if the Index Currency is not the U.S.
dollar) that is representative of a single transaction in such Index
Currency in such market at such time. If at least two such quotations
are provided, LIBOR determined on such Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such Determination Date will be the
arithmetic mean of rates quoted at approximately 11:00 a.m. (or such
other time specified on the face hereof), in the applicable principal
financial center for the country of the Index Currency on such
Determination Date, by three major banks in such principal financial
center selected by the Calculation Agent (after consultation with the
Issuer) on such Determination Date for loans in the Index Currency to
leading European banks, for the period of the Index Maturity specified
on the face hereof commencing on the second London Banking Day
immediately following such Determination Date (or, if pounds sterling
is the Index Currency, commencing on such Determination Date) and in a
principal amount of not less than U.S.$1 million (or the equivalent in
the Index Currency if the Index Currency is not the U.S. dollar) that
is representative of a single transaction in such Index Currency in
such market at such time. "Index Currency" means the currency
(including composite currencies) specified as Index Currency on the
face hereof. If no such currency is specified as Index Currency on
the face hereof, the Index Currency shall be U.S. dollars. "Designated
LIBOR Page" means either (a) if "LIBOR Reuters" is designated as the
Reporting Service on the face hereof, the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency, or
(b) if "LIBOR Telerate" is designated as the Reporting Service on the
face hereof, the display on the Dow Jones Telerate Service for the
purpose of displaying the London interbank rates of major banks for
the applicable Index Currency. If neither LIBOR Reuters nor LIBOR
Telerate is specified as the Reporting Service on the face hereof,
LIBOR for the applicable Index Currency will be determined as if LIBOR
Telerate (and, if the U.S. dollar is the Index Currency, Page 3750)
had been specified.
The Senior 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 Senior 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.
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 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; provided that if U.S. dollars is the Chosen Currency,
payments shall be made in accordance with the provisions for payments in U.S.
dollars on the face hereof.
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. 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 outside the United States (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 Senior 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 holder of this
Note.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note 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 Senior 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 "London Banking Day" means any day on which
dealings in deposits in the Index Currency (as defined herein) are
transacted in the London interbank market.
(c) 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;
(d) the term "Notices" refers to notices to the holders of the
Notes 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;
(e) 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
(f) 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
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
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
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(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: __________________________________ __________________________________
[SCHEDULE A(5)]
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is .
The following (A) exchanges of (i) portions of this Note for Definitive
Bearer Notes or Registered Notes and (ii) portions of a Temporary Global
Bearer Note for an interest in this Note or (B) (x) redemptions at the
option of the Issuer or (y) repayments at the option of the holder have
been made:
[SCHEDULE A-1](6)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")](7), (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")](8) for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
----------
(6) This Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
(7) Applies only if this Note is attached to a Unit.
(8) Applies only if this Note has been separated from a Unit.
[FORM OF FACE OF SECURITY]
PERMANENT GLOBAL SENIOR BULL NOTE
BEARER BEARER
No. PGFX
[COMMERCIAL PAPER ISSUED IN ACCORDANCE WITH REGULATIONS MADE
UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT 1987.](1)
[A [SHORTER TERM/LONGER TERM] DEBT SECURITY ISSUED IN ACCORDANCE
WITH REGULATIONS MADE UNDER SECTION 4 OF THE UNITED KINGDOM BANKING ACT
1987.](2)
ANY UNITED STATES PERSON WHO HOLDS THIS OBLIGATION WILL BE
SUBJECT TO LIMITATIONS UNDER THE UNITED STATES INCOME TAX LAWS, INCLUDING THE
LIMITATIONS PROVIDED IN SECTIONS 165(j) AND 1287(a) OF THE UNITED STATES
INTERNAL REVENUE CODE.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE FOR DEFINITIVE BEARER
NOTES OR IN WHOLE OR IN PART FOR REGISTERED NOTES, THIS GLOBAL NOTE MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF THE DEPOSITARY
OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR ANOTHER NOMINEE OF THE
DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY
OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
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.
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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.
(2) Applies only if this Note is denominated in pounds sterling and matures
more than one year from and including the Original Issue Date.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SENIOR GLOBAL MEDIUM-TERM NOTE, SERIES [D/E]
(Bull Note)
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 bearer, upon surrender hereof, the
Final Redemption Price as specified in [Schedule A hereto](3) [Schedule A-1
hereto](4)" 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 Final Redemption Price is
paid or duly made available for payment (except as provided below), in
arrears on the Interest Payment Dates specified above, and at maturity (or
on any redemption or repayment date); provided, however, that if the
Interest Accrual Date occurs fifteen days or less prior to the first
Interest Payment Date occurring after the Interest Accrual Date, interest
payments will commence on the second Interest Payment Date succeeding the
Interest Accrual Date.
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 Final Redemption
Price is 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 holder of this Note at the office or agency of the Principal
Paying Agent (this and certain other capitalized terms used herein are defined
on the reverse of this Note) or at the office or agency of such other paying
agents outside the United States as the Issuer may determine for that purpose
(each, a "Paying Agent," which term shall include the Principal Paying Agent).
----------
3 Applies if this Note is not issued as part of, or in relations to, a Unit.
4 Applies if this Notie is issued as par tof, or in relation to, a Unit.
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
upon presentation and surrender of this Note at the office or agency of the
(3)Applies if this Note is not issued as part of, or in relation to, a Unit.
(4)Applies if this Note is issued as part of, or in relation to, a Unit.
Principal Paying Agent or at the office of any 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, except as
provided on the reverse hereof. If this Note is denominated in U.S. dollars,
any payment of the principal of, premium, if any, and interest on this Note
will be made in such coin or currency of the United States of America as at
the time of payment is legal tender for payment of public and private debts.
Such payments on this Note will be made either by a check mailed to an address
outside the United States furnished by the payee or, at the option of the
payee and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States if
appropriate wire transfer instructions have been received by the Paying Agent
not less than 15 calendar days prior to the applicable payment date.
Notwithstanding the foregoing, in the event that payment in U.S. dollars of
the full amount payable on this Note at the offices of all Paying Agents would
be illegal or effectively precluded as a result of exchange controls or
similar restrictions, payment on this Note will be made by a paying agency in
the United States, if such paying agency, under applicable law and
regulations, would be able to make such payment. If this Note is denominated
in a Specified Currency other than U.S. dollars, then, except as provided on
the reverse hereof, payment of the principal of and premium, if any, and
interest on this Note will be made in such Specified Currency either by a
check drawn on a bank outside the United States or, at the option of the payee
and subject to applicable laws and regulations and the procedures of the
Paying Agent, by wire transfer of immediately available funds to an account
maintained by the payee with a bank located outside the United States.
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.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Senior 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:
TRUSTEE'S CERTIFICATE
OF AUTHENTICATION
This is one of the Notes referred
to in the within-mentioned
Senior Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By: _____________________________
Authorized Officer
[REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Senior 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
Senior Indenture, dated as of April 15, 1989, as supplemented by a First
Supplemental Senior Indenture dated as of May 15, 1991 and a Second
Supplemental Senior Indenture dated as of April 15, 1996 between Morgan
Stanley Group Inc. (as predecessor of the Issuer) and The Chase Manhattan Bank
(formerly known as Chemical Bank), as Trustee (the "Trustee," which term
includes any successor trustee under the Senior Indenture) as further
supplemented by a Third Supplemental Senior Indenture dated as of June 1, 1997
between the Issuer and the Trustee (as so supplemented, the "Senior
Indenture"), to which Senior 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 Issuer has appointed The Chase Manhattan Bank (formerly known
as Chemical Bank), London Branch, as its principal paying agent for the Notes
(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 Senior Indenture. To the
extent not inconsistent herewith, the terms of the Senior 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 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 holders of the Notes designated for redemption who have filed their
names and addresses with the Principal Paying Agent, 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 Senior Indenture. Notice of redemption to
all other holders of Notes shall be published in the manner set forth in
"Notices" as defined below, once in each of the three successive calendar
weeks, the first publication to be not less than 30 nor more than 60 days
prior to the date set for redemption. In the event of redemption of this Note
in part only, the Principal Paying Agent shall cause Schedule A of this Note
to be endorsed to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of this Note so redeemed, whereupon
the principal amount hereof shall be reduced for all purposes by the amount so
redeemed and noted.
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,
this Note with the form entitled "Option to Elect Repayment" below duly
completed. Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, the
Principal Paying Agent shall cause Schedule A of this Note to be endorsed to
reflect the reduction of its principal amount by an amount equal to the
aggregate principal amount of this Note so repaid, whereupon the principal
amount hereof shall be reduced for all purposes by the amount so repaid and
noted.
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 the obligations of the Issuer hereunder are
direct, unsecured obligations of the Issuer and rank without preference or
priority among themselves and pari passu with all other existing and future
unsecured and unsubordinated indebtedness of the Issuer, subject to certain
statutory exceptions in the event of liquidation upon insolvency.
This Note is issued in permanent global bearer form without
interest coupons attached (a "Global Bearer Note"). The beneficial owner of
all or a portion of this Note may exchange its interest in this Note upon not
less than 30 days' written notice to the Principal Paying Agent through the
relevant clearing system, in whole, for Notes in bearer form with interest
coupons, if any, attached (the "Definitive Bearer Notes," and, together with
the Global Bearer Notes, the "Bearer Notes") or, if so indicated on the face
of this Note at the beneficial owner's option, in whole or from time to time
in part, for Notes in fully registered form without coupons (the "Registered
Notes"), in each case, 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. Interests in
this Note shall also be exchanged by the Issuer in whole, but not in part, for
Definitive Bearer Notes, which shall be serially numbered, with coupons, if
any, attached or, if indicated on the face of this Note, at the beneficial
owner's option, for Registered Notes, of any authorized denominations if (i)
this Note is accelerated following an Event of Default or (ii) either
Euroclear or Cedel Bank or any other relevant clearing system is closed for
business for a continuous period of fourteen days (other than by reason of
public holidays) or announces an intention to cease business permanently or in
fact does so. The Issuer shall give notice to the Principal Paying Agent
promptly following any such acceleration or upon learning of any such closure.
Any exchanges referred to above shall be made at the office of the Principal
Paying Agent, or, in the case of Registered Notes, at the office of the
transfer agent for the Registered Notes in London, which transfer agent will
initially be The Chase Manhattan Bank (formerly known as Chemical Bank),
London Branch, upon compliance with any procedures set forth in, or
established pursuant to, the Senior Indenture; provided, however, that the
Issuer shall not be required (i) to exchange this Note for a period of fifteen
calendar days preceding the first publication of a notice of redemption of all
or any portion hereof or (ii) to exchange any portion of this Note selected
for redemption or surrendered for optional repayment, except that such portion
of this Note may be exchanged for a Registered Note of like tenor; provided
that such Registered Note shall be simultaneously surrendered for redemption
or repayment, as the case may be; and provided, further, that if a Registered
Note is issued in exchange for any portion of this Note after the close of
business at the office of the Principal Paying Agent on any record date
(whether or not a Business Day) for the payment of interest on such Registered
Note and before the opening of business at such office on the relevant
Interest Payment Date, any interest will not be payable on such Interest
Payment Date in respect of such Registered Note, but will be payable on such
Interest Payment Date only to the holder of this Note. Upon exchange of this
Note in whole for a Definitive Bearer Note or Definitive Bearer Notes, or in
whole or in part for a Registered Note or Registered Notes, the Principal
Paying Agent shall cause Schedule A of this Note to be endorsed to reflect the
reduction of the principal amount hereof by an amount equal to the aggregate
principal amount of such Definitive Bearer Note or Definitive Bearer Notes, or
such Registered Note or Registered Notes, whereupon the principal amount
hereof shall be reduced for all purposes by the amount so exchanged and noted.
All such exchanges 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 payable in connection therewith. The date of any Note delivered upon
any exchange of this Note shall be such that no gain or loss of interest
results from such exchange.
All (and not less than all) interests in this Note will be
exchanged for Definitive Bearer Notes in accordance with the procedures set
forth in the following two sentences as soon as practicable after (i) the
first beneficial owner of an interest in this Note exchanges its interest for
a Definitive Bearer Note or (ii) the Issuer gives notice to the Principal
Paying Agent of an acceleration of the Note or the closure of a relevant
clearing system as described above; provided that a common depositary located
outside the United States (the "common depositary") holding this Note for
Morgan Guaranty Trust Company of New York, Brussels office, as operator of the
Euroclear System (the "Euroclear Operator"), Cedel Bank, societe anonyme
("Cedel") and/or any other relevant clearing system (including "Societe
Interprofessionelle pour la Compensation des Valeurs Mobilieres ("SICOVAM"))
instructs the Principal Paying Agent regarding the aggregate principal amount
of Definitive Bearer Notes and the denominations of such Definitive Bearer
Notes that must be authenticated and delivered to each relevant clearing
system in exchange for this Note. Thereafter, the Principal Paying Agent,
acting solely in reliance on such instructions, shall, upon surrender to it of
this Note and subject to the conditions in the preceding paragraph,
authenticate and deliver Definitive Bearer Notes in exchange for this Note in
accordance with such instructions and shall cause Schedule A of this Note to
be endorsed to reflect the reduction of its principal amount by an amount
equal to the aggregate principal amount of this Note. Nothing in this
paragraph shall prevent the further exchange of Definitive Bearer Notes into
Registered Notes.
This Note may be transferred by delivery; provided, however,
that this Note may be transferred only to a common depositary outside the
United States for the Euroclear Operator, Cedel and/or any other relevant
clearing system or to a nominee of such a depositary.
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 Trustee, a new Note of like tenor will be issued by the
Issuer in exchange for this Note, but, in the case of any destroyed or lost or
stolen Note, only upon receipt of evidence satisfactory to the Trustee and the
Issuer this such Note was destroyed or lost or stolen and, if required, upon
receipt also of indemnity satisfactory to each of them. All expenses and
reasonable charges associated with procuring such indemnity and with the
preparation, authentication and delivery of a new Note shall be borne by the
owner of the Note mutilated, defaced, destroyed, lost or stolen.
The Senior Indenture provides that, (a) if an Event of Default
(as defined in the Senior Indenture) due to the default in payment of
principal of, premium, if any, or interest on, any series of debt securities
issued under the Senior Indenture, including the series of Senior 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 Senior 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 Senior 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
Senior 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 calculated on the basis of 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 Senior 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 Senior 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 the Redemption Price, as specified on the
face 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) (the "Amortized Amount")), 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 this Note 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
formula for determining the applicable redemption price will be specified in
the Notice.
If the Issuer shall determine that any payment made outside the
United States by the Issuer or any Paying Agent of principal, premium or
interest due in respect of this Note would, under any present or future laws
or regulations of the United States, be subject to any certification,
identification or other information reporting requirement of any kind, the
effect of which is the disclosure to the Issuer, any Paying Agent or any
governmental authority of the nationality, residence or identity of a
beneficial owner of this Note who is a United States Alien (as defined below)
(other than such a requirement (a) that would not be applicable to a payment
made by the Issuer or any Paying Agent (i) directly to the beneficial owner or
(ii) to a custodian, nominee or other agent of the beneficial owner, or (b)
that can be satisfied by such custodian, nominee or other agent certifying to
the effect that such beneficial owner is a United States Alien; provided that
in each case referred to in clauses (a)(ii) and (b) payment by such custodian,
nominee or agent to such beneficial owner is not otherwise subject to any such
requirement), the Issuer shall redeem this Note, as a whole, at the Redemption
Price, as specified on the face hereof (except that if this Note is subject
to "Modified Payment upon Acceleration or Redemption," such redemption price
would be calculated on the basis of 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
Amortized Amount), together with accrued interest to the date fixed for
redemption, or, at the election of the Issuer if the conditions of the next
succeeding paragraph are satisfied, pay the additional amounts specified in
such paragraph. The Issuer shall make such determination and election as soon
as practicable, shall promptly notify the Trustee thereof and shall publish
prompt notice thereof (the "Determination Notice") stating the effective date
of such certification, identification or other information reporting
requirements, whether the Issuer will redeem this Note or has elected to pay
the additional amounts specified in the next succeeding paragraph, and (if
applicable) the last date by which the redemption of this Note must take
place, as provided in the next succeeding sentence. If the Issuer redeems
this Note, such redemption shall take place on such date, not later than one
year after the publication of the Determination Notice, as the Issuer shall
elect by notice to the Trustee at least 60 days prior to the date fixed for
redemption. Notice of such redemption of this Note will be given to the
holder of this Note not more than 60 nor less than 30 days prior to the date
fixed for redemption. Such redemption notice shall include a statement as to
the last date by which this Note to be redeemed may be exchanged for
Registered Notes. Notwithstanding the foregoing, the Issuer shall not so
redeem this Note if the Issuer shall subsequently determine, not less than 30
days prior to the date fixed for redemption, that subsequent payments would
not be subject to any such certification, identification or other information
reporting requirement, in which case the Issuer shall publish prompt notice of
such determination and any earlier redemption notice shall be revoked and of
no further effect. The right of the holder of this Note to exchange this Note
for Registered Notes pursuant to the provisions of this paragraph will
terminate at the close of business of the Principal Paying Agent on the
fifteenth day prior to the date fixed for redemption, and no further exchanges
of this Note for Registered Notes shall be permitted.
If and so long as the certification, identification or other
information reporting requirements referred to in the preceding paragraph
would be fully satisfied by payment of a backup withholding tax or similar
charge, the Issuer may elect by notice to the Trustee to pay as additional
amounts such amounts as may be necessary so that every net payment made
outside the United States following the effective date of such requirements by
the Issuer or any Paying Agent of principal, premium or interest due in
respect of this Note of which the beneficial owner is a United States Alien
(but without any requirement that the nationality, residence or identity of
such beneficial owner be disclosed to the Issuer, any Paying Agent or any
governmental authority, with respect to the payment of such additional
amounts), after deduction or withholding for or on account of such backup
withholding tax or similar charge (other than a backup withholding tax or
similar charge that (i) would not be applicable in the circumstances referred
to in the second parenthetical clause of the first sentence of the preceding
paragraph, or (ii) is imposed as a result of presentation of this Note for
payment more than 15 days after the date on which such payment becomes due and
payable or on which payment thereof is duly provided for, whichever occurs
later), will not be less than the amount provided for in this Note to be then
due and payable. In the event the Issuer elects to pay any additional amounts
pursuant to this paragraph, the Issuer shall have the right to redeem this
Note as a whole at any time pursuant to the applicable provisions of the
immediately preceding paragraph and the redemption price of this Note will not
be reduced for applicable withholding taxes. If the Issuer elects to pay
additional amounts pursuant to this paragraph and the condition specified in
the first sentence of this paragraph should no longer be satisfied, then the
Issuer will redeem this Note as a whole, pursuant to the applicable provisions
of the immediately preceding paragraph.
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 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 Final Redemption Price or the Redemption Price shall be
determined by the Calculation Agent not later than the close of business on
the date that is two (2) London Banking Days prior to the Maturity Date or
date of redemption as the case may be (the "Determination Date"). For the
purpose of determining the Final Redemption Price or the Redemption Price
LIBOR shall be determined as follows:
(i) As of the Determination Date, the Calculation Agent
will determine (a) if "LIBOR Reuters" is specified as the Reporting
Service on the face hereof, the arithmetic mean of the offered rates
(unless the specified Designated LIBOR Page (as defined below) by its
terms provides only for a single rate, in which case such single rate
shall be used) for deposits in the Index Currency for the period of
the Index Maturity specified on the face hereof, commencing on the
second London Banking Day immediately following such Determination
Date, which appear on the Designated LIBOR Page at approximately 11:00
a.m., London time, on such Determination Date, if at least two such
offered rates appear (unless, as aforesaid, only a single rate is
required) on such Designated LIBOR Page, or (b) if "LIBOR Telerate" is
specified as the Reporting Service on the face hereof, the rate for
deposits in the Index Currency for the period of the Index Maturity,
each as designated on the face hereof, commencing on the second London
Banking Day following such Determination Date (or, if pounds sterling
is the Index Currency, commencing on such Determination Date), that
appears on the Designated LIBOR Page at approximately 11:00 a.m.,
London time, on such Determination Date. If fewer than two offered
rates appear (if "LIBOR Reuters" is specified as the Reporting Service
on the face hereof and calculation of LIBOR is based on the arithmetic
mean of the offered rates) or if no rate appears (if the Reporting
Service on the face hereof specifies either (x) "LIBOR Reuters" and
the Designated LIBOR Page by its terms provides only for a single rate
or (y) "LIBOR Telerate"), LIBOR in respect of that Determination Date
will be determined as if the parties had specified the rate described
in (ii) below.
(ii) With respect to a Determination Date on which
fewer than two offered rates appear (if "LIBOR Reuters" is specified
as the Reporting Service on the face hereof and calculation of LIBOR
is based on the arithmetic mean of the offered rates) or no rate
appears (if the Reporting Service on the face hereof specifies either
(x) "LIBOR Reuters" and the Designated LIBOR Page by its terms
provides only for a single rate or (y) "LIBOR Telerate"), the
Calculation Agent will request the principal London offices of each of
four major reference banks in the London interbank market, as selected
by the Calculation Agent (after consultation with the Issuer), to
provide the Calculation Agent with its offered quotations for deposits
in the Index Currency for the period of the Index Maturity specified
on the face hereof, commencing on the second London Banking Day
immediately following such Determination Date (or, if pounds sterling
is the Index Currency, commencing on such Determination Date), to
prime banks in the London interbank market at approximately 11:00
a.m., London time, on such Determination Date and in a principal
amount equal to an amount of not less than U.S.$1 million (or the
equivalent in the Index Currency if the Index Currency is not the U.S.
dollar) that is representative of a single transaction in such Index
Currency in such market at such time. If at least two such quotations
are provided, LIBOR determined on such Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such Determination Date will be the
arithmetic mean of rates quoted at approximately 11:00 a.m. (or such
other time specified on the face hereof), in the applicable principal
financial center for the country of the Index Currency on such
Determination Date, by three major banks in such principal financial
center selected by the Calculation Agent (after consultation with the
Issuer) on such Determination Date for loans in the Index Currency to
leading European banks, for the period of the Index Maturity specified
on the face hereof commencing on the second London Banking Day
immediately following such Determination Date (or, if pounds sterling
is the Index Currency, commencing on such Determination Date) and in a
principal amount of not less than U.S.$1 million (or the equivalent in
the Index Currency if the Index Currency is not the U.S. dollar) that
is representative of a single transaction in such Index Currency in
such market at such time. "Index Currency" means the currency
(including composite currencies) specified as Index Currency on the
face hereof. If no such currency is specified as Index Currency on
the face hereof, the Index Currency shall be U.S. dollars. "Designated
LIBOR Page" means either (a) if "LIBOR Reuters" is designated as the
Reporting Service on the face hereof, the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable Index Currency, or
(b) if "LIBOR Telerate" is designated as the Reporting Service on the
face hereof, the display on the Dow Jones Telerate Service for the
purpose of displaying the London interbank rates of major banks for
the applicable Index Currency. If neither LIBOR Reuters nor LIBOR
Telerate is specified as the Reporting Service on the face hereof,
LIBOR for the applicable Index Currency will be determined as if LIBOR
Telerate (and, if the U.S. dollar is the Index Currency, Page 3750)
had been specified.
The Senior 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 Senior 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.
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 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; provided that if U.S. dollars is the Chosen Currency,
payments shall be made in accordance with the provisions for payments in U.S.
dollars on the face hereof.
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. 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 outside the United States (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 Senior 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 holder of this
Note.
The Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder of this Note 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 Senior 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 "London Banking Day" means any day on which
dealings in deposits in the Index Currency (as defined herein) are
transacted in the London interbank market.
(c) 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;
(d) the term "Notices" refers to notices to the holders of the
Notes 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;
(e) 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
(f) 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
Senior Indenture and not otherwise defined herein shall have the meanings
assigned to them in the Senior Indenture.
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
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(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: __________________________________ __________________________________
[SCHEDULE A(5)]
EXCHANGES FOR DEFINITIVE BEARER NOTES, DEFINITIVE
REGISTERED NOTES AND FROM TEMPORARY GLOBAL BEARER NOTE,
REDEMPTIONS AND REPAYMENTS
The initial principal amount of this Note is .
The following (A) exchanges of (i) portions of this Note for Definitive
Bearer Notes or Registered Notes and (ii) portions of a Temporary Global
Bearer Note for an interest in this Note or (B) (x) redemptions at the
option of the Issuer or (y) repayments at the option of the holder have
been made:
[SCHEDULE A-1](6)
PERMANENT GLOBAL BEARER NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. The
following (A) exchanges of the principal amount of Notes indicated below for
the same principal amount of Notes to be represented by (i) Definitive Bearer
Notes or (ii) Definitive Registered Notes or [(iii) a Global Bearer Note that
has been separated from a Unit (a "Separated Note")](7), (B) exchanges of the
principal amount of Notes that had been represented by (i) a Temporary Global
Bearer Note [or (ii) a Global Bearer Note that is part of a Unit (an "Attached
Unit Note")](8) for an interest in this Note and (C) reductions of the
principal amount of this Note as a result of (i) cancellation upon the
application of such amount to the settlement of Purchase Contracts or the
exercise of Universal Warrants (ii) redemption at the option of the Issuer or
(iii) repayments at the option of the Holder have been made:
----------
(6) This Schedule A needed only if this Note is issued as part of, or in
relation to, a Unit.
(7) Applies only if this Note is attached to a Unit.
(8) Applies only if this Note has been separated from a Unit.