EXHIBIT 4-p
[FORM OF FACE OF SECURITY]
Floating Rate Subordinated Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP:(1)
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.(1)
------------
(1) Applies only if this Note is a Registered Global Security.
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (together with its successors and assigns, the "Issuer"), for
value received, hereby promises to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent redeemed or repaid
prior to the Maturity Date) and to pay interest thereon, from and including
the Interest Accrual Date specified above at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above, and thereafter at a rate per annum determined in accordance
with the provisions specified on the reverse hereof until the principal hereof
is paid or duly made available for payment. The Issuer will pay interest in
arrears monthly, quarterly, semiannually or annually as specified above as the
Interest Payment Period on each Interest Payment Date (as specified above),
commencing with the first Interest Payment Date next succeeding the Interest
Accrual Date specified above, and on the Maturity Date (or any redemption or
repayment date); provided, however, that if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date succeeding the Interest Accrual Date to the registered holder of this
Note on the Record Date with respect to such second Interest Payment Date; and
provided, further, that if an Interest Payment Date (other than the Maturity
Date or redemption or repayment date) would fall on a day that is not a
Business Day, as defined on the reverse hereof, such Interest Payment Date
shall be the following day that is a Business Day, except that if the Base
Rate specified above is LIBOR and such next Business Day falls in the next
calendar month, such Interest Payment Date shall be the immediately preceding
day that is a Business Day; and provided, further, that if the Maturity Date
or redemption or repayment date would fall on a day that is not a Business
Day, such Maturity Date or redemption or repayment date shall be on the
following day that is a Business Day and no interest shall accrue for the
period from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most
recent date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from and including the Interest
Accrual Date, until but excluding the date the principal hereof has been paid
or duly made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, subject to
certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or
not a Business Day) (each such date a "Record Date"); provided, however, that
interest payable on the Maturity Date (or any redemption or repayment date)
will be payable to the person to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date),
unless this Note is denominated in a Specified Currency other than U.S.
dollars and is to be paid in whole or in part in such Specified Currency,
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at such other paying agency as the Issuer may determine, in U.S.
dollars. U.S. dollar payments of interest, other than interest due at
maturity or any date of redemption or repayment, will be made by U.S.
dollar check mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes having the same Interest
Payment Date, the interest on which is payable in U.S. dollars, shall be
entitled to receive payments of interest, other than interest due at
maturity or any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other
than U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
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
surrender of this Note at the office or agency referred to in the preceding
paragraph.
If so indicated on the face hereof, the holder of this Note,
if denominated in a Specified Currency other than U.S. dollars, may elect
to receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or on
any redemption or repayment date, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the
Paying Agent as to all or a portion of payments on this Note at least five
Business Days prior to such Record Date or at least ten days prior to the
Maturity Date or any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments
of principal of and any premium and interest on this Note, if denominated
in a Specified Currency other than U.S. dollars, in U.S. dollars, the
Exchange Rate Agent will convert such payments into U.S. dollars. In the
event of such an election, payment in respect of this Note will be based
upon the exchange rate as determined by the Exchange Rate Agent based on
the highest bid quotation in The City of New York received by such Exchange
Rate Agent at approximately 11:00 a.m., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent
unless such Exchange Rate Agent is an affiliate of the Issuer), for the
purchase by the quoting dealer of U.S. dollars for the Specified Currency
for settlement on such payment date in the amount of the Specified Currency
payable in the absence of such an election to such holder and at which the
applicable dealer commits to execute a contract. If such bid quotations
are not available, such payment will be made in the Specified Currency.
All currency exchange costs will be borne by the holder of this Note by
deductions from such payments.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place, including,
without limitation, the provisions relating to the subordination of this Note
to the Issuer's Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit under the
Subordinated Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
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
Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Authentication Agent
By:_____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated
Global Medium-Term Notes, Series C, having maturities more than nine months
from the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Subordinated Indenture, dated as of April 15, 1989, as supplemented
by a First Supplemental Subordinated Indenture dated as of May 15, 1991 and
a Second Supplemental Subordinated Indenture dated as of April 15, 1996
between Morgan Stanley Group Inc. (as predecessor of the Issuer) and The
First National Bank of Chicago, as Trustee (the "Trustee," which term
includes any successor trustee under the Subordinated Indenture) as further
supplemented by a Third Supplemental Subordinated Indenture dated as of
June 1, 1997 between the Issuer and the Trustee (as so supplemented, the
"Subordinated Indenture"), to which Subordinated Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities of the
Issuer, the Trustee and holders of the Notes and the terms upon which the
Notes are, and are to be, authenticated and delivered. The Trustee has
appointed The Chase Manhattan Bank (formerly known as Chemical Bank) as
Authenticating Agent (the "Authenticating Agent," which term includes any
successor authenticating agent appointed by the Trustee) with respect to
the Notes, and the Issuer has appointed The Chase Manhattan Bank (formerly
known as Chemical Bank) at its corporate trust office in The City of New
York as the paying agent (the "Paying Agent," which term includes any
additional or successor Paying Agent appointed by the Issuer) with respect
to the Notes. The terms of individual Notes may vary with respect to
interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Subordinated Indenture. To the extent
not inconsistent herewith, the terms of the Subordinated Indenture are
hereby incorporated by reference herein.
Unless otherwise 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, will not be redeemable or subject to repayment at the option of
the holder prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Maturity Date. If so indicated on
the face of this Note, this Note may be redeemed in whole or in part at the
option of the Issuer on or after the Initial Redemption Date specified on
the face hereof on the terms set forth on the face hereof, together with
interest accrued and unpaid hereon to the date of redemption. 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. Notice of
redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Subordinated Indenture. In the event of redemption of this Note in part
only, a new Note or Notes for the amount of the unredeemed portion hereof
shall be issued in the name of the holder hereof upon the cancellation
hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the holder prior to
the Maturity Date. 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. For this Note to be repaid at the option
of the holder hereof, the Paying Agent must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, at least 15 but
not more than 30 days prior to the date of repayment, (i) this Note with
the form entitled "Option to Elect Repayment" below duly completed or (ii)
a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States
setting forth the name of the holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of this Note's
tenor and terms, the principal amount hereof to be repaid, a statement that
the option to elect repayment is being exercised thereby and a guarantee
that this Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Paying Agent not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base
Rate shown on the face hereof based on the Index Maturity, if any, shown on
the face hereof (i) plus or minus the Spread, if any, and/or (ii)
multiplied by the Spread Multiplier, if any, specified on the face hereof.
Commencing with the Initial Interest Reset Date specified on the face
hereof, the rate at which interest on this Note is payable shall be reset
as of each Interest Reset Date (as used herein, the term "Interest Reset
Date" shall include the Initial Interest Reset Date). The determination of
the rate of interest at which this Note will be reset on any Interest Reset
Date shall be made on the Interest Determination Date (as defined below)
pertaining to such Interest Reset Date. The Interest Reset Dates will be
the Interest Reset Dates specified on the face hereof; provided, however,
that (a) the interest rate in effect for the period from the Interest
Accrual Date to the Initial Interest Reset Date will be the Initial
Interest Rate and (b) unless otherwise specified on the face hereof, the
interest rate in effect for the ten calendar days immediately prior to
maturity, redemption or repayment will be that in effect on the tenth
calendar day preceding such maturity, redemption or repayment date. If any
Interest Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next succeeding day that
is a Business Day, except that if the Base Rate specified on the face
hereof is LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the next preceding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, 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 and (i) if this Note bears interest calculated by
reference to LIBOR that is also a London Banking Day, (ii) 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, (iii) if this Note is denominated in Australian
dollars, in Sydney and (iv) if this Note is denominated in ECUs, that is
not a non-ECU clearing day, as determined by the ECU Banking Association in
Paris.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD
Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate
will be the second Business Day next preceding such Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to LIBOR shall be the second
London Banking Day preceding such Interest Reset Date, except that the
Interest Determination Date pertaining to an Interest Reset Date for a
LIBOR Note for which the Index Currency is pounds sterling will be such
Interest Reset Date. As used herein, "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. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to the Treasury Rate shall be the day of the week in which
such Interest Reset Date falls on which Treasury bills normally would be
auctioned; provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date (or, with respect to any principal amount to be
redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on
such date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)"), under the heading "CDs (Secondary
Market)," or, if not so published by 9:00 a.m., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof
as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 p.m. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Certificates of
Deposit." If neither of such rates is published by 3:00 p.m., New York City
time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to
on the face hereof and will be the arithmetic mean of the secondary market
offered rates as of 10:00 a.m., New York City time, on such Interest
Determination Date for certificates of deposit in an amount that is
representative of a single transaction at that time with a remaining
maturity closest to the Index Maturity specified on the face hereof of
three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money center
banks; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate in effect for the applicable period will be the same as the CD Rate
for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein)
of the rate on such date for commercial paper having the Index Maturity
specified on the face hereof, as such rate shall be published in H.15(519)
under the heading "Commercial Paper," or if not so published prior to 9:00
a.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Commercial Paper Rate shall be the Money
Market Yield of the rate on such Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper." If neither of
such rates is published by 3:00 p.m., New York City time, on such
Calculation Date, then the Commercial Paper Rate shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00 a.m., New
York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the Index Maturity specified on
the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Commercial Paper Rate in
effect for the applicable period will be the same as the Commercial Paper
Rate for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for
commercial paper quoted on a bank discount basis and expressed as a decimal
and "M" refers to the actual number of days in the Index Maturity specified on
the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the rate on such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)," or,
if not so published by 9:00 a.m., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Federal Funds Rate
will be the rate on such Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate." If
neither of such rates is published by 3:00 p.m., New York City time, on
such Calculation Date, the Federal Funds Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be
the arithmetic mean of the rates for the last transaction in overnight
Federal funds as of 11:00 a.m., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Rate in effect for the applicable period will be the same as
the Federal Funds Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the
face hereof is LIBOR, LIBOR with respect to this Note shall be determined
on each Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent 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 London interbank market 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 Interest
Determination Date, which appear on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on such Interest 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 Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on such Interest 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 Interest Determination
Date will be determined as if the parties had specified the rate described
in (ii) below.
(ii) With respect to an Interest 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 Interest
Determination Date (or, if pounds sterling is the Index Currency,
commencing on such Interest Determination Date), to prime banks in the
London interbank market at approximately 11:00 a.m., London time, on
such Interest Determination Date and in a principal amount 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 Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such Interest 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
Interest Determination Date, by three major banks in such principal
financial center selected by the Calculation Agent (after consultation
with the Issuer) on such Interest 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 Interest Determination Date (or,
if pounds sterling is the Index Currency, commencing on such Interest
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; provided, however,
that if the banks selected as aforesaid by the Calculation Agent are not
quoting rates as mentioned in this sentence, "LIBOR" for such Interest
Reset Period will be the same as LIBOR for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest payable on the LIBOR Notes for which LIBOR is being
determined shall be the Initial Interest Rate). "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.
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 a.m., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean
of the rates of interest publicly announced by each bank named on the
Reuters Screen USPRIME1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Interest Determination Date as
quoted on the Reuters Screen USPRIME1 Page on such Interest Determination
Date, or, if fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number
of days in the year divided by 360 as of the close of business on such
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen USPRIME1 Page" means the display designated
as Page "USPRIME1" on the Reuters Monitor Money Rates Service (or such
other page as may replace the USPRIME1 Page on that service for the purpose
of displaying prime rates or base lending rates of major United States
banks).
Determination of Treasury Rate. If the Base Rate specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall
be the rate for the auction held on such date of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury Bills--
auction average (investment)," or if not so published by 9:00 a.m., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or reported as provided
above by 3:00 p.m., New York City time, on such Calculation Date or if no
such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
p.m., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Treasury Rate for such
Interest Reset Date will be the same as the Treasury Rate for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on
the face hereof is the CMT Rate, the CMT Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate displayed for the Index Maturity specified on the face hereof on the
Designated CMT Telerate Page (as defined below) under the Caption ". . .
Treasury Constant Maturities . . . Federal Reserve Board Release H.15"
under the column for the Designated CMT Maturity Index (as defined below)
for (i) if the Designated CMT Telerate Page is 7055, the rate on such
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the week or the month, as applicable, ended immediately preceding the
week in which the related Interest Determination Date occurs. If such rate
is no longer displayed on the relevant page, or is not displayed by 3:00
p.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, then the CMT Rate for such Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If
such rate is no longer published, or is not published by 3:00 p.m., New
York City time, on the related Calculation Date, then the CMT Rate for such
Interest Determination Date will be such Treasury Constant Maturity rate
for the Designated CMT Maturity Index (or other United States Treasury rate
for the Designated CMT Maturity Index) for the Interest Determination Date
with respect to the related Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent determines to
be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 p.m., New York time, on the related Calculation Date, then
the CMT Rate for the Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately
3:30 p.m., New York City time, on the Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers (each, a "Reference Dealer") in The City of
New York (which may include affiliates of the Issuer) selected by the
Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Issuer, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for the most recently issued direct noncallable fixed rate obligations of
the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and remaining term to
maturity of not less than such Designated CMT Maturity Index minus one
year. If the Calculation Agent cannot obtain three such Treasury Notes
quotations, the CMT Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based
on the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 p.m., New York City time, on the Interest Determination
Date of three Reference Dealers in The City of New York (from five such
Reference Dealers selected by the Calculation Agent, after consultation
with the Issuer, and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity
of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated
CMT Maturity Index and in an amount of at least $100,000,000. If three or
four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will
be eliminated; provided, however, that if fewer than three Reference
Dealers selected by the Calculation Agent are quoting as described herein,
the CMT Rate for such Interest Reset Date will be the same as the CMT Rate
for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate). If two Treasury Notes with an original
maturity as described in the second preceding sentence have remaining terms
to maturity equally close to the Designated CMT Maturity Index, the quotes
for the Treasury note with the shorter remaining term to maturity will be
used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no
such page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" shall be the original period
to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20
or 30 years) specified on the face hereof with respect to which the CMT
Rate will be calculated. If no such maturity is specified on the face
hereof, the Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or less than
the Minimum Interest Rate, if any, specified on the face hereof. The
Calculation Agent shall calculate the interest rate hereon in accordance
with the foregoing on or before each Calculation Date. The interest rate
on this Note will in no event be higher than the maximum rate permitted by
New York law, as the same may be modified by United States Federal law of
general application.
At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect
and, if determined, the interest rate that will become effective as of the
next Interest Reset Date.
Unless otherwise indicated on the face hereof, interest
payments on this Note shall be the amount of interest accrued from and
including the Interest Accrual Date or from and including the last date to
which interest has been paid or duly provided for to but, excluding the
Interest Payment Dates or the Maturity Date (or any earlier redemption or
repayment date), as the case may be. Accrued interest hereon shall be an
amount calculated by multiplying the face amount hereof by an accrued
interest factor. Such accrued interest factor shall be computed by adding
the interest factor calculated for each day in the period for which
interest is being paid. The interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the
Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate
or LIBOR, as specified on the face hereof, or by the actual number of days
in the year if the Base Rate is the Treasury Rate or the CMT Rate, as
specified on the face hereof. All percentages resulting from any
calculation of the rate of interest on this Note will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point
(.0000001), with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation on this
Note will be rounded to the nearest cent (with one-half cent rounded
upward). The interest rate in effect on any Interest Reset Date will be
the applicable rate as reset on such date. The interest rate applicable to
any other day is the interest rate from the immediately preceding Interest
Reset Date (or, if none, the Initial Interest Rate).
This Note and all other obligations of the Issuer hereunder
will constitute part of the subordinated debt of the Issuer, will be issued
under the Subordinated Indenture and will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the
Subordinated Indenture, to all "Senior Indebtedness" of the Issuer. The
Subordinated Indenture defines "Senior Indebtedness" as obligations (other
than non-recourse obligations, the debt securities, including this Note,
issued under the Subordinated Indenture or any other obligations
specifically designated as being subordinate in right of payment to Senior
Indebtedness) of, or guaranteed or assumed by, the Issuer for borrowed
money or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without
coupons, and, if denominated in U.S. dollars, is issuable only in
denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in
excess thereof. If this Note is denominated in a Specified Currency other
than U.S. dollars, then, unless a higher minimum denomination is required
by applicable law, it is issuable only in denominations of the equivalent
of U.S. $1,000 (rounded down to an integral multiple of 1,000 units of such
Specified Currency), or any amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency, as determined by
reference to the noon dollar buying rate in New York City for cable
transfers of such Specified Currency published by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance; provided, however, in the case of ECUs, the
Market Exchange Rate shall be the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date
of issuance.
The Chase Manhattan Bank (formerly known as Chemical Bank)
has been appointed registrar for the Notes (the "Registrar," which term
includes any successor registrar appointed by the Issuer), and the
Registrar will maintain at its office in The City of New York a register
for the registration and transfer of Notes. This Note may be transferred
at the aforesaid office of the Registrar by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Registrar and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Registrar shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Registrar will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Subordinated Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. The date of registration of any Note delivered upon any exchange
or transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case this Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and this Note or evidence of the
loss, theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Registrar, a new Note of like tenor
will be issued by the Issuer in exchange for this Note, but, if this Note
is destroyed, lost or stolen, only upon receipt of evidence satisfactory to
the Registrar and the Issuer that this Note was destroyed or lost or stolen
and, if required, upon receipt also of indemnity satisfactory to each of
them. All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Subordinated Indenture provides that, (a) if an Event of
Default (as defined in the Subordinated Indenture) due to the default in
payment of principal of, premium, if any, or interest on, any series of
debt securities issued under the Subordinated Indenture, including the
series of Subordinated Medium-Term Notes of which this Note forms a part,
or due to the default in the performance or breach of any other covenant or
warranty of the Issuer applicable to the debt securities of such series but
not applicable to all outstanding debt securities issued under the
Subordinated Indenture shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of the debt
securities of each affected series (voting as a single class) may then
declare the principal of all debt securities of all such series and
interest accrued thereon to be due and payable immediately and (b) if an
Event of Default due to a default in the performance of any other of the
covenants or agreements in the Subordinated Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due
to certain events of bankruptcy, insolvency and reorganization of the
Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all debt securities
issued under the Subordinated Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be
waived (except a continuing default in payment of principal (or premium, if
any) or interest on such debt securities) by the holders of a majority in
principal amount of the debt securities of all affected series then
outstanding.
The Subordinated Indenture permits the Issuer and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the debt securities of all series issued
under the Subordinated Indenture then outstanding and affected (voting as
one class), to execute supplemental indentures adding any provisions to or
changing in any manner the rights of the holders of each series so
affected; provided that the Issuer and the Trustee may not, without the
consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture; provided, however, that neither this Note nor the Subordinated
Indenture may be amended to alter the subordination provisions hereof or
thereof without the written consent of each holder of Senior Indebtedness
then outstanding that would be adversely affected thereby.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate 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 single European currency) where the
required payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in
which the Notes may be denominated or may be payable, is equal to the value
of the ECU that is from time to time used as the unit of account of the EC.
If the ECU becomes a currency in its own right in accordance with the
Treaty, all references to ECU in the Notes shall be construed as references
to such currency.
With respect to each due date for the payment of principal
of, or interest on, the Notes 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 or U.S. dollars, in which all
payments due on or after that date with respect to the Notes and coupons
shall be made. Notice of the Chosen Currency so selected shall be provided
by first class mail to each holder at the address of such holder which
appears on the books maintained by the registrar and to the Paying Agent.
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.
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 select a Chosen Currency in which
all payments with respect to Notes and coupons 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 by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed 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 "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
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 securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the
specified office of a paying agent in the country of the Chosen Currency,
or, if none, or at the option of the holder, at the specified office of any
Paying Agent either by a check drawn on, or by transfer to an account
maintained by the holder with, a bank in the principal financial center of
the country of the Chosen Currency.
All determinations referred to above made by, or on behalf
of, the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at
such entity's sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal
of and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as
aforesaid of the Notes. The Issuer may designate other agencies for the
payment of said principal, premium and interest at such place or places
(subject to applicable laws and regulations) as the Issuer may decide. So
long as there shall be such an agency, the Issuer shall keep the Trustee
advised of the names and locations of such agencies, if any are so
designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Subordinated Indenture
shall alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on
this Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and
none of the Issuer, the Trustee or any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal
of, premium, if any, or the interest on this Note, for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Subordinated Indenture or any indenture supplemental thereto, against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
This Note shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the
Subordinated Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Subordinated Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ________________________ Custodian _______________
(Cust) (Minor)
Under Uniform Gifts to Minors Act ____________________________________
(State)
Additional abbreviations may also be used though not in the
above list.
___________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:___________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: _________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not
being repaid (in the absence of any such specification, one such Note will
be issued for the portion not being repaid): ______________.
Dated:___________________________ ___________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement.
[FORM OF FACE OF SECURITY]
Floating Rate Subordinated Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP:(1)
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co.
or such other name as requested by an authorized representative of The
Depository Trust Company and any payment is made to Cede & Co., ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL since the registered owner hereof, Cede & Co., has an interest
herein.(1)
------------
(1) Applies only if this Note is a Registered Global Security.
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.
MORGAN STANLEY, DEAN WITTER, DISCOVER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
Morgan Stanley, Dean Witter, Discover & Co., a Delaware
corporation (together with its successors and assigns, the "Issuer"), for
value received, hereby promises to pay to
, or registered assignees, the principal sum of
on the Maturity Date specified above (except to the extent redeemed or repaid
prior to the Maturity Date) and to pay interest thereon, from and including
the Interest Accrual Date specified above at a rate per annum equal to the
Initial Interest Rate specified above until the Initial Interest Reset Date
specified above, and thereafter at a rate per annum determined in accordance
with the provisions specified on the reverse hereof until the principal hereof
is paid or duly made available for payment. The Issuer will pay interest in
arrears monthly, quarterly, semiannually or annually as specified above as the
Interest Payment Period on each Interest Payment Date (as specified above),
commencing with the first Interest Payment Date next succeeding the Interest
Accrual Date specified above, and on the Maturity Date (or any redemption or
repayment date); provided, however, that if the Interest Accrual Date occurs
between a Record Date, as defined below, and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date succeeding the Interest Accrual Date to the registered holder of this
Note on the Record Date with respect to such second Interest Payment Date; and
provided, further, that if an Interest Payment Date (other than the Maturity
Date or redemption or repayment date) would fall on a day that is not a
Business Day, as defined on the reverse hereof, such Interest Payment Date
shall be the following day that is a Business Day, except that if the Base
Rate specified above is LIBOR and such next Business Day falls in the next
calendar month, such Interest Payment Date shall be the immediately preceding
day that is a Business Day; and provided, further, that if the Maturity Date
or redemption or repayment date would fall on a day that is not a Business
Day, such Maturity Date or redemption or repayment date shall be on the
following day that is a Business Day and no interest shall accrue for the
period from and after such Maturity Date or redemption or repayment date.
Interest on this Note will accrue from and including the most
recent date to which interest has been paid or duly provided for, or, if no
interest has been paid or duly provided for, from and including the Interest
Accrual Date, until but excluding the date the principal hereof has been paid
or duly made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, subject to
certain exceptions described herein, be paid to the person in whose name this
Note (or one or more predecessor Notes) is registered at the close of business
on the date 15 calendar days prior to such Interest Payment Date (whether or
not a Business Day) (each such date a "Record Date"); provided, however, that
interest payable on the Maturity Date (or any redemption or repayment date)
will be payable to the person to whom the principal hereof shall be payable.
Payment of the principal of this Note, any premium and the
interest due at the Maturity Date (or any redemption or repayment date),
unless this Note is denominated in a Specified Currency other than U.S.
dollars and is to be paid in whole or in part in such Specified Currency,
will be made in immediately available funds upon surrender of this Note at
the office or agency of the Paying Agent, as defined on the reverse hereof,
maintained for that purpose in the Borough of Manhattan, The City of New
York, or at such other paying agency as the Issuer may determine, in U.S.
dollars. U.S. dollar payments of interest, other than interest due at
maturity or any date of redemption or repayment, will be made by U.S.
dollar check mailed to the address of the person entitled thereto as such
address shall appear in the Note register. A holder of U.S. $10,000,000 or
more in aggregate principal amount of Notes having the same Interest
Payment Date, the interest on which is payable in U.S. dollars, shall be
entitled to receive payments of interest, other than interest due at
maturity or any date of redemption or repayment, by wire transfer of
immediately available funds if appropriate wire transfer instructions have
been received by the Paying Agent in writing not less than 15 calendar days
prior to the applicable Interest Payment Date.
If this Note is denominated in a Specified Currency other
than U.S. dollars, and the holder does not elect (in whole or in part) to
receive payment in U.S. dollars pursuant to the next succeeding paragraph,
payments of interest, principal or any premium with regard to this Note
will be made by wire transfer of immediately available funds to an account
maintained by the holder hereof with a bank located outside the United
States if appropriate wire transfer instructions have been received by the
Paying Agent in writing not less than 15 calendar days prior to the
applicable payment date, provided that, if such wire transfer instructions
are not received, such payments will be made by check payable in such
Specified Currency mailed to the address of the person entitled thereto as
such address shall appear in the Note register, and provided, further, that
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
surrender of this Note at the office or agency referred to in the preceding
paragraph.
If so indicated on the face hereof, the holder of this Note,
if denominated in a Specified Currency other than U.S. dollars, may elect
to receive all or a portion of payments on this Note in U.S. dollars by
transmitting a written request to the Paying Agent, on or prior to the
Record Date or at least ten Business Days prior to the Maturity Date or on
any redemption or repayment date, as the case may be. Such election shall
remain in effect unless such request is revoked by written notice to the
Paying Agent as to all or a portion of payments on this Note at least five
Business Days prior to such Record Date or at least ten days prior to the
Maturity Date or any redemption or repayment date, as the case may be.
If the holder elects to receive all or a portion of payments
of principal of and any premium and interest on this Note, if denominated
in a Specified Currency other than U.S. dollars, in U.S. dollars, the
Exchange Rate Agent will convert such payments into U.S. dollars. In the
event of such an election, payment in respect of this Note will be based
upon the exchange rate as determined by the Exchange Rate Agent based on
the highest bid quotation in The City of New York received by such Exchange
Rate Agent at approximately 11:00 a.m., New York City time, on the second
Business Day preceding the applicable payment date from three recognized
foreign exchange dealers (one of which may be the Exchange Rate Agent
unless such Exchange Rate Agent is an affiliate of the Issuer), for the
purchase by the quoting dealer of U.S. dollars for the Specified Currency
for settlement on such payment date in the amount of the Specified Currency
payable in the absence of such an election to such holder and at which the
applicable dealer commits to execute a contract. If such bid quotations
are not available, such payment will be made in the Specified Currency.
All currency exchange costs will be borne by the holder of this Note by
deductions from such payments.
Reference is hereby made to the further provisions of this Note
set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place, including,
without limitation, the provisions relating to the subordination of this Note
to the Issuer's Senior Indebtedness, as defined on the reverse hereof.
Unless the certificate of authentication hereon has been
executed by the Authenticating Agent referred to on the reverse hereof by
manual signature, this Note shall not be entitled to any benefit under the
Subordinated Indenture, as defined on the reverse hereof, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Issuer has caused this Note to be duly
executed.
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
Subordinated Indenture.
THE CHASE MANHATTAN BANK,
as Authentication Agent
By:_____________________________
Authorized Officer
[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Subordinated
Global Medium-Term Notes, Series C, having maturities more than nine months
from the date of issue (the "Notes") of the Issuer. The Notes are issuable
under a Subordinated Indenture, dated as of April 15, 1989, as supplemented
by a First Supplemental Subordinated Indenture dated as of May 15, 1991 and
a Second Supplemental Subordinated Indenture dated as of April 15, 1996
between Morgan Stanley Group Inc. (as predecessor of the Issuer) and The
First National Bank of Chicago, as Trustee (the "Trustee," which term
includes any successor trustee under the Subordinated Indenture) as further
supplemented by a Third Supplemental Subordinated Indenture dated as of
June 1, 1997 between the Issuer and the Trustee (as so supplemented, the
"Subordinated Indenture"), to which Subordinated Indenture and all
indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities of the
Issuer, the Trustee and holders of the Notes and the terms upon which the
Notes are, and are to be, authenticated and delivered. The Trustee has
appointed The Chase Manhattan Bank (formerly known as Chemical Bank) as
Authenticating Agent (the "Authenticating Agent," which term includes any
successor authenticating agent appointed by the Trustee) with respect to
the Notes, and the Issuer has appointed The Chase Manhattan Bank (formerly
known as Chemical Bank) at its corporate trust office in The City of New
York as the paying agent (the "Paying Agent," which term includes any
additional or successor Paying Agent appointed by the Issuer) with respect
to the Notes. The terms of individual Notes may vary with respect to
interest rates, interest rate formulas, issue dates, maturity dates, or
otherwise, all as provided in the Subordinated Indenture. To the extent
not inconsistent herewith, the terms of the Subordinated Indenture are
hereby incorporated by reference herein.
Unless otherwise 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, will not be redeemable or subject to repayment at the option of
the holder prior to maturity.
Unless otherwise indicated on the face of this Note, this
Note may not be redeemed prior to the Maturity Date. If so indicated on
the face of this Note, this Note may be redeemed in whole or in part at the
option of the Issuer on or after the Initial Redemption Date specified on
the face hereof on the terms set forth on the face hereof, together with
interest accrued and unpaid hereon to the date of redemption. 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. Notice of
redemption shall be mailed to the registered holders of the Notes
designated for redemption at their addresses as the same shall appear on
the Note register not less than 30 nor more than 60 days prior to the date
fixed for redemption, subject to all the conditions and provisions of the
Subordinated Indenture. In the event of redemption of this Note in part
only, a new Note or Notes for the amount of the unredeemed portion hereof
shall be issued in the name of the holder hereof upon the cancellation
hereof.
Unless otherwise indicated on the face of this Note, this
Note shall not be subject to repayment at the option of the holder prior to
the Maturity Date. 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. For this Note to be repaid at the option
of the holder hereof, the Paying Agent must receive at its corporate trust
office in the Borough of Manhattan, The City of New York, at least 15 but
not more than 30 days prior to the date of repayment, (i) this Note with
the form entitled "Option to Elect Repayment" below duly completed or (ii)
a telegram, telex, facsimile transmission or a letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or a trust company in the United States
setting forth the name of the holder of this Note, the principal amount
hereof, the certificate number of this Note or a description of this Note's
tenor and terms, the principal amount hereof to be repaid, a statement that
the option to elect repayment is being exercised thereby and a guarantee
that this Note, together with the form entitled "Option to Elect Repayment"
duly completed, will be received by the Paying Agent not later than the
fifth Business Day after the date of such telegram, telex, facsimile
transmission or letter; provided, that such telegram, telex, facsimile
transmission or letter shall only be effective if this Note and form duly
completed are received by the Paying Agent by such fifth Business Day.
Exercise of such repayment option by the holder hereof shall be
irrevocable. In the event of repayment of this Note in part only, a new
Note or Notes for the amount of the unpaid portion hereof shall be issued
in the name of the holder hereof upon the cancellation hereof.
This Note will bear interest at the rate determined in
accordance with the applicable provisions below by reference to the Base
Rate shown on the face hereof based on the Index Maturity, if any, shown on
the face hereof (i) plus or minus the Spread, if any, and/or (ii)
multiplied by the Spread Multiplier, if any, specified on the face hereof.
Commencing with the Initial Interest Reset Date specified on the face
hereof, the rate at which interest on this Note is payable shall be reset
as of each Interest Reset Date (as used herein, the term "Interest Reset
Date" shall include the Initial Interest Reset Date). The determination of
the rate of interest at which this Note will be reset on any Interest Reset
Date shall be made on the Interest Determination Date (as defined below)
pertaining to such Interest Reset Date. The Interest Reset Dates will be
the Interest Reset Dates specified on the face hereof; provided, however,
that (a) the interest rate in effect for the period from the Interest
Accrual Date to the Initial Interest Reset Date will be the Initial
Interest Rate and (b) unless otherwise specified on the face hereof, the
interest rate in effect for the ten calendar days immediately prior to
maturity, redemption or repayment will be that in effect on the tenth
calendar day preceding such maturity, redemption or repayment date. If any
Interest Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next succeeding day that
is a Business Day, except that if the Base Rate specified on the face
hereof is LIBOR and such Business Day is in the next succeeding calendar
month, such Interest Reset Date shall be the next preceding Business Day.
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, 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 and (i) if this Note bears interest calculated by
reference to LIBOR that is also a London Banking Day, (ii) 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, (iii) if this Note is denominated in Australian
dollars, in Sydney and (iv) if this Note is denominated in ECUs, that is
not a non-ECU clearing day, as determined by the ECU Banking Association in
Paris.
The Interest Determination Date pertaining to an Interest
Reset Date for Notes bearing interest calculated by reference to the CD
Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate and CMT Rate
will be the second Business Day next preceding such Interest Reset Date.
The Interest Determination Date pertaining to an Interest Reset Date for
Notes bearing interest calculated by reference to LIBOR shall be the second
London Banking Day preceding such Interest Reset Date, except that the
Interest Determination Date pertaining to an Interest Reset Date for a
LIBOR Note for which the Index Currency is pounds sterling will be such
Interest Reset Date. As used herein, "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. The Interest Determination Date
pertaining to an Interest Reset Date for Notes bearing interest calculated
by reference to the Treasury Rate shall be the day of the week in which
such Interest Reset Date falls on which Treasury bills normally would be
auctioned; provided, however, that if as a result of a legal holiday an
auction is held on the Friday of the week preceding such Interest Reset
Date, the related Interest Determination Date shall be such preceding
Friday; and provided, further, that if an auction shall fall on any
Interest Reset Date, then the Interest Reset Date shall instead be the
first Business Day following the date of such auction.
Unless otherwise specified on the face hereof, the
"Calculation Date" pertaining to an Interest Determination Date will be the
earlier of (i) the tenth calendar day after such Interest Determination
Date or, if such day is not a Business Day, the next succeeding Business
Day, or (ii) the Business Day preceding the applicable Interest Payment
Date or Maturity Date (or, with respect to any principal amount to be
redeemed or repaid, any redemption or repayment date), as the case may be.
Determination of CD Rate. If the Base Rate specified on the
face hereof is the CD Rate, the CD Rate with respect to this Note shall be
determined on each Interest Determination Date and shall be the rate on
such date for negotiable certificates of deposit having the Index Maturity
specified on the face hereof as published by the Board of Governors of the
Federal Reserve System in "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Board of Governors of the
Federal Reserve System ("H.15(519)"), under the heading "CDs (Secondary
Market)," or, if not so published by 9:00 a.m., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, the CD
Rate will be the rate on such Interest Determination Date for negotiable
certificates of deposit of the Index Maturity specified on the face hereof
as published by the Federal Reserve Bank of New York in its daily
statistical release "Composite 3:30 p.m. Quotations for U.S. Government
Securities" ("Composite Quotations") under the heading "Certificates of
Deposit." If neither of such rates is published by 3:00 p.m., New York City
time, on such Calculation Date, then the CD Rate on such Interest
Determination Date will be calculated by the Calculation Agent referred to
on the face hereof and will be the arithmetic mean of the secondary market
offered rates as of 10:00 a.m., New York City time, on such Interest
Determination Date for certificates of deposit in an amount that is
representative of a single transaction at that time with a remaining
maturity closest to the Index Maturity specified on the face hereof of
three leading nonbank dealers in negotiable U.S. dollar certificates of
deposit in The City of New York selected by the Calculation Agent for
negotiable certificates of deposit of major United States money center
banks; provided, however, that if the dealers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the CD
Rate in effect for the applicable period will be the same as the CD Rate
for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
Determination of Commercial Paper Rate. If the Base Rate
specified on the face hereof is the Commercial Paper Rate, the Commercial
Paper Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the Money Market Yield (as defined herein)
of the rate on such date for commercial paper having the Index Maturity
specified on the face hereof, as such rate shall be published in H.15(519)
under the heading "Commercial Paper," or if not so published prior to 9:00
a.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Commercial Paper Rate shall be the Money
Market Yield of the rate on such Interest Determination Date for commercial
paper of the Index Maturity specified on the face hereof as published in
Composite Quotations under the heading "Commercial Paper." If neither of
such rates is published by 3:00 p.m., New York City time, on such
Calculation Date, then the Commercial Paper Rate shall be the Money Market
Yield of the arithmetic mean of the offered rates as of 11:00 a.m., New
York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the
Calculation Agent for commercial paper of the Index Maturity specified on
the face hereof, placed for an industrial issuer whose bond rating is "AA,"
or the equivalent, from a nationally recognized rating agency; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Commercial Paper Rate in
effect for the applicable period will be the same as the Commercial Paper
Rate for the immediately preceding Interest Reset Period (or, if there was
no such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate).
"Money Market Yield" shall be the yield calculated in
accordance with the following formula:
D x 360
Money Market Yield = ------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for
commercial paper quoted on a bank discount basis and expressed as a decimal
and "M" refers to the actual number of days in the Index Maturity specified on
the face hereof.
Determination of Federal Funds Rate. If the Base Rate
specified on the face hereof is the Federal Funds Rate, the Federal Funds
Rate with respect to this Note shall be determined on each Interest
Determination Date and shall be the rate on such date for Federal Funds as
published in H.15(519) under the heading "Federal Funds (Effective)," or,
if not so published by 9:00 a.m., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Federal Funds Rate
will be the rate on such Interest Determination Date as published in
Composite Quotations under the heading "Federal Funds/Effective Rate." If
neither of such rates is published by 3:00 p.m., New York City time, on
such Calculation Date, the Federal Funds Rate for such Interest
Determination Date will be calculated by the Calculation Agent and will be
the arithmetic mean of the rates for the last transaction in overnight
Federal funds as of 11:00 a.m., New York City time, on such Interest
Determination Date arranged by three leading brokers in Federal funds
transactions in The City of New York selected by the Calculation Agent;
provided, however, that if the brokers selected as aforesaid by the
Calculation Agent are not quoting as mentioned in this sentence, the
Federal Funds Rate in effect for the applicable period will be the same as
the Federal Funds Rate for the immediately preceding Interest Reset Period
(or, if there was no such Interest Reset Period, the rate of interest
payable hereon shall be the Initial Interest Rate).
Determination of LIBOR. If the Base Rate specified on the
face hereof is LIBOR, LIBOR with respect to this Note shall be determined
on each Interest Determination Date as follows:
(i) As of the Interest Determination Date, the Calculation
Agent 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 London interbank market 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 Interest
Determination Date, which appear on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on such Interest 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 Interest Determination Date (or, if
pounds sterling is the Index Currency, commencing on such Interest
Determination Date), that appears on the Designated LIBOR Page at
approximately 11:00 a.m., London time, on such Interest 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 Interest Determination
Date will be determined as if the parties had specified the rate described
in (ii) below.
(ii) With respect to an Interest 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 Interest
Determination Date (or, if pounds sterling is the Index Currency,
commencing on such Interest Determination Date), to prime banks in the
London interbank market at approximately 11:00 a.m., London time, on
such Interest Determination Date and in a principal amount 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 Interest Determination Date will be the
arithmetic mean of such quotations. If fewer than two quotations are
provided, LIBOR determined on such Interest 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
Interest Determination Date, by three major banks in such principal
financial center selected by the Calculation Agent (after consultation
with the Issuer) on such Interest 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 Interest Determination Date (or,
if pounds sterling is the Index Currency, commencing on such Interest
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; provided, however,
that if the banks selected as aforesaid by the Calculation Agent are not
quoting rates as mentioned in this sentence, "LIBOR" for such Interest
Reset Period will be the same as LIBOR for the immediately preceding
Interest Reset Period (or, if there was no such Interest Reset Period,
the rate of interest payable on the LIBOR Notes for which LIBOR is being
determined shall be the Initial Interest Rate). "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.
Determination of Prime Rate. If the Base Rate specified on
the face hereof is the Prime Rate, the Prime Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate set forth in H.15(519) for such date opposite the caption "Bank Prime
Loan." If such rate is not yet published by 9:00 a.m., New York City time,
on the Calculation Date pertaining to such Interest Determination Date, the
Prime Rate for such Interest Determination Date will be the arithmetic mean
of the rates of interest publicly announced by each bank named on the
Reuters Screen USPRIME1 Page (as defined below) as such bank's prime rate
or base lending rate as in effect for such Interest Determination Date as
quoted on the Reuters Screen USPRIME1 Page on such Interest Determination
Date, or, if fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Interest Determination Date, the rate shall be the
arithmetic mean of the prime rates quoted on the basis of the actual number
of days in the year divided by 360 as of the close of business on such
Interest Determination Date by at least two of the three major money center
banks in The City of New York selected by the Calculation Agent from which
quotations are requested. If fewer than two quotations are provided, the
Prime Rate shall be calculated by the Calculation Agent and shall be
determined as the arithmetic mean on the basis of the prime rates in The
City of New York by the appropriate number of substitute banks or trust
companies organized and doing business under the laws of the United States,
or any State thereof, in each case having total equity capital of at least
U.S. $500 million and being subject to supervision or examination by
Federal or State authority, selected by the Calculation Agent to quote such
rate or rates; provided, however, that if the banks or trust companies
selected as aforesaid by the Calculation Agent are not quoting rates as set
forth above, the "Prime Rate" in effect for such Interest Reset Period will
be the same as the Prime Rate for the immediately preceding Interest Reset
Period (or, if there was no such Interest Reset Period, the rate of
interest payable hereon shall be the Initial Interest Rate).
"Reuters Screen USPRIME1 Page" means the display designated
as Page "USPRIME1" on the Reuters Monitor Money Rates Service (or such
other page as may replace the USPRIME1 Page on that service for the purpose
of displaying prime rates or base lending rates of major United States
banks).
Determination of Treasury Rate. If the Base Rate specified
on the face hereof is the Treasury Rate, the Treasury Rate with respect to
this Note shall be determined on each Interest Determination Date and shall
be the rate for the auction held on such date of direct obligations of the
United States ("Treasury Bills") having the Index Maturity specified on the
face hereof, as published in H.15(519) under the heading "Treasury Bills--
auction average (investment)," or if not so published by 9:00 a.m., New
York City time, on the Calculation Date pertaining to such Interest
Determination Date, the auction average rate on such Interest Determination
Date (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) as otherwise announced
by the United States Department of the Treasury. In the event that the
results of the auction of Treasury Bills having the Index Maturity
specified on the face hereof are not published or reported as provided
above by 3:00 p.m., New York City time, on such Calculation Date or if no
such auction is held on such Interest Determination Date, then the Treasury
Rate shall be calculated by the Calculation Agent and shall be a yield to
maturity (expressed as a bond equivalent, on the basis of a year of 365 or
366 days, as applicable, and applied on a daily basis) calculated using the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
p.m., New York City time, on such Interest Determination Date, of three
leading primary United States government securities dealers selected by the
Calculation Agent for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity specified on the face hereof; provided,
however, that if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the Treasury Rate for such
Interest Reset Date will be the same as the Treasury Rate for the
immediately preceding Interest Reset Period (or, if there was no such
Interest Reset Period, the rate of interest payable hereon shall be the
Initial Interest Rate).
Determination of CMT Rate. If the Base Rate specified on
the face hereof is the CMT Rate, the CMT Rate with respect to this Note
shall be determined on each Interest Determination Date and shall be the
rate displayed for the Index Maturity specified on the face hereof on the
Designated CMT Telerate Page (as defined below) under the Caption ". . .
Treasury Constant Maturities . . . Federal Reserve Board Release H.15"
under the column for the Designated CMT Maturity Index (as defined below)
for (i) if the Designated CMT Telerate Page is 7055, the rate on such
Interest Determination Date and (ii) if the Designated CMT Telerate Page is
7052, the week or the month, as applicable, ended immediately preceding the
week in which the related Interest Determination Date occurs. If such rate
is no longer displayed on the relevant page, or is not displayed by 3:00
p.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, then the CMT Rate for such Interest
Determination Date will be such Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If
such rate is no longer published, or is not published by 3:00 p.m., New
York City time, on the related Calculation Date, then the CMT Rate for such
Interest Determination Date will be such Treasury Constant Maturity rate
for the Designated CMT Maturity Index (or other United States Treasury rate
for the Designated CMT Maturity Index) for the Interest Determination Date
with respect to the related Interest Reset Date as may then be published by
either the Board of Governors of the Federal Reserve System or the United
States Department of the Treasury that the Calculation Agent determines to
be comparable to the rate formerly displayed on the Designated CMT Telerate
Page and published in the relevant H.15(519). If such information is not
provided by 3:00 p.m., New York time, on the related Calculation Date, then
the CMT Rate for the Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity, based on the arithmetic
mean of the secondary market closing offer side prices as of approximately
3:30 p.m., New York City time, on the Interest Determination Date reported,
according to their written records, by three leading primary United States
government securities dealers (each, a "Reference Dealer") in The City of
New York (which may include affiliates of the Issuer) selected by the
Calculation Agent (from five such Reference Dealers selected by the
Calculation Agent, after consultation with the Issuer, and eliminating the
highest quotation (or, in the event of equality, one of the highest) and
the lowest quotation (or, in the event of equality, one of the lowest)),
for the most recently issued direct noncallable fixed rate obligations of
the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and remaining term to
maturity of not less than such Designated CMT Maturity Index minus one
year. If the Calculation Agent cannot obtain three such Treasury Notes
quotations, the CMT Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity based
on the arithmetic mean of the secondary market offer side prices as of
approximately 3:30 p.m., New York City time, on the Interest Determination
Date of three Reference Dealers in The City of New York (from five such
Reference Dealers selected by the Calculation Agent, after consultation
with the Issuer, and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity
of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated
CMT Maturity Index and in an amount of at least $100,000,000. If three or
four (and not five) of such Reference Dealers are quoting as described
above, then the CMT Rate will be based on the arithmetic mean of the offer
prices obtained and neither the highest nor the lowest of such quotes will
be eliminated; provided, however, that if fewer than three Reference
Dealers selected by the Calculation Agent are quoting as described herein,
the CMT Rate for such Interest Reset Date will be the same as the CMT Rate
for the immediately preceding Interest Reset Period (or, if there was no
such Interest Reset Period, the rate of interest payable hereon shall be
the Initial Interest Rate). If two Treasury Notes with an original
maturity as described in the second preceding sentence have remaining terms
to maturity equally close to the Designated CMT Maturity Index, the quotes
for the Treasury note with the shorter remaining term to maturity will be
used.
"Designated CMT Telerate Page" means the display on the Dow
Jones Telerate Service specified on the face hereof (or any other page as
may replace such page on that service for the purpose of displaying
Treasury Constant Maturities as reported in H.15(519)), for the purpose of
displaying Treasury Constant Maturities as reported in H.15(519). If no
such page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" shall be the original period
to maturity of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20
or 30 years) specified on the face hereof with respect to which the CMT
Rate will be calculated. If no such maturity is specified on the face
hereof, the Designated CMT Maturity Index shall be two years.
Notwithstanding the foregoing, the interest rate hereon
shall not be greater than the Maximum Interest Rate, if any, or less than
the Minimum Interest Rate, if any, specified on the face hereof. The
Calculation Agent shall calculate the interest rate hereon in accordance
with the foregoing on or before each Calculation Date. The interest rate
on this Note will in no event be higher than the maximum rate permitted by
New York law, as the same may be modified by United States Federal law of
general application.
At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect
and, if determined, the interest rate that will become effective as of the
next Interest Reset Date.
Unless otherwise indicated on the face hereof, interest
payments on this Note shall be the amount of interest accrued from and
including the Interest Accrual Date or from and including the last date to
which interest has been paid or duly provided for to but, excluding the
Interest Payment Dates or the Maturity Date (or any earlier redemption or
repayment date), as the case may be. Accrued interest hereon shall be an
amount calculated by multiplying the face amount hereof by an accrued
interest factor. Such accrued interest factor shall be computed by adding
the interest factor calculated for each day in the period for which
interest is being paid. The interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the
Base Rate is CD Rate, Commercial Paper Rate, Federal Funds Rate, Prime Rate
or LIBOR, as specified on the face hereof, or by the actual number of days
in the year if the Base Rate is the Treasury Rate or the CMT Rate, as
specified on the face hereof. All percentages resulting from any
calculation of the rate of interest on this Note will be rounded, if
necessary, to the nearest one hundred-thousandth of a percentage point
(.0000001), with five one-millionths of a percentage point rounded upward,
and all dollar amounts used in or resulting from such calculation on this
Note will be rounded to the nearest cent (with one-half cent rounded
upward). The interest rate in effect on any Interest Reset Date will be
the applicable rate as reset on such date. The interest rate applicable to
any other day is the interest rate from the immediately preceding Interest
Reset Date (or, if none, the Initial Interest Rate).
This Note and all other obligations of the Issuer hereunder
will constitute part of the subordinated debt of the Issuer, will be issued
under the Subordinated Indenture and will be subordinate and junior in
right of payment, to the extent and in the manner set forth in the
Subordinated Indenture, to all "Senior Indebtedness" of the Issuer. The
Subordinated Indenture defines "Senior Indebtedness" as obligations (other
than non-recourse obligations, the debt securities, including this Note,
issued under the Subordinated Indenture or any other obligations
specifically designated as being subordinate in right of payment to Senior
Indebtedness) of, or guaranteed or assumed by, the Issuer for borrowed
money or evidenced by bonds, debentures, notes or other similar
instruments, and amendments, renewals, extensions, modifications and
refundings of any such indebtedness or obligation.
This Note, and any Note or Notes issued upon transfer or
exchange hereof, is issuable only in fully registered form, without
coupons, and, if denominated in U.S. dollars, is issuable only in
denominations of U.S. $1,000 and any integral multiple of U.S. $1,000 in
excess thereof. If this Note is denominated in a Specified Currency other
than U.S. dollars, then, unless a higher minimum denomination is required
by applicable law, it is issuable only in denominations of the equivalent
of U.S. $1,000 (rounded down to an integral multiple of 1,000 units of such
Specified Currency), or any amount in excess thereof which is an integral
multiple of 1,000 units of such Specified Currency, as determined by
reference to the noon dollar buying rate in New York City for cable
transfers of such Specified Currency published by the Federal Reserve Bank
of New York (the "Market Exchange Rate") on the Business Day immediately
preceding the date of issuance; provided, however, in the case of ECUs, the
Market Exchange Rate shall be the rate of exchange determined by the
Commission of the European Communities (or any successor thereto) as
published in the Official Journal of the European Communities, or any
successor publication, on the Business Day immediately preceding the date
of issuance.
The Chase Manhattan Bank (formerly known as Chemical Bank)
has been appointed registrar for the Notes (the "Registrar," which term
includes any successor registrar appointed by the Issuer), and the
Registrar will maintain at its office in The City of New York a register
for the registration and transfer of Notes. This Note may be transferred
at the aforesaid office of the Registrar by surrendering this Note for
cancellation, accompanied by a written instrument of transfer in form
satisfactory to the Registrar and duly executed by the registered holder
hereof in person or by the holder's attorney duly authorized in writing,
and thereupon the Registrar shall issue in the name of the transferee or
transferees, in exchange herefor, a new Note or Notes having identical
terms and provisions and having a like aggregate principal amount in
authorized denominations, subject to the terms and conditions set forth
herein; provided, however, that the Registrar will not be required (i) to
register the transfer of or exchange any Note that has been called for
redemption in whole or in part, except the unredeemed portion of Notes
being redeemed in part, (ii) to register the transfer of or exchange any
Note if the holder thereof has exercised his right, if any, to require the
Issuer to repurchase such Note in whole or in part, except the portion of
such Note not required to be repurchased, or (iii) to register the transfer
of or exchange Notes to the extent and during the period so provided in the
Subordinated Indenture with respect to the redemption of Notes. Notes are
exchangeable at said office for other Notes of other authorized
denominations of equal aggregate principal amount having identical terms
and provisions. All such exchanges and transfers of Notes will be free of
charge, but the Issuer may require payment of a sum sufficient to cover any
tax or other governmental charge in connection therewith. All Notes
surrendered for exchange shall be accompanied by a written instrument of
transfer in form satisfactory to the Registrar and executed by the
registered holder in person or by the holder's attorney duly authorized in
writing. The date of registration of any Note delivered upon any exchange
or transfer of Notes shall be such that no gain or loss of interest results
from such exchange or transfer.
In case this Note shall at any time become mutilated,
defaced or be destroyed, lost or stolen and this Note or evidence of the
loss, theft or destruction thereof (together with the indemnity hereinafter
referred to and such other documents or proof as may be required in the
premises) shall be delivered to the Registrar, a new Note of like tenor
will be issued by the Issuer in exchange for this Note, but, if this Note
is destroyed, lost or stolen, only upon receipt of evidence satisfactory to
the Registrar and the Issuer that this Note was destroyed or lost or stolen
and, if required, upon receipt also of indemnity satisfactory to each of
them. All expenses and reasonable charges associated with procuring such
indemnity and with the preparation, authentication and delivery of a new
Note shall be borne by the owner of the Note mutilated, defaced, destroyed,
lost or stolen.
The Subordinated Indenture provides that, (a) if an Event of
Default (as defined in the Subordinated Indenture) due to the default in
payment of principal of, premium, if any, or interest on, any series of
debt securities issued under the Subordinated Indenture, including the
series of Subordinated Medium-Term Notes of which this Note forms a part,
or due to the default in the performance or breach of any other covenant or
warranty of the Issuer applicable to the debt securities of such series but
not applicable to all outstanding debt securities issued under the
Subordinated Indenture shall have occurred and be continuing, either the
Trustee or the holders of not less than 25% in principal amount of the debt
securities of each affected series (voting as a single class) may then
declare the principal of all debt securities of all such series and
interest accrued thereon to be due and payable immediately and (b) if an
Event of Default due to a default in the performance of any other of the
covenants or agreements in the Subordinated Indenture applicable to all
outstanding debt securities issued thereunder, including this Note, or due
to certain events of bankruptcy, insolvency and reorganization of the
Issuer, shall have occurred and be continuing, either the Trustee or the
holders of not less than 25% in principal amount of all debt securities
issued under the Subordinated Indenture then outstanding (treated as one
class) may declare the principal of all such debt securities and interest
accrued thereon to be due and payable immediately, but upon certain
conditions such declarations may be annulled and past defaults may be
waived (except a continuing default in payment of principal (or premium, if
any) or interest on such debt securities) by the holders of a majority in
principal amount of the debt securities of all affected series then
outstanding.
The Subordinated Indenture permits the Issuer and the
Trustee, with the consent of the holders of not less than a majority in
aggregate principal amount of the debt securities of all series issued
under the Subordinated Indenture then outstanding and affected (voting as
one class), to execute supplemental indentures adding any provisions to or
changing in any manner the rights of the holders of each series so
affected; provided that the Issuer and the Trustee may not, without the
consent of the holder of each outstanding debt security affected thereby,
(a) extend the final maturity of any such debt security, or reduce the
principal amount thereof, or reduce the rate or extend the time of payment
of interest thereon, or reduce any amount payable on redemption or
repayment thereof, or change the currency of payment thereof, or impair or
affect the rights of any holder to institute suit for the payment thereof
without the consent of the holder of each debt security so affected or (b)
reduce the aforesaid percentage in principal amount of debt securities the
consent of the holders of which is required for any such supplemental
indenture; provided, however, that neither this Note nor the Subordinated
Indenture may be amended to alter the subordination provisions hereof or
thereof without the written consent of each holder of Senior Indebtedness
then outstanding that would be adversely affected thereby.
Except as set forth below, if the principal of, premium, if
any, or interest on, this Note is payable in a Specified Currency other
than U.S. dollars and such Specified Currency is not available to the
Issuer for making payments hereon due to the imposition of exchange
controls or other circumstances beyond the control of the Issuer or is no
longer used by the government of the country issuing such currency or for
the settlement of transactions by public institutions within the
international banking community, then the Issuer will be entitled to
satisfy its obligations to the holder of this Note by making such payments
in U.S. dollars on the basis of the Market Exchange Rate 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 single European currency) where the
required payment is in a Specified Currency other than U.S. dollars will
not constitute an Event of Default.
Subject to the provisions below, the value of the ECU, in
which the Notes may be denominated or may be payable, is equal to the value
of the ECU that is from time to time used as the unit of account of the EC.
If the ECU becomes a currency in its own right in accordance with the
Treaty, all references to ECU in the Notes shall be construed as references
to such currency.
With respect to each due date for the payment of principal
of, or interest on, the Notes 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 or U.S. dollars, in which all
payments due on or after that date with respect to the Notes and coupons
shall be made. Notice of the Chosen Currency so selected shall be provided
by first class mail to each holder at the address of such holder which
appears on the books maintained by the registrar and to the Paying Agent.
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.
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 select a Chosen Currency in which
all payments with respect to Notes and coupons 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 by, or on behalf
of, the Exchange Rate Agent on the following basis. The amounts and
components composing the ECU for this purpose (the "Components") shall be
the amounts and components that composed 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 "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
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 securities
denominated in such currency would purchase such currency in order to make
payments in respect of such securities.
Payments in the Chosen Currency will be made at the
specified office of a paying agent in the country of the Chosen Currency,
or, if none, or at the option of the holder, at the specified office of any
Paying Agent either by a check drawn on, or by transfer to an account
maintained by the holder with, a bank in the principal financial center of
the country of the Chosen Currency.
All determinations referred to above made by, or on behalf
of, the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at
such entity's sole discretion and shall, in the absence of manifest error,
be conclusive for all purposes and binding on holders of Notes and coupons.
So long as this Note shall be outstanding, the Issuer will
cause to be maintained an office or agency for the payment of the principal
of and premium, if any, and interest on this Note as herein provided in the
Borough of Manhattan, The City of New York, and an office or agency in said
Borough of Manhattan for the registration, transfer and exchange as
aforesaid of the Notes. The Issuer may designate other agencies for the
payment of said principal, premium and interest at such place or places
(subject to applicable laws and regulations) as the Issuer may decide. So
long as there shall be such an agency, the Issuer shall keep the Trustee
advised of the names and locations of such agencies, if any are so
designated.
With respect to moneys paid by the Issuer and held by the
Trustee or any Paying Agent for payment of the principal of or interest or
premium, if any, on any Notes that remain unclaimed at the end of two years
after such principal, interest or premium shall have become due and payable
(whether at maturity or upon call for redemption or otherwise), (i) the
Trustee or such Paying Agent shall notify the holders of such Notes that
such moneys shall be repaid to the Issuer and any person claiming such
moneys shall thereafter look only to the Issuer for payment thereof and
(ii) such moneys shall be so repaid to the Issuer. Upon such repayment all
liability of the Trustee or such Paying Agent with respect to such moneys
shall thereupon cease, without, however, limiting in any way any obligation
that the Issuer may have to pay the principal of or interest or premium, if
any, on this Note as the same shall become due.
No provision of this Note or of the Subordinated Indenture
shall alter or impair the obligation of the Issuer, which is absolute and
unconditional, to pay the principal of, premium, if any, and interest on
this Note at the time, place, and rate, and in the coin or currency, herein
prescribed unless otherwise agreed between the Issuer and the registered
holder of this Note.
Prior to due presentment of this Note for registration of
transfer, the Issuer, the Trustee and any agent of the Issuer or the
Trustee may treat the holder in whose name this Note is registered as the
owner hereof for all purposes, whether or not this Note be overdue, and
none of the Issuer, the Trustee or any such agent shall be affected by
notice to the contrary.
No recourse shall be had for the payment of the principal
of, premium, if any, or the interest on this Note, for any claim based
hereon, or otherwise in respect hereof, or based on or in respect of the
Subordinated Indenture or any indenture supplemental thereto, against any
incorporator, shareholder, officer or director, as such, past, present or
future, of the Issuer or of any successor corporation, either directly or
through the Issuer or any successor corporation, whether by virtue of any
constitution, statute or rule of law or by the enforcement of any
assessment or penalty or otherwise, all such liability being, by the
acceptance hereof and as part of the consideration for the issue hereof,
expressly waived and released.
This Note shall for all purposes be governed by, and
construed in accordance with, the laws of the State of New York.
All terms used in this Note which are defined in the
Subordinated Indenture and not otherwise defined herein shall have the
meanings assigned to them in the Subordinated Indenture.
ABBREVIATIONS
The following abbreviations, when used in the inscription on
the face of this instrument, shall be construed as though they were written
out in full according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ________________________ Custodian _______________
(Cust) (Minor)
Under Uniform Gifts to Minors Act ____________________________________
(State)
Additional abbreviations may also be used though not in the
above list.
___________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s)
and transfer(s) unto
________________________________________
[PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE]
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
[PLEASE PRINT OR TYPE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE]
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:___________________________
NOTICE: The signature to this assignment must correspond with the name as
written upon the face of the within Note in every particular without
alteration or enlargement or any change whatsoever.
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Issuer to repay the within Note (or portion thereof specified below) pursuant
to its terms at a price equal to the principal amount thereof, together with
interest to the Optional Repayment Date, to the undersigned at
___________________________________________________________________________
___________________________________________________________________________
___________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: _________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the
Notes to be issued to the holder for the portion of the within Note not
being repaid (in the absence of any such specification, one such Note will
be issued for the portion not being repaid): ______________.
Dated:___________________________ ___________________________
NOTICE: The signature on this
Option to Elect Repayment must
correspond with the name as
written upon the face of the
within instrument in every
particular without alteration or
enlargement.