EXHIBIT 4-j
[FORM OF FACE OF SECURITY]
Floating Rate Subordinated Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP:
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)
MORGAN STANLEY DEAN WITTER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
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(1) Applies only if this Note is a Registered Global Security.
(2) Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of Representations.
(3) Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
Morgan Stanley Dean Witter & 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 ](4) [amount specified in Schedule A
hereto](5) on the Maturity Date specified above (except to the extent redeemed
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(4) Applies if this Note is not issued as part of, or in relation to, a
Unit.
(5) Applies if this Note is issued as part of, or in relation to, a Unit.
or repaid prior to maturity) 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 weekly, 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 or EURIBOR
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 payment shall be
made 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 at maturity (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 maturity (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 the equivalent in a Specified
Currency) 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 on 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](6) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](7); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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 fifth
Business Day after such 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, for payments of interest,
or at least ten days prior to the Maturity Date or any redemption or repayment
date, for payments of principal, 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 (as defined on the reverse hereof) 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
(6)Applies for a Registered Note that is not in global form.
(7)Applies only for a Registered Global Security.
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 & 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 an Amended and Restated Subordinated Indenture, dated as of May 1, 1999,
between the Issuer and The First National Bank of Chicago, as Trustee (the
"Trustee," which term includes any successor trustee under the Subordinated
Indenture) (as may be amended or supplemented from time to time, 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 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 indicated 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.
If so indicated on the face hereof, 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 or within the Redemption Notice Period specified on the face
hereof, subject to all the conditions and provisions of the Subordinated
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the amount of the unredeemed portion hereof shall be issued in the
name of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole or in part in
increments of $1,000 or, if this Note is denominated in a Specified Currency
other than U.S. dollars, in increments of 1,000 units of such Specified
Currency (provided that any remaining principal amount hereof shall not be
less than the minimum authorized denomination hereof) at the option of the
holder hereof at a price equal to 100% of the principal amount to be repaid,
together with interest accrued and unpaid hereon to the date of repayment. 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 specified on the face hereof (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 Dates. 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 immediately succeeding day that is a Business Day, except that if the Base
Rate specified on the face hereof is LIBOR or EURIBOR and such Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, (a) that is neither a legal holiday nor
a day on which banking institutions are authorized or required by law or
regulation to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or euro, in the principal financial center of the country of the
Specified Currency, or (2) if this Note is denominated in Australian dollars,
in Sydney and (b) if this Note is denominated in euro, that is also a day on
which the Trans-European Automated Real-time Gross Settlement Express Transfer
System ("TARGET") is operating (a "TARGET Settlement Day").
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 EURIBOR or LIBOR Notes denominated or
payable in euros shall be the second TARGET Settlement Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by reference to
LIBOR, other than LIBOR Notes denominated or payable in euros, 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," for any Interest Determination Date, the CD
Rate with respect to this Note shall be the rate on that 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)."
The following procedures shall be followed if the CD Rate cannot
be determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date, the CD Rate shall be the rate on
that Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519)
or the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation
Date, the Calculation Agent shall determine the CD Rate to be the arithmetic
mean of the secondary market offered rates as of 10:00 a.m., New York City time,
on that Interest Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent (after consultation with the Issuer) for negotiable
certificates of deposit of major United States money center banks of the highest
credit standing in the market for negotiable certificates of deposit with a
remaining maturity closest to the Index Maturity specified on the face hereof in
an amount that is representative for a single transaction in that market at that
time.
(iii) If the dealers selected by the Calculation Agent are not
quoting as described in (ii) above, the CD Rate shall remain the CD Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest Reset
Period, the rate of interest payable 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," for any Interest
Determination Date, the Commercial Paper Rate with respect to this Note shall
be the Money Market Yield (as defined herein), calculated as described below,
of the rate on that date for commercial paper having the Index Maturity
specified on the face hereof, as that rate is published in H.15(519), under
the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial
Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, then the Commercial Paper Rate shall be the
Money Market Yield of the rate on that Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof as published
in the H.15 Daily Update under the heading "Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation
Date the rate is not yet published in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Commercial Paper Rate to be the
Money Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m.,
New York City time, on that Interest Determination Date of three leading dealers
of commercial paper in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) 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 statistical rating
agency.
(iii) If the dealers selected by the Calculation Agent are not
quoting as mentioned above, the Commercial Paper Rate for that Interest
Determination Date shall remain the Commercial Paper Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a 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 year 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 interest period for which interest is being calculated.
Determination of EURIBOR Notes. If the Base Rate specified on
the face hereof is "EURIBOR," for any Interest Determination Date, EURIBOR
with respect to this Note shall be the rate for deposits in euros as
sponsored, calculated and published jointly by the European Banking Federation
and ACI - The Financial Market Association, or any company established by the
joint sponsors for purposes of compiling and publishing those rates, for the
Index Maturity specified on the face hereof as that rate appears on the
display on Bridge Telerate, Inc., or any successor service, on page 248 or any
other page as may replace page 248 on that service ("Telerate Page 248") as of
11:00 a.m. (Brussels time).
The following procedures shall be followed if the rate cannot
be determined as described above:
(i) If the above rate does not appear, the Calculation Agent
shall request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the applicable
Interest Reset Date, and in a principal amount not less than the equivalent of
U.S.$1 million in euro that is representative of a single transaction in euro,
in that market at that time. If at least two quotations are provided, EURIBOR
shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be
the arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent to
the Index Maturity specified on the face hereof commencing on that Interest
Reset Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate
specified on the face hereof is the "Federal Funds Rate," for any Interest
Determination Date, the Federal Funds Rate with respect to this Note shall be
the rate on that date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or
any successor service, on page 120 or any other page as may replace page 120
on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, the Federal Funds Rate shall be the rate on
that Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be the arithmetic
mean of the rates for the last transaction in overnight federal funds by each of
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) prior to
9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not
quoting as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable 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 based on London
interbank offered rate. The Calculation Agent shall determine "LIBOR" for each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either
(a) if "LIBOR Reuters" is specified as the Reporting Service on the face hereof,
the arithmetic mean of the offered rates for deposits in the Index Currency
having the Index Maturity designated on the face hereof, commencing on the
second London Banking Day immediately following that Interest Determination
Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00
a.m., London time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page; except that if the specified
Designated LIBOR Page, by its terms provides only for a single rate, that single
rate shall be used; or (b) if "LIBOR Telerate" is specified as the Reporting
Service on the face hereof, the rate for deposits in the Index Currency having
the Index Maturity designated on the face hereof, commencing on the second
London Banking Day immediately following that Interest Determination Date or, if
pounds sterling is the Index Currency, commencing on that Interest Determination
Date, that appears on the Designated LIBOR Page at approximately 11:00 a.m.,
London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters
is specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling
is the Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London time,
on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that market at
that time.
(iii) If at least two quotations are provided, LIBOR determined
on that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be determined
for the applicable Interest Reset Date as the arithmetic mean of the rates
quoted at approximately 11:00 a.m., London time, or some other time specified on
the face hereof, in the applicable principal financial center for the country of
the Index Currency on that Interest Reset Date, by three major banks in that
principal financial center selected by the Calculation Agent (after consultation
with the Issuer) for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in that
market at that time.
(iv) If the banks so selected by the Calculation Agent are not
quoting as described in (iii) above, LIBOR in effect for the applicable period
shall be the same as LIBOR for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable shall be
the Initial Interest Rate.
The "Index Currency" means the currency specified on the face
hereof as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the
face hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency,
as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is "Prime Rate," for any Interest Determination Date, the Prime
Rate with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate
cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York
City time, on the Calculation Date, then the Prime Rate shall be the rate on
that Interest Determination Date as published in H.15 Daily Update under the
heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York
City time, on the Calculation Date in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Prime Rate to be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate
or base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen
USPRIME 1 Page for that Interest Determination Date, the Calculation Agent shall
determine the Prime Rate to 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 that Interest Determination Date by at least three major
banks in The City of New York selected by the Calculation Agent (after
consultation with the Issuer).
(iv) If the banks selected are not quoting as described in (iii)
above, the Prime Rate shall remain the Prime Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as
page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major
United States banks.
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is "Treasury Rate," the Treasury Rate with respect to this
Note shall be
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00
p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield of
the rate for the applicable Treasury Bills as published in the H.15 Daily
Update, or other recognized electronic source used for the purpose of displaying
the applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by
3:00 p.m., New York City time, on the related Calculation Date, the Bond
Equivalent Yield of the Auction rate of the applicable Treasury Bills, announced
by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may include the agent or its affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are not
quoting as described in (vi), the Treasury Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in
accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -----------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the
face hereof is the "CMT Rate," for any Interest Determination Date, the CMT
Rate with respect to this Note shall be the rate displayed on the Designated
CMT Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the
Designated CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs, if
the Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate
cannot be determined as described above:
(i) If that rate is no longer displayed on the relevant page, or
if not displayed by 3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) is no longer published, or if
not published by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination 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).
(iii) If the information described in (ii) is not provided by
3:00 p.m., New York City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to 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 ("Reference Dealers") in The City of New
York, which may include an agent or other affiliates of the Issuer, selected by
the Calculation Agent as described in the following sentence. The Calculation
Agent shall select five reference dealers (after consultation with the Issuer)
and shall eliminate 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 a remaining term to maturity
of not less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above 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 shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to 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, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest to
but not less than 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.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate shall be
the CMT Rate for the immediately preceding Interest Reset Period, or, if there
was no Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge
Telerate, Inc., or any successor service, on the page designated on the face
hereof or any other page as may replace that page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10,
20 or 30 years, specified in an applicable pricing supplement for which the
CMT Rate shall be calculated. If no 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 (i) by 360 if the Base Rate is CD Rate,
Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or LIBOR
(except if the Index Currency is pounds sterling); (ii) by 365 if the Base
Rate is LIBOR and the Index Currency is pounds sterling; or (iii) by the
actual number of days in the year if the Base Rate is the Treasury Rate or the
CMT Rate. 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 The
City of New York 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.
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, the Issuer in its discretion may execute a new
Note of like tenor 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 or insolvency 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 modify or amend the provisions for conversion of any currency into
any other currency, or modify or amend the provisions for conversion or
exchange of the debt security for securities of the Issuer or other entities
(other than as provided in the antidilution provisions or other similar
adjustment provisions of the debt securities or otherwise in accordance with
the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the EC, as amended by the Treaty. Any payment
made under such circumstances in U.S. dollars or euro where the required
payment is in an unavailable Specified Currency will not constitute an Event
of Default. If such Market Exchange Rate is not then available to the Issuer
or is not published for a particular Specified Currency, the Market Exchange
Rate will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 a.m., New York City
time, on the second Business Day preceding the date of such payment from three
recognized foreign exchange dealers (the "Exchange Dealers") for the purchase
by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid
quotations are not available, the Exchange Rate Agent shall determine the
market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of 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 ________________
(Minor) (Cust)
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]
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[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
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: _______________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the Notes
to be issued to the holder for the portion of the within Note not being repaid
(in the absence of any such specification, one such Note will be issued for
the portion not being repaid):______________________.
Dated: __________________________ _________________________________
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.
[SCHEDULE A] (8)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _________ __,1999 among the Issuer,
The Chase Manhattan Bank, as Unit Agent, as Collateral Agent and as Trustee
under the Indentures referred to therein and the Holders from time to time of
the Units described therein, the following (A) reductions of the principal
amount of this Note by cancellation upon the application of such amount to the
settlement of Purchase Contracts or the exercise of Universal Warrants or for
any other reason or (B) exchanges of portions of this Note for an interest in
a Note that has been separated from a Unit (a "Separated Note") have been
made:](9) [The following (A) reductions of the principal amount of this Note
by cancellation upon the application of such amount to the settlement of
Purchase Contracts or the exercise of Universal Warrants or for any other
reason or (B) exchanges of an interest in a Note that is part of a Unit (an
"Attached Unit Note") for an interest in this Note have been made:](10)
[FORM OF FACE OF SECURITY]
Floating Rate Subordinated Note
REGISTERED REGISTERED
No. FLR [PRINCIPAL AMOUNT]
CUSIP:
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)
MORGAN STANLEY DEAN WITTER & CO.
SUBORDINATED GLOBAL MEDIUM-TERM NOTE, SERIES C
(Floating Rate)
----------
(1) Applies only if this Note is a Registered Global Security.
(2) Applies if this is a Registered Global Security, unless new
arrangements are made with DTC outside of existing Letters of Representations.
(3) Applicable if other than 30-60 days. If this is a Registered Global
Security, minimum notice period is [20] days.
Morgan Stanley Dean Witter & 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 ](4) [amount specified in Schedule A
hereto](5) on the Maturity Date specified above (except to the extent redeemed
----------
(4) Applies if this Note is not issued as part of, or in relation to, a
Unit.
(5) Applies if this Note is issued as part of, or in relation to, a Unit.
or repaid prior to maturity) 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 weekly, 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 or EURIBOR
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 payment shall be
made 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 at maturity (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 maturity (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 the equivalent in a Specified
Currency) 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 on 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](6) [,
with respect to payments of interest, on or prior to the fifth Business Day
after the applicable Record Date and, with respect to payments of principal or
any premium, at least ten Business Days prior to the Maturity Date or any
redemption or repayment date, as the case may be](7); provided that, if
payment of interest, principal or any premium with regard to this Note is
payable in euro, the account must be a euro account in a country for which the
euro is the lawful currency, provided, further, 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 fifth
Business Day after such 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, for payments of interest,
or at least ten days prior to the Maturity Date or any redemption or repayment
date, for payments of principal, 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 (as defined on the reverse hereof) 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
(6)Applies for a Registered Note that is not in global form.
(7)Applies only for a Registered Global Security.
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 & 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 an Amended and Restated Subordinated Indenture, dated as of May 1, 1999,
between the Issuer and The First National Bank of Chicago, as Trustee (the
"Trustee," which term includes any successor trustee under the Subordinated
Indenture) (as may be amended or supplemented from time to time, 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 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 indicated 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.
If so indicated on the face hereof, 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 or within the Redemption Notice Period specified on the face
hereof, subject to all the conditions and provisions of the Subordinated
Indenture. In the event of redemption of this Note in part only, a new Note or
Notes for the amount of the unredeemed portion hereof shall be issued in the
name of the holder hereof upon the cancellation hereof.
If so indicated on the face of this Note, this Note will be
subject to repayment at the option of the holder on the Optional Repayment
Date or Dates specified on the face hereof on the terms set forth herein. On
any Optional Repayment Date, this Note will be repayable in whole or in part in
increments of $1,000 or, if this Note is denominated in a Specified Currency
other than U.S. dollars, in increments of 1,000 units of such Specified
Currency (provided that any remaining principal amount hereof shall not be
less than the minimum authorized denomination hereof) at the option of the
holder hereof at a price equal to 100% of the principal amount to be repaid,
together with interest accrued and unpaid hereon to the date of repayment. 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 specified on the face hereof (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 Dates. 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 immediately succeeding day that is a Business Day, except that if the Base
Rate specified on the face hereof is LIBOR or EURIBOR and such Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day. As used herein, "Business Day" means any
day, other than a Saturday or Sunday, (a) that is neither a legal holiday nor
a day on which banking institutions are authorized or required by law or
regulation to close (x) in The City of New York or (y) if this Note is
denominated in a Specified Currency other than U.S. dollars, Australian
dollars or euro, in the principal financial center of the country of the
Specified Currency, or (2) if this Note is denominated in Australian dollars,
in Sydney and (b) if this Note is denominated in euro, that is also a day on
which the Trans-European Automated Real-time Gross Settlement Express Transfer
System ("TARGET") is operating (a "TARGET Settlement Day").
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 EURIBOR or LIBOR Notes denominated or
payable in euros shall be the second TARGET Settlement Day preceding such
Interest Reset Date. The Interest Determination Date pertaining to an
Interest Reset Date for Notes bearing interest calculated by reference to
LIBOR, other than LIBOR Notes denominated or payable in euros, 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," for any Interest Determination Date, the CD
Rate with respect to this Note shall be the rate on that 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)."
The following procedures shall be followed if the CD Rate cannot
be determined as described above:
(i) If the above rate is not published in H.15(519) by 9:00 a.m.,
New York City time, on the Calculation Date, the CD Rate shall be the rate on
that Interest Determination Date set forth in the daily update of H.15(519),
available through the world wide website of the Board of Governors of the
Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update, or any
successor site or publication ("H.15 Daily Update") for the Interest
Determination Date for certificates of deposit having the Index Maturity
specified on the face hereof, under the caption "CDs (Secondary Market)."
(ii) If the above rate is not yet published in either H.15(519)
or the H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation
Date, the Calculation Agent shall determine the CD Rate to be the arithmetic
mean of the secondary market offered rates as of 10:00 a.m., New York City time,
on that Interest Determination Date of three leading nonbank dealers in
negotiable U.S. dollar certificates of deposit in The City of New York selected
by the Calculation Agent (after consultation with the Issuer) for negotiable
certificates of deposit of major United States money center banks of the highest
credit standing in the market for negotiable certificates of deposit with a
remaining maturity closest to the Index Maturity specified on the face hereof in
an amount that is representative for a single transaction in that market at that
time.
(iii) If the dealers selected by the Calculation Agent are not
quoting as described in (ii) above, the CD Rate shall remain the CD Rate for the
immediately preceding Interest Reset Period, or, if there was no Interest Reset
Period, the rate of interest payable 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," for any Interest
Determination Date, the Commercial Paper Rate with respect to this Note shall
be the Money Market Yield (as defined herein), calculated as described below,
of the rate on that date for commercial paper having the Index Maturity
specified on the face hereof, as that rate is published in H.15(519), under
the heading "Commercial Paper -- Nonfinancial."
The following procedures shall be followed if the Commercial
Paper Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, then the Commercial Paper Rate shall be the
Money Market Yield of the rate on that Interest Determination Date for
commercial paper of the Index Maturity specified on the face hereof as published
in the H.15 Daily Update under the heading "Commercial Paper -- Nonfinancial."
(ii) If by 3:00 p.m., New York City time, on that Calculation
Date the rate is not yet published in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Commercial Paper Rate to be the
Money Market Yield of the arithmetic mean of the offered rates as of 11:00 a.m.,
New York City time, on that Interest Determination Date of three leading dealers
of commercial paper in The City of New York selected by the Calculation Agent
(after consultation with the Issuer) 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 statistical rating
agency.
(iii) If the dealers selected by the Calculation Agent are not
quoting as mentioned above, the Commercial Paper Rate for that Interest
Determination Date shall remain the Commercial Paper Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable shall be the Initial Interest Rate.
The "Money Market Yield" shall be a 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 year 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 interest period for which interest is being calculated.
Determination of EURIBOR Notes. If the Base Rate specified on
the face hereof is "EURIBOR," for any Interest Determination Date, EURIBOR
with respect to this Note shall be the rate for deposits in euros as
sponsored, calculated and published jointly by the European Banking Federation
and ACI - The Financial Market Association, or any company established by the
joint sponsors for purposes of compiling and publishing those rates, for the
Index Maturity specified on the face hereof as that rate appears on the
display on Bridge Telerate, Inc., or any successor service, on page 248 or any
other page as may replace page 248 on that service ("Telerate Page 248") as of
11:00 a.m. (Brussels time).
The following procedures shall be followed if the rate cannot
be determined as described above:
(i) If the above rate does not appear, the Calculation Agent
shall request the principal Euro-zone office of each of four major banks in the
Euro-zone interbank market, as selected by the Calculation Agent (after
consultation with the Issuer) to provide the Calculation Agent with its offered
rate for deposits in euros, at approximately 11:00 a.m. (Brussels time) on the
Interest Determination Date, to prime banks in the Euro-zone interbank market
for the Index Maturity specified on the face hereof commencing on the applicable
Interest Reset Date, and in a principal amount not less than the equivalent of
U.S.$1 million in euro that is representative of a single transaction in euro,
in that market at that time. If at least two quotations are provided, EURIBOR
shall be the arithmetic mean of those quotations.
(ii) If fewer than two quotations are provided, EURIBOR shall be
the arithmetic mean of the rates quoted by four major banks in the Euro-zone, as
selected by the Calculation Agent (after consultation with the Issuer) at
approximately 11:00 a.m. (Brussels time), on the applicable Interest Reset Date
for loans in euro to leading European banks for a period of time equivalent to
the Index Maturity specified on the face hereof commencing on that Interest
Reset Date in a principal amount not less than the equivalent of U.S.$1 million
in euro.
(iii) If the banks so selected by the Calculation Agent are not
quoting as described in (ii) above, the EURIBOR rate in effect for the
applicable period shall be the same as EURIBOR for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Euro-zone" means the region comprised of member states of the
European Union that adopt the single currency in accordance with the treaty
establishing the European Community (the "EC"), as amended by the treaty on
European Union (as so amended, the "Treaty").
Determination of the Federal Funds Rates. If the Base Rate
specified on the face hereof is the "Federal Funds Rate," for any Interest
Determination Date, the Federal Funds Rate with respect to this Note shall be
the rate on that date for federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)" as displayed on Bridge Telerate, Inc., or
any successor service, on page 120 or any other page as may replace page 120
on that service ("Telerate Page 120").
The following procedures shall be followed if the Federal Funds
Rate cannot be determined as described above:
(i) If the above rate is not published by 9:00 a.m., New York
City time, on the Calculation Date, the Federal Funds Rate shall be the rate on
that Interest Determination Date as published in the H.15 Daily Update under the
heading "Federal Funds/Effective Rate."
(ii) If that rate is not yet published in either H.15(519) or the
H.15 Daily Update by 3:00 p.m., New York City time, on the Calculation Date, the
Calculation Agent shall determine the Federal Funds Rate to be the arithmetic
mean of the rates for the last transaction in overnight federal funds by each of
three leading brokers of federal funds transactions in The City of New York
selected by the Calculation Agent (after consultation with the Issuer) prior to
9:00 a.m., New York City time, on that Interest Determination Date.
(iii) If the brokers selected by the Calculation Agent are not
quoting as mentioned above, the Federal Funds Rate relating to that Interest
Determination Date shall remain the Federal Funds Rate for the immediately
preceding Interest Reset Period, or, if there was no Interest Reset Period, the
rate of interest payable 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 based on London
interbank offered rate. The Calculation Agent shall determine "LIBOR" for each
Interest Determination Date as follows:
(i) As of the Interest Determination Date, LIBOR shall be either
(a) if "LIBOR Reuters" is specified as the Reporting Service on the face hereof,
the arithmetic mean of the offered rates for deposits in the Index Currency
having the Index Maturity designated on the face hereof, commencing on the
second London Banking Day immediately following that Interest Determination
Date, that appear on the Designated LIBOR Page, as defined below, as of 11:00
a.m., London time, on that Interest Determination Date, if at least two offered
rates appear on the Designated LIBOR Page; except that if the specified
Designated LIBOR Page, by its terms provides only for a single rate, that single
rate shall be used; or (b) if "LIBOR Telerate" is specified as the Reporting
Service on the face hereof, the rate for deposits in the Index Currency having
the Index Maturity designated on the face hereof, commencing on the second
London Banking Day immediately following that Interest Determination Date or, if
pounds sterling is the Index Currency, commencing on that Interest Determination
Date, that appears on the Designated LIBOR Page at approximately 11:00 a.m.,
London time, on that Interest Determination Date.
(ii) If (a) fewer than two offered rates appear and LIBOR Reuters
is specified on the face hereof, or (b) no rate appears and the face hereof
specifies either (x) LIBOR Telerate or (y) LIBOR Reuters and the Designated
LIBOR Page by its terms provides only for a single rate, then the Calculation
Agent shall 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 quotation 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 the Interest Determination Date or, if pounds sterling
is the Index Currency, commencing on that Interest Determination Date, to prime
banks in the London interbank market at approximately 11:00 a.m., London time,
on that Interest Determination Date and in a principal amount that is
representative of a single transaction in that Index Currency in that market at
that time.
(iii) If at least two quotations are provided, LIBOR determined
on that Interest Determination Date shall be the arithmetic mean of those
quotations. If fewer than two quotations are provided, LIBOR shall be determined
for the applicable Interest Reset Date as the arithmetic mean of the rates
quoted at approximately 11:00 a.m., London time, or some other time specified on
the face hereof, in the applicable principal financial center for the country of
the Index Currency on that Interest Reset Date, by three major banks in that
principal financial center selected by the Calculation Agent (after consultation
with the Issuer) for loans in the Index Currency to leading European banks,
having the Index Maturity specified on the face hereof and in a principal amount
that is representative of a single transaction in that Index Currency in that
market at that time.
(iv) If the banks so selected by the Calculation Agent are not
quoting as described in (iii) above, LIBOR in effect for the applicable period
shall be the same as LIBOR for the immediately preceding Interest Reset Period,
or, if there was no Interest Reset Period, the rate of interest payable shall be
the Initial Interest Rate.
The "Index Currency" means the currency specified on the face
hereof as the currency for which LIBOR shall be calculated, or, if the euro is
substituted for that currency, the Index Currency shall be the euro. If that
currency is not specified 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 its
designated successor, or (b) if LIBOR Telerate is designated as the Reporting
Service on the face hereof, the display on Bridge Telerate Inc., or any
successor service, on the page specified on the face hereof, or any other page
as may replace that page on that 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 on the
face hereof, LIBOR for the applicable Index Currency shall be determined as if
LIBOR Telerate were specified, and, if the U.S. dollar is the Index Currency,
as if Page 3750, had been specified.
Determination of Prime Rate. If the Base Rate specified on the
face hereof is "Prime Rate," for any Interest Determination Date, the Prime
Rate with respect to this Note shall be the rate on that date as published in
H.15(519) under the heading "Bank Prime Loan."
The following procedures shall be followed if the Prime Rate
cannot be determined as described above:
(i) If the rate is not published prior to 9:00 a.m., New York
City time, on the Calculation Date, then the Prime Rate shall be the rate on
that Interest Determination Date as published in H.15 Daily Update under the
heading "Bank Prime Loan."
(ii) If the rate is not published prior to 3:00 p.m., New York
City time, on the Calculation Date in either H.15(519) or the H.15 Daily Update,
then the Calculation Agent shall determine the Prime Rate to be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen USPRIME 1 Page, as defined below, as that bank's Prime Rate
or base lending rate as in effect for that Interest Determination Date.
(iii) If fewer than four rates appear on the Reuters Screen
USPRIME 1 Page for that Interest Determination Date, the Calculation Agent shall
determine the Prime Rate to 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 that Interest Determination Date by at least three major
banks in The City of New York selected by the Calculation Agent (after
consultation with the Issuer).
(iv) If the banks selected are not quoting as described in (iii)
above, the Prime Rate shall remain the Prime Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
"Reuters Screen USPRIME 1 Page" means the display designated as
page "USPRIME 1" on the Reuters Monitor Money Rates Service, or any successor
service, or any other page as may replace the USPRIME 1 Page on that service
for the purpose of displaying prime rates or base lending rates of major
United States banks.
Determination of Treasury Rate. If the Base Rate specified on
the face hereof is "Treasury Rate," the Treasury Rate with respect to this
Note shall be
(i) the rate from the Auction held on the applicable Interest
Determination Date (the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity specified on the face hereof as
that rate appears under the caption "INVESTMENT RATE" on the display on Bridge
Telerate, Inc., or any successor service, on page 56 or any other page as may
replace page 56 on that service ( "Telerate Page 56") or page 57 or any other
page as may replace page 57 on that service ( "Telerate Page 57"); or
(ii) if the rate described in (i) above is not published by 3:00
p.m., New York City time, on the Calculation Date, the Bond Equivalent Yield of
the rate for the applicable Treasury Bills as published in the H.15 Daily
Update, or other recognized electronic source used for the purpose of displaying
the applicable rate, under the caption "U.S. Government Securities/Treasury
Bills/Auction High;" or
(iii) if the rate described in (ii) above is not published by
3:00 p.m., New York City time, on the related Calculation Date, the Bond
Equivalent Yield of the Auction rate of the applicable Treasury Bills, announced
by the United States Department of the Treasury; or
(iv) in the event that the rate described in (iii) above is not
announced by the United States Department of the Treasury, or if the Auction is
not held, the Bond Equivalent Yield of the rate on the applicable Interest
Determination Date of Treasury Bills having the Index Maturity specified on the
face hereof published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market;" or
(v) if the rate described in (iv) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date of the applicable Treasury Bills as
published in H.15 Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market;" or
(vi) if the rate described in (v) above is not so published by
3:00 p.m., New York City time, on the related Calculation Date, the rate on the
applicable Interest Determination Date calculated by the Calculation Agent as
the Bond Equivalent Yield of the arithmetic mean of the secondary market bid
rates, as of approximately 3:30 p.m., New York City time, on the applicable
Interest Determination Date, of three primary United States government
securities dealers, which may include the agent or its affiliates, 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; or
(vii) if the dealers selected by the Calculation Agent are not
quoting as described in (vi), the Treasury Rate for the immediately preceding
Interest Reset Period, or, if there was no Interest Reset Period, the rate of
interest payable shall be the Initial Interest Rate.
The "Bond Equivalent Yield" means a yield calculated in
accordance with the following formula and expressed as a percentage:
D x N
Bond Equivalent Yield = -----------------
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury Bills quoted on
a bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the interest period for which interest
is being calculated.
Determination of CMT Rate. If the Base Rate specified on the
face hereof is the "CMT Rate," for any Interest Determination Date, the CMT
Rate with respect to this Note shall be the rate displayed on the Designated
CMT Telerate Page (as defined below) under the caption "... Treasury Constant
Maturities ... Federal Reserve Board Release H.15... Mondays Approximately
3:45 p.m.," under the column for the Designated CMT Maturity Index, as defined
below, for:
(1) the rate on that Interest Determination Date, if the
Designated CMT Telerate Page is 7051; and
(2) the week or the month, as applicable, ended immediately
preceding the week in which the related Interest Determination Date occurs, if
the Designated CMT Telerate Page is 7052.
The following procedures shall be followed if the CMT Rate
cannot be determined as described above:
(i) If that rate is no longer displayed on the relevant page, or
if not displayed by 3:00 p.m., New York City time, on the related Calculation
Date, then the CMT Rate shall be the Treasury Constant Maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519).
(ii) If the rate described in (i) is no longer published, or if
not published by 3:00 p.m., New York City time, on the related Calculation Date,
then the CMT Rate shall be the Treasury Constant Maturity Rate for the
Designated CMT Maturity Index or other United States Treasury rate for the
Designated CMT Maturity Index on the Interest Determination 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).
(iii) If the information described in (ii) is not provided by
3:00 p.m., New York City time, on the related Calculation Date, then the
Calculation Agent shall determine the CMT Rate to 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 ("Reference Dealers") in The City of New
York, which may include an agent or other affiliates of the Issuer, selected by
the Calculation Agent as described in the following sentence. The Calculation
Agent shall select five reference dealers (after consultation with the Issuer)
and shall eliminate 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 a remaining term to maturity
of not less than that Designated CMT Maturity Index minus one year. If two
Treasury Notes with an original maturity as described above 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 shall be used.
(iv) If the Calculation Agent cannot obtain three Treasury Notes
quotations as described in (iii) above, the Calculation Agent shall determine
the CMT Rate to 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, selected using the same method described in (iii) above, for
Treasury Notes with an original maturity equal to the number of years closest to
but not less than 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.
(v) If three or four (and not five) of the reference dealers are
quoting as described in (iv) above, then the CMT Rate shall be based on the
arithmetic mean of the offer prices obtained and neither the highest nor the
lowest of those quotes shall be eliminated.
(vi) If fewer than three reference dealers selected by the
Calculation Agent are quoting as described in (iv) above, the CMT Rate shall be
the CMT Rate for the immediately preceding Interest Reset Period, or, if there
was no Interest Reset Period, the rate of interest payable shall be the Initial
Interest Rate.
"Designated CMT Telerate Page" means the display on Bridge
Telerate, Inc., or any successor service, on the page designated on the face
hereof or any other page as may replace that page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519).
If no page is specified on the face hereof, the Designated CMT Telerate Page
shall be 7052, for the most recent week.
"Designated CMT Maturity Index" means the original period to
maturity of the U.S. Treasury securities, which is either 1, 2, 3, 5, 7, 10,
20 or 30 years, specified in an applicable pricing supplement for which the
CMT Rate shall be calculated. If no 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 (i) by 360 if the Base Rate is CD Rate,
Commercial Paper Rate, EURIBOR, Federal Funds Rate, Prime Rate or LIBOR
(except if the Index Currency is pounds sterling); (ii) by 365 if the Base
Rate is LIBOR and the Index Currency is pounds sterling; or (iii) by the
actual number of days in the year if the Base Rate is the Treasury Rate or the
CMT Rate. 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 The
City of New York 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.
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, the Issuer in its discretion may execute a new
Note of like tenor 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 or insolvency 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 modify or amend the provisions for conversion of any currency into
any other currency, or modify or amend the provisions for conversion or
exchange of the debt security for securities of the Issuer or other entities
(other than as provided in the antidilution provisions or other similar
adjustment provisions of the debt securities or otherwise in accordance with
the terms 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 the euro has been substituted for such
Specified Currency, the Issuer may at its option (or shall, if so required by
applicable law) without the consent of the holder of this Note effect the
payment of principal of, premium, if any, or interest on, any Note denominated
in such Specified Currency in euro in lieu of such Specified Currency in
conformity with legally applicable measures taken pursuant to, or by virtue
of, the treaty establishing the EC, as amended by the Treaty. Any payment
made under such circumstances in U.S. dollars or euro where the required
payment is in an unavailable Specified Currency will not constitute an Event
of Default. If such Market Exchange Rate is not then available to the Issuer
or is not published for a particular Specified Currency, the Market Exchange
Rate will be based on the highest bid quotation in The City of New York
received by the Exchange Rate Agent at approximately 11:00 a.m., New York City
time, on the second Business Day preceding the date of such payment from three
recognized foreign exchange dealers (the "Exchange Dealers") for the purchase
by the quoting Exchange Dealer of the Specified Currency for U.S. dollars for
settlement on the payment date, in the aggregate amount of the Specified
Currency payable to those holders or beneficial owners of Notes and at which
the applicable Exchange Dealer commits to execute a contract. One of the
Exchange Dealers providing quotations may be the Exchange Rate Agent unless
the Exchange Rate Agent is an affiliate of the Issuer. If those bid
quotations are not available, the Exchange Rate Agent shall determine the
market exchange rate at its sole discretion.
The "Exchange Rate Agent" shall be Morgan Stanley & Co.
Incorporated, unless otherwise indicated on the face hereof.
All determinations referred to above made by, or on behalf of,
the Issuer or by, or on behalf of, the Exchange Rate Agent shall be at such
entity's sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on holders of 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 ________________
(Minor) (Cust)
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]
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[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
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(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is
to be repaid, specify the portion thereof which the holder elects to have
repaid: _______________________; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the Notes
to be issued to the holder for the portion of the within Note not being repaid
(in the absence of any such specification, one such Note will be issued for
the portion not being repaid):______________________.
Dated: __________________________ _________________________________
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.
[SCHEDULE A] (8)
GLOBAL NOTE
SCHEDULE OF EXCHANGES
The initial principal amount of this Note is $__________. [In
accordance with the Unit Agreement dated _________ __,1999 among the Issuer,
The Chase Manhattan Bank, as Unit Agent, as Collateral Agent and as Trustee
under the Indentures referred to therein and the Holders from time to time of
the Units described therein, the following (A) reductions of the principal
amount of this Note by cancellation upon the application of such amount to the
settlement of Purchase Contracts or the exercise of Universal Warrants or for
any other reason or (B) exchanges of portions of this Note for an interest in
a Note that has been separated from a Unit (a "Separated Note") have been
made:](9) [The following (A) reductions of the principal amount of this Note
by cancellation upon the application of such amount to the settlement of
Purchase Contracts or the exercise of Universal Warrants or for any other
reason or (B) exchanges of an interest in a Note that is part of a Unit (an
"Attached Unit Note") for an interest in this Note have been made:](10)