FORM OF FIXED RATE MEDIUM-TERM NOTE
Published on October 15, 2002
EXHIBIT 4.3
[FORM OF FACE OF SECURITY]
EMERSON ELECTRIC, CO.
MEDIUM TERM NOTE
[GLOBAL] FIXED RATE NOTE
[REGISTERED REGISTERED
NO. FXR ] [PRINCIPAL
AMOUNT]
CUSIP:
Unless and until this Note is exchanged in whole or in part for Notes in
definitive form, this Note may not be transferred except as a whole by The
Depository Trust Company, a New York corporation ("DTC" or the "Depositary"), to
a nominee of DTC or by a nominee of DTC to DTC or another nominee of DTC or by
DTC or any nominee to a successor Depositary or a nominee of any successor
Depositary. Unless this certificate is presented by an authorized representative
of DTC 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
in such other name as is requested by an authorized representative of DTC (and
any payment is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered
owner hereof, Cede & Co., has an interest herein.
Emerson Electric, Co., a Missouri corporation (together with its
successors and assigns, the "ISSUER"), for value received, hereby promises to
pay to [Cede & Co.] or registered
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assignees, the principal sum of , on the Original Maturity
Date specified above (except to the extent redeemed or repaid prior to the
Original Maturity Date) or, if the maturity hereof is extended in accordance
with the procedures set forth below to an Extended Maturity Date, as defined
below, on such Extended Maturity Date (except to the extent previously redeemed
or repaid) (Original Maturity Date and Extended Maturity Date both a "MATURITY
DATE") and to pay interest thereon at the Interest Rate per annum specified
above or, if the interest rate herein is reset or re-established in connection
with an extension of maturity in accordance with the procedures specified on the
reverse hereof, at the interest rate per annum determined pursuant to such
procedures, from and including the Interest Accrual Date specified above until
the principal hereof is paid or duly made available for payment (except as
provided below), semiannually (unless otherwise specified on the face hereof) in
arrears on the fifteenth day of May and November in each year (unless otherwise
specified on the face hereof) (each such date an "INTEREST PAYMENT DATE")
commencing on the Interest Payment Date next succeeding the Interest Accrual
Date specified above, and at maturity (or on any redemption or repayment date);
provided, however, that if the Interest Accrual Date is less than fifteen
calendar days before an Interest Payment Date, interest payments will commence
on the second Interest Payment Date succeeding the Interest Accrual Date to the
holder of record of this Note on the Record Date with respect to such second
Interest Payment Date; provided, further, that if this Note is subject to
"Annual Interest Payments," interest payments shall be made annually in arrears
and the term "Interest Payment Date" shall be deemed to mean the fifteenth day
of November in each year; 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 below, such Interest Payment Date
shall be the following day that is a Business Day, and no interest on such
payment will accrue for the period from and after the Interest Payment Date; 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 the most recent Interest Payment
Date to which interest has been paid or duly provided for, or, if no interest
has been paid or duly provided for, from and including the Interest Accrual
Date, until the principal hereof has been paid or duly made available for
payment (except as provided below). The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, subject to certain
exceptions described herein, be paid to the person in whose name this Note (or
one or more predecessor Notes) is registered at the close of business on the
date 15 calendar days prior to such Interest Payment Date (whether or not a
Business Day) unless otherwise provided on the face hereof (each such date a
"RECORD DATE"); provided, however, that interest payable at maturity (or on any
redemption or repayment date) will be payable to the person to whom the
principal hereof shall be payable.
"BUSINESS DAY" means any day, other than a Saturday or Sunday that is
not a day on which banking institutions are authorized or required by law or
regulation to be closed in The City of New York, New York, or St. Louis,
Missouri, and, with respect to Notes denominated in a Specified Currency other
than U.S. dollars, is (a) not a day on which banking institutions are authorized
or required by law or regulation to close in the financial center of the country
issuing the Specified Currency (or, in the case of the lawful currency of the
member states of the
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European Union that adopt the single currency in accordance with the Treaty
establishing the European Community, as amended by the Treaty on European Union
(the "EURO"), the day is also not a TARGET Settlement Day (defined below)) and
(b) a day on which banking institutions in such financial center are carrying
out transactions in such Specified Currency, and (c) with respect to LIBOR
Notes, a London Banking Day. Unless otherwise specified on the face hereof,
"LONDON BANKING DAY" means any day (i) if the Index Currency is other than the
euro, on which dealings in deposits in such Index Currency are transacted in the
London interbank market or (ii) if the Index Currency is the euro, any day on
which the Trans European Automated Real Time Gross Settlement Express Transfer
(TARGET) System is open ("TARGET SETTLEMENT DAY").
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/or 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. Notwithstanding the
foregoing, (a) the Depositary, as holder of Book-Entry Notes, will be entitled
to receive payment of interest by wire transfer of immediately available funds
and (b) a holder of U.S. $10,000,000 (or the equivalent in a Specified Currency)
or more in aggregate principal amount of certificated 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 the holder is eligible to
receive payments by wire transfer and 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] (1/) [, 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] (2/) provided that, if payment of interest, principal or any premium
with regard to this Note is payable in euros, 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 or if such holder is not
eligible to receive payment by wire transfer, such payments will be made by
check payable in such Specified Currency mailed to the address of the person
entitled thereto as such
- -----------------------
(1/) Applies for a Registered Note that is not in global form.
- -
(2/) Applies only for Registered Global Security.
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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, for payments of interest, and at least ten
Business Days prior to the Maturity Date or any redemption or repayment date,
for payment of principal or premium, 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.
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 (defined on the reverse hereof) on the second Business Day
immediately preceding the payment 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. 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
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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 The Bank of New York, 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. Reference is hereby
made to the further provisions of this Note set forth on the reverse hereof,
which further provisions shall for all purposes have the same effect as if set
forth at this place. Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual signature,
this Note shall not be entitled to any benefit under the Indenture, as defined
on the reverse hereof, or be valid or obligatory for any purpose.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, Emerson Electric Co. has caused this instrument to
be signed by facsimile by its duly authorized officers and has caused a
facsimile of its corporate seal to be affixed hereunto or imprinted hereon.
EMERSON ELECTRIC CO.
[SEAL]
By:________________________________
By:________________________________
[FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION]
This is one of the Securities described in the within-mentioned Indenture.
Dated: THE BANK OF NEW YORK,
AS TRUSTEE
By:_______________________________
Authorized Signatory
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[FORM OF REVERSE OF SECURITY]
This Note is one of a duly authorized issue of Medium-Term Notes of the
Issuer having maturities of nine months or more from the date of issue (the
"Notes") [of the series hereinafter specified]. The Notes are issued under and
pursuant to an indenture dated as of December 10, 1998 (the "Indenture"), duly
executed and delivered by the Issuer to The Bank of New York, as Trustee (the
"Trustee"), to which Indenture and all indentures supplemental thereto reference
is hereby made for a description of the rights, limitations of rights,
obligations, duties and immunities thereunder of the Trustee, the Issuer and the
holders of the Notes and the terms upon which the Notes are, and are to be,
authenticated and delivered. The Notes may be issued in one or more series,
which different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest (if any) at different rates, may be
subject to different redemption provisions (if any), may be subject to different
sinking, purchase or analogous funds (if any), and may otherwise vary as
provided in the Indenture. This Note is [one of a series] designated as the %
[Notes] due [maturity date] of the Issuer, limited in aggregate principal amount
to $ . The Issuer has appointed The Bank of New York 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.
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. Except as otherwise provided herein, notice of
redemption shall be mailed, by first class mail, postage prepaid, to each holder
of the Notes designated for redemption at their addresses as the same shall
appear upon the books maintained by the Paying Agent 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 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, but in
any event, the principal amount of the Note remaining outstanding after
redemption must be an Authorized Denomination (as defined herein).
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
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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 (unless this Note was issued with original
issue discount, in which case the amount payable will otherwise be provided
for), together with interest accrued and unpaid hereon to the date of repayment.
Except as otherwise provided herein, 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 30 but not more than
60 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 third Business Day after the date of such
telegram, telex, facsimile transmission or letter; provided, however, 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 third
Business Day. Except as otherwise provided herein, exercise of such repayment
option by the holder hereof shall be irrevocable. In the event of repayment of
this Note in part only, the principal amount remaining after repayment must be
an Authorized Denomination and 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.
If so indicated on the face of this Note, this note is a Renewable Note
that will bear interest at the interest rate specified in this Note. This
Renewable Note will mature on the "Initial Maturity Date" specified on the face
hereof which will also be an Interest Payment Date, unless the Issuer extends
the maturity of all or any portion of the principal amount in accordance with
the procedures described below, which will apply unless we specify otherwise
herein.
On specified "Election Dates," which will be the May 15 and November 15
Interest Payment Dates in each year, unless otherwise specified herein, the
Issuer will extend the maturity of the Renewable Notes to the Interest Payment
Date occurring twelve months after such Election Date. However, the Issuer will
not so extend the maturity date if the holder thereof elects to terminate the
automatic extension of the maturity of the Renewable Notes or of any portion of
the Notes in the amount of an Authorized Denomination. To terminate the
automatic extension, a holder must deliver a notice to such effect to the Paying
Agent not less than nor more than a number of days prior to such Election Date,
as specified herein. A holder may exercise this option with respect to less than
the entire principal amount of the Renewable Notes; provided that the remaining
principal amount is at least in the amount of an Authorized Denomination.
Notwithstanding the foregoing, the Issuer may not extend the maturity
of the Renewable Notes beyond the "Final Maturity Date," as specified herein. If
the holder elects to terminate the automatic extension of the maturity of any
portion of the principal amount of the Renewable Notes and does not revoke this
election, such portion will become due and payable on the Interest Payment Date
falling six months (unless another period is specified herein) after the
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Election Date prior to which the holder made such election. To revoke an
election to terminate the automatic extension of maturity as to any portion of
the Renewable Notes having a principal amount in an Authorized Denomination a
holder must deliver a notice to such effect to the Paying Agent on any day
following the effective date of the election to terminate the automatic
extension of maturity and prior to the date 15 days before the date on which
such portion would otherwise mature. A holder may make such a revocation for
less than the entire principal amount of the Renewable Notes for which the
automatic extension of maturity has been terminated; provided that the principal
amount of the Renewable Notes for which the automatic extension of maturity has
been terminated and for which such a revocation has not been made is at least in
the amount of an Authorized Denomination. Notwithstanding the foregoing, a
holder may not make a revocation during the period from and including a Record
Date to but excluding the immediately succeeding Interest Payment Date.
An election to terminate the automatic extension of the maturity of the
Renewable Notes, if not revoked as described above by the holder making the
election or any subsequent holder, will be binding upon such subsequent holder.
The Issuer may redeem the Renewable Notes in whole or in part at its
option on the Interest Payment Dates in each year specified herein, commencing
with the Interest Payment Date specified herein, at a redemption price as stated
herein, together with accrued and unpaid interest to the date of redemption.
Notwithstanding anything to the contrary herein, notice of redemption will be
provided by mailing a notice of such redemption to each holder by first class
mail, postage prepaid, at least 180 days prior to the date fixed for redemption.
If so indicated on the face of this Note, the Issuer has the option to
extend the Original Maturity Date hereof for one or more periods of one or more
whole years (each an "EXTENSION PERIOD") up to but not beyond the Final Maturity
Date specified on the face hereof and in connection therewith to establish a new
interest rate and new redemption provisions for the Extension Period.
The Issuer may exercise such option by notifying the Paying Agent of
such exercise at least 45 but not more than 60 days prior to the Original
Maturity Date or, if the maturity hereof has already been extended, prior to the
maturity date then in effect (an "EXTENDED MATURITY DATE"), such notice to be
accompanied by the form of the Extension Notice referred to below. No later than
38 days prior to the Original Maturity Date or an Extended Maturity Date, as the
case may be (each, a "MATURITY DATE"), the Paying Agent will mail to the holder
hereof a notice (the "EXTENSION NOTICE") relating to such Extension Period, by
first class mail, postage prepaid, setting forth (a) the election of the Issuer
to extend the maturity of this Note; (b) the new Extended Maturity Date; (c) the
interest rate applicable to the Extension Period; and (d) the provisions, if
any, for redemption during the Extension Period, including the date or dates on
which, the period or periods during which and the price or prices at which such
redemption may occur during the Extension Period. Upon the mailing by the Paying
Agent of an Extension Notice to the holder of this Note, the maturity hereof
shall be extended automatically, and, except as modified by the Extension Notice
and as described in the next paragraph, this Note will have the same terms it
had prior to the mailing of such Extension Notice.
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Notwithstanding the foregoing, not later than 10:00 A.M., New York City
time, on the twentieth calendar day prior to the Maturity Date in effect
immediately preceding the mailing of the applicable Extension Notice (or if such
day is not a Business Day, not later than 10:00 A.M., New York City time, on the
immediately succeeding Business Day), the Issuer may, at its option, revoke the
interest rate provided for in such Extension Notice and establish a higher
interest rate, if any, for the Extension Period by causing the Paying Agent to
send notice of such higher interest rate, if any, to the holder of this Note by
first class mail, postage prepaid, or by such other means as shall be agreed
between the Issuer and the Paying Agent. Such notice shall be irrevocable. All
Notes with respect to which the Maturity Date is extended in accordance with an
Extension Notice will bear such higher interest rate (or, in the case of a
Floating Rate Note, such higher Spread and/or Spread Multiplier) if any, for the
Extension Period, whether or not tendered for repayment.
If the Issuer elects to extend the maturity hereof, the holder of this
Note will have the option to require the Issuer to repay this Note on the
Maturity Date in effect immediately preceding the mailing of the applicable
Extension Notice at a price equal to the principal amount hereof plus any
accrued and unpaid interest to such date. In order for this Note to be so repaid
on such Maturity Date, the holder hereof must follow the procedures set forth
above for optional repayment, except that the period for delivery of this Note
or notification to the Paying Agent shall be at least 25 but not more than 35
days prior to the Maturity Date in effect immediately preceding the mailing of
the applicable Extension Notice and except that if the holder hereof has
tendered this Note for repayment pursuant to this paragraph he may, by written
notice to the Paying Agent, revoke any such tender for repayment until 3:00
P.M., New York City time, on the twentieth calendar day prior to the Maturity
Date then in effect (or, if such day is not a Business Day, until 3:00 P.M., New
York City time, on the immediately succeeding Business Day).
If the face of this Note so indicates, then the Issuer will have a
conditional right to shorten maturity as described in this paragraph. Upon the
occurrence of a Tax Event (defined below), the Issuer shall have the right to
shorten the maturity of the Notes without the consent of the Holders of the
Notes. The Issuer may shorten the maturity to the minimum extent required, in
the opinion of nationally recognized tax counsel, to allow the Issuer to deduct
interest paid by the Issuer on the Notes for United States federal income tax
purposes. If the Issuer cannot obtain an opinion as to such a minimum period,
the minimum extent so required to maintain its interest deduction (to the extent
interest is deductible under current law) will be determined in good faith by
the Finance Committee of the Issuer's Board of Directors, after receipt of an
opinion of such counsel regarding the applicable legal standards. If the Issuer
exercises this right to shorten the maturity of the Notes, the amount payable on
the new maturity date will be equal to 100% of the principal amount of the Notes
plus interest accrued on the Notes to the new maturity date. If the Issuer
elects to exercise its right to shorten the maturity of the Notes upon the
occurrence of a Tax Event, the Issuer shall mail a notice to each Holder of
Notes by first-class mail not more than 60 days after the occurrence of the Tax
Event, stating the new maturity date of the Notes. This notice shall be
effective immediately upon mailing.
"TAX EVENT" means that the Issuer shall have received an opinion of
nationally recognized tax counsel to the effect that as a result of (a) any
amendment to, clarification of, or change (including any announced prospective
amendment, clarification or change) in any law, or
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any regulation thereunder, of the United States, (b) any judicial decision,
official administrative pronouncement, ruling, regulatory procedure, regulation,
notice or announcement, including any notice or announcement of intent to adopt
or promulgate any ruling, regulatory procedure or regulation, or (c) any
amendment to, clarification of, or change in any official position with respect
to, or any interpretation of, an administrative or judicial action described
above or a law or regulation of the United States that differs from the then
generally accepted position or interpretation, that occurs on or after the date
of issuance of the Notes there is more than an insubstantial increase in the
risk that any portion of the interest paid by the Issuer on the Notes is not, or
will not be within 90 days of the opinion, fully deductible by the Issuer for
United States federal income tax purposes.
Interest payments on this Note will include interest accrued to but
excluding the Interest Payment Dates or the Maturity Date (or any earlier
redemption or repayment date), as the case may be. Unless otherwise specified on
the face hereof, interest payments for this Note will be computed and paid on
the basis of a 360 day year of twelve 30 day months.
This Note and all the obligations of the Issuer hereunder are direct,
unsecured obligations of the Issuer and rank without preference or priority
among themselves and pari passu with all other existing and future unsecured and
unsubordinated indebtedness of the Issuer, subject to certain statutory
exceptions in the event of liquidation upon insolvency.
This Note, and any Note or Notes issued upon transfer or exchange
hereof, is issuable only in fully registered form, without coupons, and, (i) if
denominated in U.S. dollars, is issuable only in denominations of U.S. $1,000
and any amount in excess thereof which is an integral multiple of U.S. $1,000,
and (ii) 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 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 "AUTHORIZED
DENOMINATIONS").
In case an Event of Default with respect to the Notes shall have
occurred and be continuing, the principal hereof may be declared, and upon such
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Issuer and the
Trustee, with the consent of the Holders of not less than a majority in
aggregate principal amount of the Notes at the time Outstanding (as defined in
the Indenture) of all series to be affected (voting as one class), evidenced as
in the Indenture provided, to execute supplemental indentures adding any
provisions to or changing in any manner or eliminating any of the provisions of
the Indenture or of any supplemental indenture or modifying in any manner the
rights of the Holders of the Notes of each such series; provided, however, that
no such supplemental indenture shall (i) extend the final maturity of any Note,
or reduce the principal amount thereof or any premium thereon, or reduce the
rate or extend the time of payment of any interest thereon, or reduce any amount
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payable on redemption thereof or reduce the amount of the principal of an
Original Issue Discount Note (as defined in the Indenture) payable upon
acceleration thereof or the amount thereof provable in bankruptcy, or impair or
affect the rights of any Holder to institute suit for the payment thereof, or,
if the Notes provide therefor, any right of repayment or redemption at the
option of the Holder, without the consent of the Holder of each Note so
affected, or (ii) reduce the aforesaid percentage of Notes, the Holders of which
are required to consent to any such supplemental indenture, without the consent
of the Holder of each Note affected. It is also provided in the Indenture that,
with respect to certain defaults or Events of Default regarding the Notes of any
series, prior to any declaration accelerating the maturity of such Notes, the
Holders of a majority in aggregate principal amount Outstanding of the Notes of
such series (or, in the case of certain defaults or Events of Default, all or
certain series of the Notes) may on behalf of the Holders of all the Notes of
such series (or all or certain series of the Notes, as the case may be) waive
any such past default or Event of Default and its consequences. The preceding
sentence shall not, however, apply to a default in the payment of the principal
of or premium, if any, or interest on any of the Notes. Any such consent or
waiver by the Holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such Holder and upon all future Holders and
owners of this Note and any Notes which may be issued in exchange or
substitution herefor, irrespective of whether or not any notation thereof is
made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Issuer, which is
absolute and unconditional, to pay the principal of and any premium and interest
on this Note in the manner, at the respective times, at the rate and in the coin
or currency herein prescribed.
The Notes may be represented by one or more Global Securities (each, a
"GLOBAL NOTE") deposited with the Depositary and registered in the name of the
nominee of the Depositary, with certain limited exceptions. So long as DTC or
any successor Depositary or its nominee is the registered Holder of a Global
Note, DTC, such Depositary or such nominee, as the case may be, will be
considered the sole owner or Holder of the Notes represented by such Global Note
for all purposes under the Indenture and the Notes. Beneficial interest in the
Notes will be evidenced only by, and transfer thereof will be effected only
through, records maintained by DTC and its participants. Except as provided
below, an owner of a beneficial interest in a Global Note will not be entitled
to have Notes represented by such Global Note registered in such owner's name,
will not receive or be entitled to receive physical delivery of the Notes in
certificated form and will not be considered the owner or Holder thereof under
the Indenture.
No Global Note may be transferred except as a whole by the Depositary
to a nominee of the Depositary. Global Notes are exchangeable for certificated
Notes only if (x) the Depositary notifies the Issuer that it is unwilling or
unable to continue as Depositary for such Global Notes or if at any time the
Depositary ceases to be a clearing agency registered under the Securities
Exchange Act of 1934, as amended, and the Issuer fails within 90 days thereafter
to appoint a successor, (y) the Issuer in its sole discretion determines that
such Global Notes shall be so exchangeable or (z) there shall have occurred and
be continuing an Event of Default or an event which with the giving of notice or
lapse of time or both would constitute an Event of Default with respect to the
Notes represented by such Global Notes. In such event, the Issuer will issue
Notes in certificated form in exchange for such Global Notes. In any such
instance, an owner of
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a beneficial interest in the Global Notes will be entitled to physical delivery
in certificated form of Notes equal in principal amount to such beneficial
interest and to have such Notes registered in its name. Notes so issued in
certificated form will be issued in denominations of $1,000 or any integral
multiple thereof, and will be issued in registered form only, without coupons.
The Issuer, the Trustee and any authorized agent of the Issuer or the
Trustee may deem and treat the registered Holder hereof as the absolute owner of
this Note (whether or not this Note shall be overdue and notwithstanding any
notation of ownership or other writing hereon), for the purpose of receiving
payment of, or on account of, the principal hereof and premium, if any, and
subject to the provisions on the face hereof, interest hereon, and for all other
purposes, and neither the Issuer nor the Trustee nor any authorized agent of the
Issuer or the Trustee shall be affected by any notice to the contrary.
No recourse under or upon any obligation, covenant or agreement of the
Issuer in the Indenture or any indenture supplemental thereto or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, officer or director, as such, of the
Issuer or of any successor corporation, either directly or through the Issuer or
any successor corporation, under any rule of law, statute or constitutional
provision or by the enforcement of any assessment or by any legal or equitable
proceeding or otherwise, all such liability being expressly waived and released
by the acceptance hereof and as part of the consideration for the issue hereof.
The acceptance of this Note shall be deemed to constitute the consent
and agreement of the Holder hereof to all of the terms and provisions of the
Indenture. Terms used herein which are defined in the Indenture but which are
not otherwise defined herein shall have the respective meanings assigned thereto
in the Indenture.
THE INDENTURE AND THE NOTES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICTS
OF LAW PRINCIPLES THEREOF.
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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;
UNIF GIFT MIN ACT - Custodian
----------- ---------------
(Cust) (Minor)
Under Uniform Gifts to Minors Act
-----------------------------------------
State
Additional abbreviations may also be used though not in the above list.
--------------------
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FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ----------------------------------------------------------
- ----------------------------------------------------------
- ----------------------------------------------------------
(PLEASE PRINT OR TYPE NAME AND ADDRESS INCLUDING ZIP CODE, OF ASSIGNEE
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing such person attorney to transfer such note on the books of the
Issuer, with full power of substitution in the premises.
Dated:
------------------------------
------------------------------
NOTICE: The signature to this assignment
must correspond to the name as written upon
the face of this Note in every particular,
without alteration or any change whatsoever;
signature(s) must be guaranteed by an
eligible guarantor institution (banks, stock
brokers, savings and loan associations and
credit unions with membership in an approved
signature guarantee medallion program)
pursuant to Securities and Exchange
Commission Rule 17Ad 15.
15
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or portion thereof specified below) pursuant to its terms
at a price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name,
address and telephone number of the undersigned,
and name of contact person, if any)
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 portions 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 to the foregoing Election must correspond to the name as
written upon the face of this Note in every particular, without alteration or
any change whatsoever; signature(s) must be guaranteed by an eligible guarantor
institution (banks, stock brokers, savings and loan associations and credit
unions with membership in an approved signature guarantee medallion program)
pursuant to Securities and Exchange Commission Rule 17Ad 15.
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