FORM OF FLOATING RATE MEDIUM-TERM NOTE
Published on October 15, 2002
EXHIBIT 4.4
[FORM OF FACE OF SECURITY]
EMERSON ELECTRIC CO.
MEDIUM-TERM NOTE
[GLOBAL] FLOATING RATE NOTE
[REGISTERED [PRINCIPAL AMOUNT]
NO. FLR] 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.
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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 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 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 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; 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, and no interest on such
payment will accrue for the period from and after the Interest Payment Date,
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
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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 such Specified Currency other than U.S. dollars and/or is to be
paid in whole or in part in a 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 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
- ----------------------------
(1/) Applies for a Registered Note that is not in global form.
- -
(2/) Applies only for Registered Global Security.
- -
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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, or at least ten
Business Days prior to the Maturity Date or any redemption or repayment date,
for payments 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 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
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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.
5
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 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
8
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 (calculated with reference to a Base Rate and the Spread and/or
Spread Multiplier, if any) 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 (calculated with reference to a
Base Rate and the Spread and/or Spread Multiplier, if any); 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.
9
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 (or a higher Spread and/or Spread Multiplier), if any, for the
Extension Period by causing the Paying Agent to send notice of such higher
interest rate (or a higher Spread and/or Spread Multiplier), 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 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, 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 any
10
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.
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 by the Calculation
Agent using the applicable rate as of 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 next 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.
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 or other applicable state 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 specified on the face hereof, the Calculation Agent will be The
Bank of New York.
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
11
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 currency amounts used in or resulting from such calculation on this Note
will be rounded to the nearest minimum unit of such currency (e.g., nearest
cent), with one half of such unit (e.g., 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). However, 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.
"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 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").
The "INTEREST DETERMINATION DATE" for any Interest Reset Date means the
day the Calculation Agent will refer to when determining the new interest rate
at which a Floating Interest Rate will reset. 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 immediately 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 to LIBOR when
the Index Currency is euros) shall be the second TARGET Settlement Day
immediately 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 for LIBOR Notes for which
12
the Index Currency is euros) shall be the second London Banking Day immediately
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. 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 3:00 p.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 or another recognized electronic source 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
13
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 fewer than three 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 3:00 p.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 or
another recognized electronic source, 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:
Money Market Yield = D x 360 x 100
---------------
360(D x M)
14
where "D" refers to the applicable annual 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 Moneyline
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 on Telerate Page 248 by 11:00
a.m. (Brussels time), 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 euros that is representative of a single transaction in euros in that market
at that time.
(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 the EURIBOR rate then in effect on the Interest
Determination Date.
"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 Moneyline Telerate, Inc., or any
15
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 3:00 p.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)."
(ii) If that rate is not yet published in either H.15(519) or the H.15
Daily Update or another recognized electronic source 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
16
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
Interest Determination 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 Determination 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 the LIBOR rate then in effect on that Interest Determination Date.
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 Moneyline 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:
17
- If the rate is not published prior to 3:00 p.m., New York City time,
on the Calculation Date, then the Prime Rate will be the rate on such
Prime Interest Determination Date as published in H.15 Daily Update
opposite the caption "Bank Prime Loan."
- 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 H.15 Daily Update or
another recognized electronic source then the Calculation Agent will
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 US Prime 1 Page (as defined below) as such bank's prime rate or
base lending rate as in effect for that Prime Interest Determination
Date.
- If fewer than four such rates but more than one such rate appear on
the Reuters Screen US Prime 1 Page for the Prime Interest
Determination Date, the Calculation Agent will 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 such Prime Interest Determination Date by at
least two major money center banks in New York City selected by the
Calculation Agent (after consulting with Emerson).
- If fewer than two such rates appear on the Reuters Screen US Prime 1
Page, the Calculation Agent will determine the Prime Rate on the basis
of the rates furnished in New York City by three substitute banks or
trust companies organized and doing business under the laws of the
United States, or any State thereof, in each case having total equity
capital of at least $500,000,000 and being subject to supervision or
examination by Federal or State authority, selected by the Calculation
Agent (after consulting with Emerson) to provide such rate or rates.
- If the banks selected are not quoting as mentioned above, the Prime
Rate will remain the Prime Rate in effect on such Prime Interest
Determination Date.
"Reuters Screen US Prime 1 Page" means the display designated as page
"US Prime 1" on the Reuters Monitor Money Rates Service (or such other page as
may replace the US Prime 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
Moneyline 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 in the H.15
Daily Update or another recognized electronic source by 3:00 p.m., New York City
time, on the Calculation Date, the Bond Equivalent Yield (as defined below) of
the rate for the applicable Treasury Bills as published in the H.15 Daily
Update, or other recognized electronic source used for the
18
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 will remain the Treasury Rate then in
effect on that Interest Determination Date.
The "Bond Equivalent Yield" means a yield calculated in accordance with
the following formula:
Bond Equivalent Yield= x 100)
D x N
----------------------
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 "...
19
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 Designated CMT
Telerate Page is 7051 and the CMT Rate cannot be determined as described above:
(i) If that rate is no longer displayed on 7051, then the CMT Rate
shall be a percentage equal to the yield for United States Treasury securities
at "constant maturity" having the Index Maturity for such Interest Determination
Date as published in the relevant H.15(519) under the caption "Treasury Constant
Maturities."
(ii) If the rate described in (i) is no longer published, then the CMT
Rate shall be the Treasury Constant Maturity Rate for the Designated CMT
Maturity Index for 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 published in the relevant H.15(519).
(iii) If the Federal Reserve Board or the United States Department of
the Treasury does not publish a yield on United States Treasury securities at
"constant maturity" having the Index Maturity on such Interest Determination
Date, then the CMT Rate shall be calculated by the Calculation Agent and will be
a yield to maturity, based on the arithmetic mean of the secondary market bid
side prices as of approximately 3:30 p.m., New York City time, on the Interest
Determination Date, reported by three leading primary United States government
securities dealers ("REFERENCE DEALERS") in The City of New York 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 United States Treasury securities with an original maturity
equal to the Index Maturity, a remaining term to maturity no more than one year
shorter than the Index Maturity and is a principal amount that is representative
for a single transaction in such securities in such market at such time.
(iv) If the Calculation Agent cannot obtain three such quotations as
described in (iii) above, the CMT Rate shall be calculated by the Calculation
Agent and will be a yield to maturity based on the arithmetic mean of the
secondary market bid 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 United
States Treasury securities with an original maturity greater than the Index
Maturity, a remaining term to maturity closest to the Index Maturity and in a
principal amount that is representative for a single transaction in such market
at such time.
20
(v) If three or four (but 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 bid 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
in effect on such Interest Determination Date. If two such United States
Treasury securities with an original maturity greater than the Index Maturity
have remaining terms to maturity equally close to the Index Maturity, the quotes
for the Treasury security with the shorter original term to maturity will be
used.
The following procedures will be used if the Designated CMT Telerate
Page is 7052 and the CMT Rate cannot be determined as described above:
(i) If such rate is no longer displayed on 7052, then the CMT Rate will
be a percentage equal to the one-week or one-month, as applicable, average yield
for United States Treasury securities at "constant maturity" having the Index
Maturity for the week or month, as applicable, preceding such Interest
Determination Date as published in the relevant H.15(519) under the caption
"Treasury Constant Maturities."
(ii) If such rate is no longer published, then the CMT Rate will be the
one-week or one-month, as applicable, average yield for United States Treasury
securities at "constant maturity" having the Index Maturity as otherwise
announced by the Federal Reserve Bank of New York for the week or month, as
applicable, ended immediately preceding the week or month, as applicable, in
which such Interest Determination Date falls.
(iii) If the Federal Reserve Bank of New York does not publish a
one-week or one-month, as applicable, average yield on United States Treasury
securities at "constant maturity" having the Index Maturity for the applicable
week or month, then the CMT Rate for such Interest Determination Date will be
calculated by the Calculation Agent and will be a yield to maturity, based on
the arithmetic mean of the secondary market bid side prices as of approximately
3:30 p.m., New York City time reported by three Reference Dealers in The City of
New York selected by the Calculation Agent (from five such Reference Dealers
selected by the Calculation Agent, after consultation with the Company, and
eliminating the highest quotation (or in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the United States Treasury securities with an original maturity
equal to the Index Maturity, a remaining term to maturity no more than 1 year
shorter than the Index Maturity and in a principal amount that is representative
for a single transaction in such securities in such market at such time.
(iv) If the Calculation Agent cannot obtain three such quotations, the
CMT Rate will be calculated by the Calculation Agent and will be a yield to
maturity based on the arithmetic mean of the secondary market bid side prices as
of approximately 3:30 p.m., New York City time, on the Interest Determination
Date of three Reference Dealers in The City of New York (from five such
Reference Dealers selected by the Calculation Agent and eliminating the highest
quotation (or in the event of equality, one of the highest) and the lowest
quotation (or, in the event of equality, one of the lowest)), for United States
Treasury securities with an original
21
maturity greater than the Index Maturity and in a principal amount that is
representative for a single transaction in such securities in such market at
such time.
(v) If three or four (but not five) of such Reference Dealers are
quoting as described above, then the CMT Rate will be based on the arithmetic
mean of the bid prices obtained and neither the highest nor the lowest of such
quotes will be eliminated.
(vi) If fewer than three Reference Dealers selected by the Calculation
Agent are quoting as described herein, the CMT Rate will be the CMT Rate in
effect on such Interest Determination Date. If two such United States Treasury
securities with an original maturity greater than the Index Maturity having
remaining terms to maturity equally close to the Index Maturity, the quotes for
the Treasury security with the shorter original term to maturity will be used.
"DESIGNATED CMT TELERATE PAGE" means the display on Moneyline 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 on the face hereof 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.
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.
22
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
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.
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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 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.
24
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.
-----------------------------
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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 with the name
as written upon the face of the within Note in every
particular without alteration or enlargement or any change
whatsoever.
26
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Issuer to
repay the within Note (or portion thereof specified below) pursuant to its terms
at a price equal to the principal amount thereof, together with interest to the
Optional Repayment Date, to the undersigned at
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to be
repaid, specify the portion thereof which the holder elects to have
repaid:___________________ ; and specify the denomination or denominations
(which shall not be less than the minimum authorized denomination) of the Notes
to be issued to the holder for the portion of the within Note not being repaid
(in the absence of any such specification, one such Note will be issued for the
portion not being repaid):___________________ .
Dated:
-----------------------------------------
NOTICE: The signature on this Option to
Elect Repayment must correspond with the
name as written upon the face of the
within instrument in every particular
without alteration or enlargement.
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