THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (55 WATER
STREET, NEW YORK, NEW YORK) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN
THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT IS MADE TO CEDE & CO., ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
CERTIFICATED FORM, THIS SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.
No. R-1 REGISTERED PRINCIPAL
AMOUNT: $ 200,000,000
CUSIP No.: 224044 AZ 0
<TABLE>
<S> <C> <C>
Cox Communications, Inc.
FLOATING RATE MOPPRSSM/CHEERSSM
ORIGINAL ISSUE DATE: INTEREST RATE STATED MATURITY DATE:
November 7, 2000 TO INITIAL MANDATORY TENDER November 7, 2012, subject to
DATE: LIBOR plus 0.70% extension as provided herein.
INITIAL MANDATORY TENDER DATE: INTEREST RATE
November 7, 2002 OR RATES ON AND AFTER THE INITIAL
MANDATORY TENDER DATE: To be
determined as provided herein and set
forth in the records of the Trustee,
and such rates set forth in the
Trustee's records shall constitute a
part of this Security.
<PAGE>
INITIAL PERIOD: From, and including, INTEREST PAYMENT DATE(S) FOR INITIAL INTEREST RESET DATES FOR INITIAL
the Original Issue Date to, but PERIOD: February 7, May 7, August 7 and PERIOD: February 7, May 7,
excluding, the Initial Mandatory Tender November 7 of each year, commencing August 7 and November 7 of each
Date. February 7, 2001. year, commencing November 7,
2000.
</TABLE>
Cox Communications, Inc., a Delaware corporation (the "Company"), which
term includes any successor under the Indenture hereinafter referred to, for
value received, hereby promises to pay to Cede & Co., a nominee of The
Depository Trust Company ("DTC"), or its registered assigns, the principal
amount of TWO HUNDRED MILLION DOLLARS ($200,000,000), on the Stated Maturity
Date specified above (or any earlier redemption date or repurchase date) (each
such Stated Maturity Date, redemption date or repurchase date being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at the interest rate per annum specified
above to, but excluding, November 7, 2002 (the "Initial Mandatory Tender Date"),
and thereafter, subject to the terms and conditions set forth herein, at the
interest rate or interest rates determined in accordance with the procedures set
forth below, until the principal hereof is paid or duly made available for
payment. The Company will pay interest in arrears on each Interest Payment Date
(as defined below), commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above.
The Company is obligated to make payment of principal, premium, if any,
and interest in respect of this Security in United States dollars.
Reference is hereby made to the further provisions of this Security set
forth following the Trustee's Certificate of Authentication (the "Certificate of
Authentication") set forth below.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
2
<PAGE>
IN WITNESS WHEREOF, Cox Communications, Inc. has caused this Security
to be duly executed manually or by facsimile.
Date: November 7, 2000
Cox Communications, Inc.
(SEAL)
By:
----------------------------------
Name: Dallas S. Clement
Title: Senior Vice President
of Strategy & Development and
Treasurer
By:
------------------------------------
Name: Jimmy W. Hayes
Title: Executive Vice President,
Finance and Administration and
Chief Financial Officer
CERTIFICATE OF AUTHENTICATION
This is one of the Debt Securities of the series designated therein
referred to in the within-mentioned Indenture.
Dated: November 7, 2000
THE BANK OF NEW YORK,
As Trustee
By: __________________________________
Authorized Signatory
3
<PAGE>
Cox Communications, Inc.
FLOATING RATE MOPPRSSM/CHEERSSM
1. Definitions. The following terms, as used herein, have the following meanings
unless the context or use clearly indicates another or different meaning or
intent. Capitalized terms used and not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
"Additional Mandatory Tender Date" shall have the meaning assigned to
it in Section 6 hereof.
"Adjusted Dollar Price" shall mean, with respect to the Additional
Mandatory Tender Date, the Dollar Price as of the Initial Mandatory Tender Date
(determined by the Remarketing Dealer or, if applicable, the Remarketing
Dealers, for the Initial Mandatory Tender Date as if the Initial Mandatory
Tender Date were the only Mandatory Tender Date) plus the product of (i) such
Dollar Price as of the Initial Mandatory Tender Date, (ii) a rate equal to the
greater of (a) the weighted average per annum of the Short Term Rate for the
Short Term Spread Period or (b) the weighted average per annum of LIBOR with an
Index Maturity equal to the applicable Interest Reset Period for the Short Term
Spread Period and reset on the designated Interest Reset Dates for such period
and (iii) the number of days in the Short Term Spread Period divided by 360.
"Base Rate" shall mean 5.742% per annum.
"Beneficial Owners" shall mean, for Securities in book-entry form,
persons who acquire an interest in the Securities which is reflected on the
records of DTC through its participants.
"Business Day" shall mean any day other than a Saturday or Sunday or a
day on which banking institutions or trust companies in The City of New York are
authorized or required by law, regulation or executive order to close and, in
case LIBOR is the applicable Floating Rate Basis, any such day that is also a
London Business Day.
"Calculation Agent" shall mean the calculation agent or agents
appointed by the Company from time to time to perform the duties of calculation
agent in accordance with the terms of the Securities and, as the case may be,
the Remarketing Agreements or the Remarketing Reset Agreement.
"Calculation Date" shall have the meaning assigned to it in Section 15
hereof.
"Chase" shall mean Chase Securities Inc. and its successors and
permitted assigns under the Chase Remarketing Agreement.
"Chase Remarketing Agreement" shall mean the remarketing agreement,
dated as of November 7, 2000, between the Company and Chase, as such agreement
may be amended or supplemented, which sets forth, among other things, the rights
and obligations of Chase as a Remarketing Dealer and Calculation Agent.
4
<PAGE>
"Comparable Treasury Issue" shall mean with respect to any optional
redemption of Securities after the remarketing thereof in the MOPPRS/CHEERS
Mode, the United States Treasury security or securities selected by the
Remarketing Dealer or Dealers or, as the case may be, the Remarketing Reset
Agent as having an actual or interpolated maturity comparable to the remaining
term of the Securities subject to redemption that would be utilized, at the time
of selection and in accordance with customary financial practice, in pricing new
issues of corporate debt securities of comparable maturity to the remaining term
of the Securities.
"Comparable Treasury Issues" shall mean, with respect to the Initial
Mandatory Tender Date, the United States Treasury benchmark on-the-run security
or securities selected by the Remarketing Dealer or Dealers as having an actual
maturity comparable to the remaining term to the Stated Maturity Date of the
Securities being purchased.
"Comparable Treasury Price" shall mean (1) with respect to the Initial
Mandatory Tender Date, (a) the offer prices for the Comparable Treasury Issues
(expressed in each case as a percentage of its principal amount) on the
MOPPRS/CHEERS Spread Determination Date preceding the Initial Mandatory Tender
Date, as set forth on "Telerate Page 500" (or such other page as may replace
Telerate Page 500) or (b) if such page (or any successor page) is not displayed
or does not contain such offer prices on such date, (i) the average of the
Reference Treasury Dealer Quotations for the Initial Mandatory Tender Date,
after excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (ii) if the Remarketing Dealer obtains or, if applicable, the
Remarketing Dealers obtain, fewer than four such Reference Treasury Dealer
Quotations, the average of all such Reference Treasury Dealer Quotations, and
(2) with respect to any optional redemption date applicable to any optional
redemption of the Securities after the remarketing thereof in the MOPPRS/CHEERS
Mode, (a) the average of the applicable Reference Treasury Dealer Quotations for
such redemption date, after excluding the highest and lowest of such applicable
Reference Treasury Dealer Quotations, or (b) if the Trustee obtains fewer than
four such Reference Treasury Dealer Quotations, the average of all such
Reference Treasury Dealer Quotations.
"Defaulted Interest" shall have the meaning assigned to it in Section 3
hereof.
"DTC" shall mean The Depository Trust Company or its nominees or
successors.
"DTC Participant" shall mean any person that has an account with DTC
through which Beneficial Owners acquire, directly or indirectly, an interest in
the Securities.
"Dollar Price" shall mean, with respect to the Securities (or
applicable portion thereof), the present value determined by the Remarketing
Dealer or, if applicable, the Remarketing Dealers on the third Business Day
preceding the Initial Mandatory Tender Date (whether or not such date is the
only Mandatory Tender Date), as of the Initial Mandatory Tender Date, of the
Remaining Scheduled Payments discounted to the Initial Mandatory Tender Date, on
a semiannual basis (assuming a 360-day year consisting of twelve 30-day months),
at the Treasury Rate; provided that in the case of the Additional Mandatory
Tender Date, the Dollar Price shall be the Adjusted Dollar Price.
5
<PAGE>
"Fixed Interest Determination Date" shall have the meaning assigned to
it in Section 13 hereof.
"Fixed Rate" shall mean any interest rate determined by reference to
the Base Rate or a Fixed Rate Basis.
"Fixed Rate Basis" shall be the semiannual equivalent yield to maturity
or interpolated yield to maturity (on a day count basis) determined by 1:00
p.m., New York City time, on the MOPPRS/CHEERS Spread Determination Date for the
MOPPRS/CHEERS Mode or, as the case may be, on the Fixed Interest Determination
Date for any Subsequent Spread Period (expressed as a bond equivalent, on the
basis of a year of 365 or 366 days, as applicable, and applied on a daily basis)
of the applicable United States Treasury security (or securities in the case of
interpolation), selected by the Calculation Agent, as having a maturity or
interpolated maturity comparable to the duration selected for the following
Spread Period, which would be used in accordance with customary financial
practice in pricing new issues of corporate debt securities of comparable
maturity to the duration selected for the following Spread Period.
"Floating Rate" shall mean any interest rate determined by reference to
a Floating Rate Basis.
"Floating Rate Basis" shall have the meaning assigned to it in Section
15 hereof.
"H.15 (519)" means the weekly statistical release designated as
H.15(519), or any successor publication, published by the Board of Governors of
the Federal Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available
through the world-wide-web site 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.
"Indenture" shall have the meaning assigned to in Section 2 hereof.
"Index Maturity" shall have the meaning assigned to it in Section 15
hereof.
"Initial Mandatory Tender Date" shall mean November 7, 2002.
"Initial Mode Election Date" shall mean the fourth Business Day
immediately preceding the Initial Mandatory Tender Date.
"Initial Period" shall have the meaning assigned to it in Section 4 of
this Security.
"Interest Determination Date" shall have the meaning assigned to it in
Section 15 hereof.
"Interest Payment Dates" shall mean each Interest Payment Date
specified for the applicable Spread Period, each Tender Date and Maturity Date.
"Interest Reset Dates" shall have the meaning assigned to it in Section
4 hereof.
6
<PAGE>
"London Business Day" shall mean any day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
"Make-Whole Amount" shall mean, with respect to any optional redemption
of Securities after the remarketing thereof in the MOPPRS/CHEERS Mode, an amount
equal to the greater of (i) 100% of its principal amount and (ii) the sum of the
present values of the remaining scheduled payments of principal and interest
thereon (exclusive of interest accrued to the date of redemption) discounted to
the date of such redemption on a semiannual basis (assuming a 360-day year
consisting of twelve 30-day months) at the applicable Treasury Yield plus the
Reinvestment Spread, plus accrued interest to the date of redemption.
"Mandatory Tender Date" shall mean the Initial Mandatory Tender Date or
the Additional Mandatory Tender Date, as the context requires.
"Maturity Date" shall mean the Stated Maturity Date or any date prior
to the Stated Maturity Date on which the principal amount of Securities (or any
portion thereof) becomes due and payable by the Company, whether by reason of
redemption, repurchase or otherwise.
"Merrill Lynch" shall mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated and its successors and permitted assigns under the Merrill Lynch
Remarketing Agreement, or as the case may be, the Remarketing Reset Agreement.
"Merrill Lynch Remarketing Agreement" shall mean the remarketing
agreement, dated as of November 7, 2000, between the Company and Merrill Lynch,
as such agreement may be amended or supplemented, which sets forth, among other
things, the rights and obligations of Merrill Lynch as a Remarketing Dealer and
a Calculation Agent.
"Mode Terms Designation Date" shall mean, (a) in the case of the Short
Term Mode, if applicable, the fourth Business Day immediately preceding the
Initial Mandatory Tender Date, (b) in the case of the MOPPRS/CHEERS Mode, the
fourth Business Day immediately preceding the Mandatory Tender Date for
remarketing in the MOPPRS/CHEERS Mode and (c) in the case of the Remarketing
Reset Mode, the eighth Business Day immediately preceding the Optional Tender
Date commencing a Subsequent Spread Period.
"Money Market Yield" means a yield calculated in accordance with the
following formula and expressed as a percentage:
[Money Market Yield equals D times 360 divided by 360 minus
(D times M), all multiplied by 100.]
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the interest period for which interest is being calculated.
"MOPPRS/CHEERS Mode" shall mean the mode in which this Security bears
interest during the MOPPRS/CHEERS Spread Period at the MOPPRS/CHEERS Rate.
7
<PAGE>
"MOPPRS/CHEERS Rate" shall be equal to the sum of the Fixed Rate Basis
(provided that, if no Optional Tender Date is designated, the Base Rate shall be
used in place of the Fixed Rate Basis) plus the MOPPRS/CHEERS Spread or, as the
case may be, the Floating Rate Basis plus or minus the MOPPRS/CHEERS Spread.
"MOPPRS/CHEERS Spread" shall be the lowest bid indication (if
positive), or highest bid indication (if negative), expressed as a spread (in
the form of a percentage or in basis points) above (if positive) or below (if
negative) either (i) the Fixed Rate Basis (or, if applicable, the Base Rate), if
the Company has selected a Fixed Rate, or (ii) the Floating Rate Basis selected
by the Company, if the Company has selected a Floating Rate, in either case,
obtained by the Remarketing Dealer or, if applicable, the Remarketing Dealers,
by 3:30 p.m., New York City time, on the MOPPRS/CHEERS Spread Determination Date
from the bids quoted by five Reference Corporate Dealers for the full aggregate
principal amount of the Securities to be remarketed by the Remarketing Dealer
or, if applicable, the Remarketing Dealers, at the Dollar Price, or, as the case
may be, the Adjusted Dollar Price, but assuming (i) an issue date equal to the
Mandatory Tender Date for remarketing in the MOPPRS/CHEERS Mode, with settlement
on such date without accrued interest, (ii) a maturity date equal to the initial
Optional Tender Date (or, if no such date is designated, the Stated Maturity
Date, as such date may be extended) of the Securities, (iii) if applicable, the
Securities are subject to redemption upon the terms specified on the Mode Terms
Designation Date for the MOPPRS/CHEERS Mode and (iv) a stated annual interest
rate, reset, if applicable, on the designated Interest Reset Dates, if any, and
payable on the designated Interest Payment Dates, equal to the Fixed Rate Basis
(or, if applicable, the Base Rate), in the case of a Fixed Rate, or the
applicable Floating Rate Basis, in the case of a Floating Rate, in each case
plus or minus the spread bid by the applicable Reference Corporate Dealers. If
fewer than five Reference Corporate Dealers bid as described above, then the
MOPPRS/CHEERS Spread shall be the lowest (if positive) or highest (if negative)
of such bid indications obtained as described above, subject to the Remarketing
Dealer or Dealers receiving at least two bids.
"MOPPRS/CHEERS Spread Determination Date" shall mean the third Business
Day immediately preceding (i) the Initial Mandatory Tender Date or, (ii) if the
Securities initially are remarketed in the Short Term Mode, the Additional
Mandatory Tender Date, in the event that the Securities are remarketed in the
MOPPRS/CHEERS Mode.
"MOPPRS/CHEERS Spread Period" shall have the meaning assigned to it in
Section 10 hereof.
"Notice Date" shall have the meaning assigned to it in Section 13
hereof.
"Notification Date" shall have the meaning assigned to it in Section 5
hereof.
"Optional Redemption Price" shall be the greater of (i) 100% of the
principal amount of the Securities (or applicable portion thereof) and (ii) the
Dollar Price, in the case of the Initial Mandatory Tender Date, or the Adjusted
Dollar Price, in the case of the Additional Mandatory Tender Date, plus in
either case accrued and unpaid interest from the Mandatory Tender Date on the
principal amount being redeemed to the date of redemption.
8
<PAGE>
"Optional Tender Date" shall have the meaning assigned to it in Section
10 hereof.
"Record Date" shall have the meaning assigned to itin Section 3 hereof.
"Reference Corporate Dealers" shall mean leading dealers of publicly
traded debt securities of the Company in The City of New York (which, unless
otherwise specified by the Remarketing Dealer or Dealers, shall include Merrill
Lynch or one of its affiliates and Chase or one of its affiliates) selected by
the Company after consultation with the Remarketing Dealer or Dealers and
notified to the Remarketing Dealer or Dealers not later than 4:00 p.m., New York
City time, on the Mode Terms Designation Date for the MOPPRS/CHEERS Mode;
provided, that if the Company does not so notify the Remarketing Dealer or
Dealers by such time, then such Reference Corporate Dealers shall be selected by
the Remarketing Dealer or Dealers.
"Reference Money Market Dealers" shall mean leading dealers of publicly
traded debt securities of the Company in The City of New York who are also
leading dealers in money market instruments (which, unless otherwise specified
by the Remarketing Dealer or Dealers, shall include Merrill Lynch or one of its
affiliates and Chase or one of its affiliates) selected by the Company after
consultation with the Remarketing Dealer or Dealers and notified to the
Remarketing Dealer or Dealers not later than 4:00 p.m., New York City time, on
the Mode Terms Designation Date for the Short Term Mode; provided, that if the
Company does not so notify the Remarketing Dealer or Dealers by such time, then
such Reference Money Market Dealers shall be selected by the Remarketing Dealer
or Dealers.
"Reference Treasury Dealer" shall mean (1) with respect to any optional
redemption of Securities after the remarketing thereof in the MOPPRS/CHEERS
Mode, at least four primary U.S. Government securities dealers in The City of
New York as the Company or the Trustee shall select, which may include the
Remarketing Dealer or Dealers, the Remarketing Reset Agent or an affiliate
thereof, and (2) with respect to the Initial Mandatory Tender Date, up to five
primary U.S. Government securities dealers in The City of New York (which,
unless otherwise specified by the Remarketing Dealer or Dealers, shall include
Merrill Lynch or one of its affiliates and Chase or one of its affiliates, in
each case, that is a primary U.S. Government securities dealer) selected by the
Company after consultation with the Remarketing Dealer or Dealers and notified
to the Remarketing Dealer or Dealers not later than 4:00 p.m., New York City
time, on the Initial Mode Election Date; provided, that if the Company does not
so notify the Remarketing Dealer or Dealers by such time, then such Reference
Treasury Dealers shall be selected by the Remarketing Dealer or Dealers;
provided, however, that if any of the foregoing or their affiliates shall cease
to be a primary U.S. Government securities dealer in The City of New York (a
"Primary Treasury Dealer"), the Company, or if applicable, the Remarketing
Dealer or Dealers shall substitute therefor another Primary Treasury Dealer.
"Reference Treasury Dealer Quotations" shall mean (a) with respect to
each Reference Treasury Dealer and the Initial Mandatory Tender Date, the offer
prices for the Comparable Treasury Issues (expressed in each case as a
percentage of its principal amount) quoted to the Remarketing Dealer or Dealers
by such Reference Treasury Dealer by 3:30 p.m., New York City time, on the third
Business Day preceding the Initial Mandatory Tender Date, and (b) with respect
to each Reference Treasury Dealer and any optional redemption date applicable to
the Securities after the remarketing thereof in the MOPPRS/CHEERS Mode, the
average, as
9
<PAGE>
determined by the Trustee, of the bid and asked prices for the Comparable
Treasury Issue for the Securities (expressed in each case as a percentage
of its principal amount) quoted in writing to the Trustee by such Reference
Treasury Dealer at 3:30 p.m., New York City time, on the third
Business Day preceding such redemption date.
"Reinvestment Spread" shall mean, with respect to the Securities
subject to redemption, a number, expressed as a number of basis points or as a
percentage, selected on the applicable Mode Terms Designation Date.
"Remaining Scheduled Payments" shall mean, with respect to this
Security (or the applicable portion hereof), the remaining scheduled payments of
the principal thereof and interest thereon (assuming interest is payable on May
7 and November 7 of each year, commencing May 7, 2003, and assuming the
Securities were not remarketed in the Short Term Mode), calculated at the Base
Rate only, that would be due after the Initial Mandatory Tender Date to and
including the Stated Maturity Date, as determined by the Remarketing Dealer or
Dealers.
"Remarketing Agreements" shall mean the Chase Remarketing Agreement and
the Merrill Lynch Remarketing Agreement, and "Remarketing Agreement" shall mean
either of them.
"Remarketing Dealer" and "Remarketing Dealers" shall mean each of Chase
and Merrill Lynch acting separately or, as applicable, jointly, pursuant to the
Chase Remarketing Agreement and the Merrill Lynch Remarketing Agreement,
respectively.
"Remarketing Reset Agent" shall mean Merrill Lynch or such other
broker-dealer selected by the Company to act as remarketing reset agent pursuant
to the Remarketing Reset Agreement.
"Remarketing Reset Agreement" shall mean the remarketing reset
agreement dated as of November 7, 2000, between the Company and Merrill Lynch,
as such agreement may be amended or supplemented, which sets forth, among other
things, the rights and obligations of Merrill Lynch as Remarketing Reset Agent
and a Calculation Agent.
"Remarketing Reset Mode" shall mean the mode in which this Security
bears interest during one or more Subsequent Spread Periods at a Fixed Rate or a
Floating Rate.
"Security" or "Securities" shall have the meaning assigned to it in
Section 2 hereof.
"Short Term Mode" shall mean the mode in which this Security bears
interest during the Short Term Period at the Short Term Rate.
"Short Term Rate" shall be equal to the sum of the Floating Rate Basis
for the Short Term Mode plus or minus the Short Term Spread.
"Short Term Spread" shall be the lowest bid indication (if positive) or
highest bid indication (if negative), expressed as a spread (in the form of a
percentage or number of basis points) above (if positive) or below (if negative)
the applicable Floating Rate Basis, obtained by
10
<PAGE>
the Remarketing Dealer or Dealers on the Short Term Spread Determination
Date from the bids quoted from five Reference Money Market Dealers on such
date for the full aggregate principal amount of the Securities to be
remarketed by the Remarketing Dealer or, if applicable, the Remarketing
Dealers at a price equal to par, but assuming (i) an issue date of the Initial
Mandatory Tender Date, with settlement on such date without accrued interest,
(ii) a maturity date equal to the Additional Mandatory Tender Date
designated on the Mode Terms Designation Date for the Short Term Mode, (iii)
that the Securities are subject to purchase as a whole by the Remarketing Dealer
or Dealers or the Company at a price equal to 100% of the principal amount
thereof on a weekly or monthly basis, as the case may be (as designated by the
Company on the Mode Terms Designation Date), after the Initial Mandatory Tender
Date; and (iv) a stated annual interest rate, reset on the designated
Interest Reset Dates and payable on the designated Interest Payment Date or
Dates, equal to the Floating Rate Basis plus or minus the spread bid by the
applicable Reference Money Market Dealer. If fewer than five Reference Money
Market Dealers bid as described above, then the Short Term Spread shall be the
lowest of such bid indications (if positive), or highest (if negative) of such
bid indications, obtained as described above, subject to the Remarketing Dealer
or Dealers receiving at least two bids.
"Short Term Spread Determination Date" shall mean the third Business
Day immediately preceding the Initial Mandatory Tender Date, in the event that
this Security is remarketed in the Short Term Mode.
"Short Term Spread Period" shall have the meaning assigned to it in
Section 8 hereof.
"Spread Period" shall mean the Initial Period, the MOPPRS/CHEER Spread
Period, the Short Term Spread Period or a Subsequent Spread Period.
"Stated Maturity Date" shall mean November 7, 2012, subject to
extension as provided in Section 6 hereof.
"Subsequent Spread Determination Date" shall mean the fourth Business
Day immediately preceding an Optional Tender Date for a Subsequent Spread
Period.
"Subsequent Spread Period" shall have the meaning assigned to it in
Section 13 hereof.
"Telerate Page 500" shall mean the display designated as "Telerate Page
500" on Bridge Telerate, Inc. (or such other page as may replace Telerate Page
500 on such service) or such other service displaying the offer prices specified
above in the definition of Comparable Treasury Price as may replace Bridge
Telerate, Inc.
"Tender Date" shall mean a Mandatory Tender Date or an Optional Tender
Date
"Treasury Rate" shall mean, with respect to the Initial Mandatory
Tender Date, the rate per annum equal to the semiannual equivalent yield to
maturity of the Comparable Treasury Issues, assuming a price for the Comparable
Treasury Issues (expressed as a percentage of its principal amount), equal to
the Comparable Treasury Price for the Initial Mandatory Tender Date; provided,
however, that if, in the judgment of the Remarketing Dealer or Dealers, if
applicable, no Comparable Treasury Issues are outstanding at the time of
determination, the "Treasury Rate" will be the rate per annum equal to the yield
for United States Treasury
11
<PAGE>
securities at "constant maturity" having a maturity comparable to the remaining
term to the Stated Maturity Date of the Securities being purchased obtained by
the Remarketing Dealer or Dealers, if applicable, from a recognized
information service or other source in accordance with market practice.
"Treasury Yield" shall mean, with respect to any optional redemption of
Securities after remarketing thereof in the MOPPRS/CHEERS Mode, the rate per
annum equal to the semiannual equivalent yield to maturity or interpolated (on a
day count basis) of the Comparable Treasury Issue, assuming a price for the
Comparable Treasury Issue (expressed as a percentage of its principal amount),
with respect to any optional redemption of Securities, equal to the applicable
Comparable Treasury Price, with respect to any optional redemption of
Securities, for such redemption date.
"Trustee" shall have the meaning assigned to it in Section 2 hereof.
2. Indenture. (a) This Security is one of a duly authorized series of
Debt Securities of the Company, designated as the "Floating Rate MOPPRS/CHEERS,"
and referred to herein as the "Securities," issued or to be issued under an
Indenture, dated as of June 27, 1995 (as amended or modified from time to time,
the "Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture reference is hereby made for a statement of the respective
rights, limitations of rights, duties and immunities thereunder of the Company,
the Trustee and the Holders of the Securities, and of the terms upon which the
Securities are authenticated and delivered. The Securities are initially limited
to $200,000,000 aggregate principal amount. All terms used but not defined in
this Security shall have the meanings assigned to such terms in the Indenture.
Except where the context otherwise requires, all references in this Security to
"this Security," "herein" or "hereof" or similar terms shall include the
Indenture and any applicable portion of this Security.
(b) This Security is issuable only in registered form without
coupons in minimum denominations of U.S. $1,000 and integral multiples
thereof.
(c) This Security will not be subject to any sinking fund.
3. General Payment and Calculation Provisions. Interest on this
Security will accrue from, and including, the immediately preceding Interest
Payment Date to which interest has been paid or duly provided for (or from, and
including, the Original Issue Date, if no interest has been paid or duly
provided for) to, but excluding, the applicable Interest Payment Date or the
Maturity Date, as the case may be. 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 Security
(or one or more predecessor Securities) is registered at the close of business
on the fifteenth calendar day (whether or not a Business Day) immediately
preceding such Interest Payment Date (the "Record Date"). Any such interest
which is payable, but is not punctually paid or duly provided for, on any
Interest Payment Date shall forthwith cease to be payable to the registered
Holder hereof on the relevant regular record date by virtue of having been such
Holder, and may be paid to the Person in whose name this Security (or one or
more predecessor securities) is registered at the close of business on a
subsequent special
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record date (which shall be at least 10 days before the payment date) for
the payment of such defaulted interest to be fixed by the Trustee, notice
whereof shall be given to the Holders of Securities of this series not less
than 10 days prior to such special record date, or may be paid at any time in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in such Indenture.
Payments of principal and interest hereunder shall be made in such coin or
currency of the United States of America as at the time of payment shall
be legal tender for the payment of public and private debts and shall be made
immediately available to the Holder (as defined below) hereof. Notwithstanding
anything to the contrary, if this Security is a global Security (as evidenced by
the legend first set forth above and provided in the Indenture), and is held in
book-entry form through the facilities of DTC, payments on this Security will be
made to DTC or its nominee in accordance with the arrangements then in effect
between the Trustee and DTC.
During any period in which this Security (or any portion hereof) bears
interest at a "Floating Rate", if any Interest Payment Date (other than the
Stated Maturity Date) would otherwise be a day that is not a Business Day, such
date will be postponed to the next succeeding day that is a Business Day, except
that, for any Interest Payment Date that does not fall on a Tender Date or a
Maturity Date, if LIBOR is the applicable Floating Rate Basis and such Business
Day is in the next succeeding calendar month, such date shall be the next
preceding Business Day.
During any period in which this Security (or any portion hereof) bears
interest at a "Fixed Rate", if any Interest Payment Date (other than an Interest
Payment Date falling on a Tender Date) would otherwise be a day that is not a
Business Day, the related payment of principal, premium, if any, and interest
will be made on the next succeeding Business Day as if it were made on the date
such payment was due, and no interest will accrue on the amounts so payable for
the period from and after such date to the next succeeding Business Day.
If the Stated Maturity Date for this Security (or any portion hereof)
falls on a day that is not a Business Day, the related payment of principal,
premium, if any, and interest will be made on the next succeeding Business Day
as if it were made on the date such payment was due, and no interest on the
amounts so payable for the period from and after such date to the next
succeeding Business Day.
If a Tender Date would otherwise be a day that is not a Business Day,
any payment or remarketing scheduled to occur on such day will be postponed to
the next succeeding day that is a Business Day, and interest will accrue on the
amount of principal or premium, if any, payable to such Business Day.
All percentages resulting from any calculation of any interest rate for
this Security (or any portion hereof) will be rounded, if necessary, to the
nearest one hundred thousandth of a percentage point, with five one millionths
of a percentage point rounded upward and all dollar amounts will be rounded to
the nearest cent, with one-half cent being rounded upward.
In the event that no applicable United States Treasury securities are
outstanding as of any date for purposes of determining a rate, the Remarketing
Dealer, the Remarketing Reset Agent,
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or, as the case may be, the Calculation Agent, will determine an equivalent
rate in good faith on a commercially reasonable basis using a formulation
by reference to market practice at such date and a security that is, in the
judgment of applicable Remarketing Dealer or Dealers, the Remarketing Reset
Agent, or, as the case may be, the Calculation Agent, and, in each case, after
consultation with the Company, a comparable benchmark security at such date.
The Company shall cause the terms of the Securities, subject to the terms of
the Indenture as modified hereby, to be amended as necessary to facilitate
the foregoing.
4. Interest to Initial Mandatory Tender Date. This Security will bear interest
at the annual interest rate of LIBOR determined in accordance with Section 15
below, with an Index Maturity of three months, plus a Spread equal to 70 basis
points, reset quarterly on February 7, May 7, August 7 and November 7 of each
year, commencing November 7, 2000 (each, an "Interest Reset Date" in respect of
the Initial Period), from, and including, the Original Issue Date to, but
excluding, the Initial Mandatory Tender Date (the "Initial Period"). During the
Initial Period, interest on the Securities will be payable on February 7, May 7,
August 7 and November 7 of each year (each such date, an "Interest Payment Date"
in respect of the Initial Period), commencing February 7, 2001. For the Initial
Period, interest will be computed on the basis of the actual number of days
elapsed over a 360-day year.
5. Mandatory Tender on the Initial Mandatory Tender Date, and, if applicable,
the Additional Mandatory Tender Date. (a) Mandatory Tender. This Security (or
the applicable portion hereof) shall be automatically tendered for purchase, or
deemed tendered by the Beneficial Owners hereof, on each Mandatory Tender Date
relating hereto in accordance with the terms hereof.
(b) Purchase by Remarketing Dealer. The Company has appointed Chase and
Merrill Lynch as Remarketing Dealers for the Securities on the Initial Mandatory
Tender Date and the Additional Mandatory Tender Date, if any, under the Chase
Remarketing Agreement and the Merrill Lynch Remarketing Agreement, respectively,
each with respect to $100,000,000 aggregate principal amount of the Securities.
On a Business Day (the "Notification Date") not later than five
Business Days prior to the Initial Mandatory Tender Date, each Remarketing
Dealer will notify the Company and the Trustee as to whether it elects to
purchase its portion of the Securities on the Initial Mandatory Tender Date. If,
and only if, a Remarketing Dealer so elects, the applicable portion of the
Securities shall be subject to mandatory tender to the Remarketing Dealer for
remarketing on the Initial Mandatory Tender Date and, in the event that the
Company elects to have the Securities remarketed in the Short Term Mode, the
Additional Mandatory Tender Date, subject to the conditions set forth or
otherwise referred to herein.
The Remarketing Dealers have agreed in the Remarketing Agreements that,
if both Remarketing Dealers are remarketing the Securities on the same date and
upon identical terms, they will coordinate their efforts in order to establish
the same interest rate for the full aggregate principal amount of the Securities
in connection with such remarketing. In addition, if only one Remarketing Dealer
elects to remarket the Securities (and/or the other Remarketing Dealer resigns
as Remarketing Dealer prior to the remarketing), the Company may request such
remaining Remarketing Dealer to remarket the full aggregate principal amount of
the Securities.
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The Remarketing Dealers shall incur no liability under the Remarketing
Agreements to any Beneficial Owners or Holders of the Securities in their
individual capacity or as Remarketing Dealers for any action or failure to act
in connection with remarketing or otherwise.
6. Initial Mode Election; Extension of Stated Maturity Date. Provided that a
Remarketing Dealer gives notice of its intention to purchase the Securities in
accordance with Section 5 hereof, then not later than 4:00 p.m., New York City
time, on the Initial Mode Election Date, the Company, after consultation with
such Remarketing Dealer, may elect, by notifying the Remarketing Dealer, the
Trustee and DTC by telephone, confirmed in writing, that it elects to either (i)
redeem such Remarketing Dealer's portion of the Securities in whole, but not in
part, on the Initial Mandatory Tender Date, (ii) have the applicable Securities
remarketed initially in the Short Term Mode on the Initial Mandatory Tender
Date, in which case the Securities shall also be subject to mandatory tender for
remarketing in the MOPPRS/CHEERS Mode on the Additional Mandatory Tender Date,
or (iii) have the applicable Securities remarketed initially in the
MOPPRS/CHEERS Mode, in which case the Initial Mandatory Tender Date shall be the
only Mandatory Tender Date. The Company will be eligible to elect the Short Term
Mode and make such notification if at such time its senior unsecured debt is
rated at least "Baa3" by Moody's Investors Service, Inc. and "BBB-" by Standard
& Poor's Ratings Services (or the equivalent thereof by each such rating agency)
at the time of such notification or if the applicable Remarketing Dealer waives
this requirement in its sole discretion. If the Company does not provide such
notification, the Initial Mandatory Tender Date shall be the only Mandatory
Tender Date and the Stated Maturity Date shall be November 7, 2012. If the
Company elects the Short Term Mode and provides notification thereof, then (i)
the "Additional Mandatory Tender Date" shall be the earlier of (A) the date
established on the Mode Terms Designation Date for the Short Term Mode as the
Additional Mandatory Tender Date, which shall be a date not more than one year
following the Initial Mandatory Tender Date (or if such day is not a Business
Day, the next succeeding Business Day), or (B) one of the one-week or one-month
anniversary dates following the Initial Mandatory Tender Date (or if any such
day is not a Business Day, the next succeeding Business Day) designated by the
Company by notification to the applicable Remarketing Dealer, the Trustee and
DTC (and the Company, in such notice, shall instruct the Trustee and/or DTC to
notify the Beneficial Owners of the Securities of such date) not later than the
fifth Business Day prior to such one-week or one-month anniversary date, and
(ii) the Stated Maturity Date of the Securities shall be the date that is the
ten-year anniversary of the Additional Mandatory Tender Date (whether or not a
Business Day).
7. Designation of Terms for the Short Term Mode. If the Company elects to have
the Securities remarketed in the Short Term Mode, then by not later than 4:00
p.m., New York City time, on the Mode Terms Designation Date for the Short Term
Mode, the Company, after consultation with the Remarketing Dealer (or
Remarketing Dealers, if they are acting jointly), will establish the Additional
Mandatory Tender Date for remarketing of the Securities (or applicable portion
thereof) in the MOPPRS/CHEERS Mode, which shall be a date not more than one year
following the Initial Mandatory Tender Date (or if such day is not a Business
Day, the next succeeding Business Day), designate whether such date may be
advanced on a weekly or monthly basis, and designate the applicable Floating
Rate Basis, Interest Payment Date(s), Interest Reset Date(s) and any other
applicable floating rate terms for remarketing of the Securities (or applicable
portion thereof) in the Short Term Mode.
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8. Determination of the Short Term Rate. If the Securities (or applicable
portion thereof) are to be remarketed in the Short Term Mode, the Short Term
Spread applicable thereto will be determined by the applicable Remarketing
Dealer by 3:30 p.m., New York City time, on the Short Term Spread Determination
Date, to the nearest one-hundred thousandth (0.00001) of one percent per annum,
by soliciting bids from five Reference Money Market Dealers for the full
aggregate principal amount of such Remarketing Dealer's portion of the
Securities at a price equal to par. If both Remarketing Dealers are remarketing
in the Short Term Mode on the same date and upon identical terms, then they will
determine the Short Term Spread jointly for the full aggregate principal amount
of the Securities. From, and including, the Initial Mandatory Tender Date, if
the Securities (or applicable portion thereof) are remarketed in the Short Term
Mode, to, but excluding, the Additional Mandatory Tender Date (the "Short Term
Spread Period"), the Securities (or applicable portion thereof) shall bear
interest at the Short Term Rate.
Notwithstanding any provision herein to the contrary, if, after
determining the Short Term Spread as provided in the immediately preceding
paragraph, a Remarketing Dealer is entitled to terminate the applicable
Remarketing Agreement, then in lieu of terminating such Remarketing Agreement,
the Remarketing Dealer, in its sole discretion at any time between the Short
Term Spread Determination Date and 3:30 p.m., New York City time, on the
Business Day immediately preceding the Initial Mandatory Tender Date, may elect
to purchase the applicable Securities for remarketing and determine a new Short
Term Spread in the manner provided above, except that for purposes of
determining the new Short Term Spread pursuant to this paragraph, the Short Term
Spread Determination Date referred to therein shall be the date of such election
and redetermination. The Remarketing Dealer will notify the Company, the Trustee
and DTC by telephone, confirmed in writing (which may include facsimile or other
electronic transmission), by 4:00 p.m., New York City time, on the date of such
election, of the new Short Term Spread applicable to the Securities (or
applicable portion thereof). Thereupon, such new Short Term Spread shall
supersede and replace any applicable Short Term Spread previously determined by
the Remarketing Dealer and, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and Holders of the Securities (or
applicable portion thereof), the Company and the Trustee on or after the Initial
Mandatory Tender Date; provided, however, that the Remarketing Dealer, by
redetermining the Short Term Spread, shall not thereby be deemed to have waived
any right if otherwise may have to determine a new Short Term Spread or
terminate the applicable Remarketing Agreement.
The Floating Rate Basis for a Short Term Rate will be determined as
described in Section 15 hereof. Each determination will be made by the
Calculation Agent as of the applicable Interest Determination Date.
The Short Term Spread announced by the Remarketing Dealer (or
Remarketing Dealers, if they are acting jointly) and the resulting Short Term
Rate, absent manifest error, shall be binding and conclusive upon the Beneficial
Owners and Holders of the Securities, the Company and the Trustee.
Interest will be payable on the designated date or dates (each, an
"Interest Payment Date" in respect of the Short Term Spread Period) and reset on
the designated Interest Reset Dates, and computed on the basis of the day-count
convention provided in Section 15(a) below for the applicable Floating Rate
Basis.
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9. Designation of Terms for the MOPPRS/CHEERS Mode. If the Securities (or the
applicable portion thereof) are to be remarketed in the MOPPRS/CHEERS Mode,
then, by not later than 12:00 p.m., New York City time, on the Mode Terms
Designation Date for the MOPPRS/CHEERS Mode, the Company, after consultation
with the Remarketing Dealer (or Remarketing Dealers, if they are acting
jointly), will establish the first Optional Tender Date, if any, designate the
MOPPRS/CHEERS Rate as a Fixed Rate or Floating Rate (and in the latter case, the
applicable Floating Rate Basis, Interest Reset Date(s) and any other applicable
floating rate terms), specify the Interest Payment Dates for the MOPPRS/CHEERS
Spread Period, and establish the terms, if any, for redemption of the Securities
(or the applicable portion thereof) for the MOPPRS/CHEERS Spread Period.
10. Determination of the MOPPRS/CHEERS Rate. If the Securities (or applicable
portion thereof) are to be remarketed in the MOPPRS/CHEERS Mode, the
MOPPRS/CHEERS Spread applicable thereto will be determined by the applicable
Remarketing Dealer by 3:30 p.m., New York City time, on the MOPPRS/CHEERS Spread
Determination Date, to the nearest one hundred-thousandth (0.00001) of one
percent per annum, by soliciting bids from five Reference Corporate Dealers for
the full aggregate principal amount of such Remarketing Dealer's portion of the
Securities at the Dollar Price or, as the case may be, the Adjusted Dollar
Price. If both Remarketing Dealers are remarketing in the MOPPRS/CHEERS Mode on
the same date and upon identical terms, then they will determine the
MOPPRS/CHEERS Spread jointly for the full aggregate principal amount of the
Securities. From, and including, the applicable Mandatory Tender Date for
remarketing of the Securities (or applicable portion thereof) in the
MOPPRS/CHEERS Mode to, but excluding, the initial "Optional Tender Date"
designated by the Company or, if no such date is designated, the Stated Maturity
Date (the "MOPPRS/CHEERS Spread Period"), the Securities (or applicable portion
thereof) shall bear interest at the MOPPRS/CHEERS Rate.
Notwithstanding any provision herein to the contrary, if, after
determining the MOPPRS/CHEERS Spread as provided above, a Remarketing Dealer is
entitled to terminate the applicable Remarketing Agreement, then in lieu of
terminating such Remarketing Agreement, the Remarketing Dealer, in its sole
discretion at any time between the MOPPRS/CHEERS Spread Determination Date and
3:30 p.m., New York City time, on the Business Day immediately preceding the
Initial Mandatory Tender Date or, as the case may be, the Additional Mandatory
Tender Date, may elect to purchase the applicable Securities for remarketing and
determine a new MOPPRS/CHEERS Spread in the manner provided above, except that
for purposes of determining the new MOPPRS/CHEERS Spread pursuant to this
paragraph, the MOPPRS/CHEERS Spread Determination Date referred to therein shall
be the date of such election and redetermination. The Remarketing Dealer will
notify the Company, the Trustee and DTC by telephone, confirmed in writing
(which may include facsimile or other electronic transmission), by 4:00 p.m.,
New York City time, on the date of such election, of the new MOPPRS/CHEERS
Spread applicable to the Securities (or applicable portion thereof). Thereupon,
such new MOPPRS/CHEERS Spread shall supersede and replace any applicable
MOPPRS/CHEERS Spread previously determined by the Remarketing Dealer and, absent
manifest error, shall be binding and conclusive upon the Beneficial Owners and
Holders of the Securities (or applicable portion thereof), the Company and the
Trustee on or after the Initial Mandatory Tender Date or, as the case may be,
the Additional Mandatory Tender Date; provided, however, that the Remarketing
Dealer, by redetermining the MOPPRS/CHEERS
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Spread, shall not thereby be deemed to have waived any right it otherwise may
have to determine a new MOPPRS/CHEERS Spread or terminate the applicable
Remarketing Agreement.
The Fixed Rate Basis, if any, or Floating Rate Basis, if any, for a
MOPPRS/CHEERS Rate will be determined as described in Section 15 hereof. The
determination will be made by the Calculation Agent on the MOPPRS/CHEERS Spread
Determinate Date, in the case of a Fixed Rate, and as of the applicable Interest
Determination Date, in the case of a Floating Rate.
The MOPPRS/CHEERS Spread announced by the Remarketing Dealer (or
Remarketing Dealers, if they are acting jointly) and the resulting MOPPRS/CHEERS
Rate, absent manifest error, shall be binding and conclusive upon the Beneficial
Owners and Holders of the Securities, the Company and the Trustee.
Interest will be payable semiannually on the designated dates and
computed on the basis of a 360-day year of twelve 30-day months, in the case of
a Fixed Rate, and on the designated dates (each, an "Interest Payment Date" in
respect of the MOPPRS/CHEERS Spread Period), and reset on the designated
Interest Reset Dates and computed on the basis of the day-count convention
described below for the applicable Floating Rate Basis, in the case of a
Floating Rate.
11. Notification of Results and Settlement for Short Term Mode and MOPPRS/CHEERS
Mode. Subject to the applicable Remarketing Dealer's election to remarket the
Securities and the other conditions set forth in this Security and the
applicable Remarketing Agreement, and subject further to Section 14(a) below,
(i) the Remarketing Dealer (or Remarketing Dealers, if they are acting jointly)
will notify the Company, the Trustee and DTC by telephone, confirmed in writing
(which may include facsimile or other electronic transmission), by 4:00 p.m.,
New York City time, on the MOPPRS/CHEERS Spread Determination Date of the
MOPPRS/CHEERS Spread, and (ii) if the Securities are remarketed in the Short
Term Mode, the Remarketing Dealer (or Remarketing Dealers, if they are acting
jointly) will notify the Company, the Trustee and DTC by telephone, confirmed in
writing, by 4:00 p.m., New York City time, on the Short Term Spread
Determination Date of the Short Term Spread.
All of the Securities shall be automatically delivered to the account
of the Trustee, by book-entry through DTC, pending payment of the purchase price
therefor, on each Mandatory Tender Date.
In the event that the Securities are remarketed as provided herein, the
Remarketing Dealer will make, or cause the Trustee to make, payment to the DTC
Participant of each tendering Beneficial Owner of Securities subject to
remarketing, by book-entry through DTC by the close of business on the
applicable Mandatory Tender Date against delivery through DTC of such Beneficial
Owner's tendered Securities, of 100% of the principal amount of the tendered
Securities that have been purchased for remarketing by the Remarketing Dealer.
If a Remarketing Dealer does not purchase all of its portion of the Securities
on a Mandatory Tender Date, unless the other Remarketing Dealer agrees to, and
does, remarket all of the Securities, it shall be the obligation of the Company
to make or cause to be made such payment for the Securities. The Company shall
make, or cause the Trustee to make, payment of interest to each
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person entitled thereto due on the Securities on the applicable Mandatory
Tender Date by book entry through DTC by the close of business on such date.
The transactions described above will be executed on the applicable
Mandatory Tender Date through DTC in accordance with the procedures of DTC, and
the accounts of the respective DTC participants will be debited and credited and
the Securities delivered by book-entry as necessary to effect the purchases and
sales of the Securities.
The tender and settlement procedures described above, including
provisions for payment by purchasers of Securities in the remarketing or for
payment to selling Beneficial Owners of tendered Securities, may be modified to
the extent required by DTC or to the extent required to facilitate the tender
and remarketing of Securities in certificated form, if the book-entry system is
no longer available for the Securities at the time of the remarketing. In
addition, the Remarketing Dealers may, in accordance with the terms of the
Indenture, as modified hereby, modify the tender and settlement procedures set
forth above in order to facilitate the tender and settlement process.
As long as DTC's nominee holds the certificates representing any
Securities in the book-entry system of DTC, no certificates for such Securities
will be delivered by any selling Beneficial Owner to reflect any transfer of
such Securities effected in the remarketing.
12. Repurchase. In the event that (i) the Remarketing Dealer for any reason
(other than redemption by the Company of the Securities from the Remarketing
Dealer in accordance with Section 14 hereof) does not notify the Company of (A)
in the event of the MOPPRS/CHEERS Mode, the MOPPRS/CHEERS Spread by 4:00 p.m.,
New York City time, on the MOPPRS/CHEERS Spread Determination Date or (B) in the
event of the Short Term Mode, the Short Term Spread by 4:00 p.m., New York City
time, on the Short Term Spread Determination Date (subject to in each case to
redetermination, if applicable, in accordance with Section 8, or, as the case
may be, Section 10 above), or (ii) prior to either Mandatory Tender Date, the
Remarketing Dealer has resigned and no successor has been appointed on or before
the Short Term Spread Determination Date or, as applicable, the MOPPRS/CHEERS
Spread Determination Date or (iii) the Remarketing Dealer has terminated the
Remarketing Agreement pursuant to Section 8 or Section 11 thereof at any time
after the Remarketing Dealer elects on the Notification Date to remarket the
Securities, or (iv) the Remarketing Dealer for any reason does not elect, by
notice to the Company, and the Trustee not later than the Notification Date, to
purchase the Securities for remarketing on the Initial Mandatory Tender Date, or
(v) the Remarketing Dealer for any reason does not purchase all of its portion
of tendered Securities on a Mandatory Tender Date, the Company shall repurchase
such Securities as a whole on the applicable Mandatory Tender Date at a price
equal to 100% of the principal amount of the Securities plus all accrued and
unpaid interest, if any, on the Securities to such Mandatory Tender Date. In any
such case, payment shall be made by the Company through the Trustee to the DTC
Participant of each tendering Beneficial Owner of Securities, by book-entry
through DTC by the close of business on such Mandatory Tender Date against
delivery through DTC of such Beneficial Owner's tendered Securities.
Notwithstanding the foregoing, if one Remarketing Dealer resigns, or
otherwise does not elect to remarket the Securities, and the remaining
Remarketing Dealer agrees to, and does,
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remarket the full aggregate principal amount of the Securities on the
applicable Mandatory Tender Date, pursuant to the request of the Company,
then the Company will not be obligated to repurchase the Securities on such
Mandatory Tender Date.
13. Remarketing Reset Mode. The following provisions shall apply in the
event that the Securities are in
the Remarketing Reset Mode:
(a) Determination of Spread, Subsequent Spread Periods and Other Terms.
The "Spread" will be determined in the manner described below for each period
from and including each Optional Tender Date to but excluding each next
succeeding Optional Tender Date (a "Subsequent Spread Period"), which will be
one or more periods of at least six months and not more than the period
remaining to the Stated Maturity Date of the Securities (or any integral
multiple of six months therein), designated by the Company, commencing on the
date (each such date, an "Optional Tender Date") specified by the Company and
the Remarketing Reset Agent on the applicable Mode Terms Designation Date in
connection with the establishment of each Subsequent Spread Period, if any,
through and including the next succeeding Optional Tender Date or the Stated
Maturity Date, as the case may be (no Subsequent Spread Period may end after the
Stated Maturity Date).
The Spread that will be applicable to this Security during each
Subsequent Spread Period will be the percentage (i) recommended by the
Remarketing Reset Agent so as to result in a rate that, in the opinion of the
Remarketing Reset Agent, will enable tendered Securities (or any applicable
portion thereof) to be remarketed by the Remarketing Reset Agent at 100% of the
principal amount thereof, as described in subsection (c) below, and (ii) agreed
to by the Company. During each Subsequent Spread Period, this Security shall
bear interest at a Floating Rate or a Fixed Rate, determined in accordance with
Section 15 hereof. The Spread announced by the Remarketing Reset Agent and the
resulting Fixed Rate or Floating Rate, absent manifest error, shall be binding
and conclusive upon the Beneficial Owner and Holders of the Securities, the
Company and the Trustee.
Unless notice of redemption of all of the outstanding Securities has
been given, the term, redemption dates, redemption type (i.e., par, premium or
make-whole), redemption prices (if applicable), Optional Tender Date, Interest
Payment Dates, interest rate type (i.e., Fixed Rate or Floating Rate), Floating
Rate Basis (if applicable) and any other relevant terms for each Subsequent
Spread Period for Securities will be established by 3:00 p.m., New York City
time, on the Mode Terms Designation Date for such Subsequent Spread Period;
provided, that the Mode Terms Designation Date for establishing the first
Optional Tender Date, if any, will be the Mode Terms Designation Date for the
MOPPRS/CHEERS Mode.
The Spread for each Subsequent Spread Period will be established by
3:00 p.m., New York City time, on the Subsequent Spread Determination Date
immediately preceding such Subsequent Spread Period. The Company shall request,
not less than ten nor more than 20 days prior to any Subsequent Spread
Determination Date, that DTC notify its DTC Participants of such Subsequent
Spread Determination Date and of the procedures that must be followed if any
Beneficial Owner of Securities wishes to tender such Securities as provided in
subsection (c) below. In the event that DTC or its nominee is no longer the
holder of record of the Securities, the Company shall notify the Holders of such
information within such period of time. This will
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be the only notice given by the Company or the Remarketing Reset Agent with
respect to such Subsequent Spread Determination Date and procedures for
tendering Securities.
If the Securities are to bear interest at a Floating Rate, as agreed to
by the Company and the Remarketing Reset Agent on a Mode Terms Designation Date,
then the applicable Floating Rate for the corresponding Subsequent Spread Period
will be determined in accordance with Section 15(a) hereof, and shall be equal
to (i) the applicable Floating Rate Basis, plus or minus (ii) the applicable
Spread (as agreed to by the Company and the Remarketing Reset Agent on the
Subsequent Spread Determination Date for such Subsequent Spread Period).
If the Securities are to bear interest at a Fixed Rate, as agreed to by
the Company and the Remarketing Reset Agent on a Mode Terms Designation Date,
then the applicable Fixed Rate for the corresponding Subsequent Spread Period
shall be determined by 1:00 p.m., New York City time, on the third Business Day
prior to the Optional Tender Date commencing such Subsequent Spread Period (the
"Fixed Interest Determination Date"), and shall be equal to (i) the Fixed Rate
Basis, determined in accordance with Section 15(b) hereof, plus (ii) the
applicable Spread (as agreed to by the Company and the Remarketing Reset Agent
on the preceding Subsequent Spread Determination Date for such Subsequent Spread
Period).
(b) Mandatory Repurchase Upon Failure to Set a Spread. In the event
that the Company and the Remarketing Reset Agent do not agree on
the Spread for any Subsequent Spread Period for the Securities,
then the Company is required unconditionally to repurchase and
retire all of the Securities on the related Optional Tender Date
at a price equal to 100% of the aggregate principal amount of the
Securities, together with accrued and unpaid interest thereon to
the Optional Tender Date.
(c) Tender at Option of Beneficial Owners; Remarketing. On the
Optional Tender Date commencing each Subsequent Spread Period,
each Security shall be automatically tendered, or deemed
tendered, to the Remarketing Reset Agent for remarketing by the
Remarketing Reset Agent on the related Optional Tender Date at
100% of the principal amount thereof (the "Purchase Price"),
unless the Beneficial Owner thereof, at such owner's option, upon
giving notice as provided below (the "Hold Notice"), elects not
to tender such Securities. Subject to the second succeeding
paragraph, the Purchase Price will be paid by the Remarketing
Reset Agent in accordance with the standard procedures of DTC.
Interest accrued on such Securities with respect to the preceding
interest period will be paid in the manner described in Sections
3 and 15 hereof.
The Hold Notice must be received by the Remarketing Reset Agent through
DTC during the period commencing at 3:00 p.m., New York City time, on the Mode
Terms Designation Date and ending at 12:00 noon, New York City time, on the
third Business Day prior to the Optional Tender Date for such Subsequent Spread
Period (the "Notice Date" in respect of the Subsequent Spread Period); provided,
however, that if the Remarketing Reset Agent and the Company are unable to agree
on the Spread for the Subsequent Spread Period, any Hold Notices received shall
be null and void. Except as otherwise provided in subsection (b) above, a Hold
Notice shall be irrevocable. If a Hold Notice is not received through DTC for
any reason by the Remarketing Reset Agent with respect to any Securities by
12:00 noon, New York City time, on the Notice Date, the Beneficial Owner of such
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Securities shall be deemed to have elected to tender such Securities for
purchase by the Remarketing Reset Agent. All of the Securities, whether or not
tendered, shall bear interest upon the same terms.
The Remarketing Reset Agent will attempt, on a reasonable efforts
basis, to remarket the tendered Securities at a price equal to 100% of the
aggregate principal amount so tendered. There is no assurance that the
Remarketing Reset Agent will be able to remarket the entire principal amount of
Securities tendered in a remarketing. The obligation of the Remarketing Reset
Agent to perform its duties will be subject to certain conditions and
termination events set forth in the Remarketing Agency Agreement, including a
condition that no material adverse change in the condition of the Company and
its subsidiaries, taken as a whole, shall have occurred since the Subsequent
Spread Determination Date for the Securities. In addition, the Remarketing
Agency Agreement will provide for the termination thereof by the Remarketing
Reset Agent upon the occurrence of certain events as set forth therein.
No Beneficial Owner or Holder of any Securities shall have any rights
or claims against the Remarketing Reset Agent as a result of the Remarketing
Reset Agent not purchasing such Securities.
Notwithstanding anything to the contrary contained herein, the
Remarketing Reset Agent shall have the option, but not the obligation, to
purchase any Securities tendered to it that it is not able to remarket.
All of the Securities (unless subject to a Hold Notice) shall be
automatically delivered by book-entry through DTC, pending payment of the
purchase price therefor, on each Optional Tender Date.
In the event that the Securities are remarketed as provided in this
Section 13(c), the Remarketing Reset Agent will make, or cause the Trustee to
make, payment to the DTC Participant of each tendering Beneficial Owner of
Securities subject to remarketing, by book-entry through DTC by the close of
business on the applicable Optional Tender Date against delivery through DTC of
such Beneficial Owner's tendered Securities, of 100% of the principal amount of
the tendered Securities that have been purchased for remarketing by the
Remarketing Reset Agent. If a Remarketing Dealer does not purchase all of the
tendered Securities on an Optional Tender Date, it shall be the obligation of
the Company to make or cause to be made such payment for the Securities. The
Company shall make, or cause the Trustee to make, payment of interest to each
person entitled thereto due on the Securities on the applicable Optional Tender
Date by book entry through DTC by the close of business on such date.
The transactions described above will be executed on the applicable
Optional Tender Date through DTC in accordance with the procedures of DTC, and
the accounts of the respective DTC participants will be debited and credited and
the Securities delivered by book-entry as necessary to effect the purchases and
sales of the Securities.
The tender and settlement procedures described above, including
provisions for payment by purchasers of Securities in the remarketing or for
payment to selling Beneficial Owners of tendered Securities, may be modified to
the extent required by DTC or to the extent required to facilitate the tender
and remarketing of Securities in certificated form, if the book-entry system is
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no longer available for the Securities at the time of the remarketing. In
addition, the Company may, in accordance with the terms of the Indenture, as
modified hereby, modify the tender and settlement procedures set forth above in
order to facilitate the tender and settlement process.
As long as DTC's nominee holds the certificates representing any
Securities in the book-entry system of DTC, no certificates for such Securities
will be delivered by any selling Beneficial Owner to reflect any transfer of
such Securities effected in the remarketing.
(d) Mandatory Repurchase Upon Failed Remarketing. In the event that
the Remarketing Reset Agent is unable to remarket some or all of
the tendered Securities and, in its sole discretion, chooses not
to purchase such tendered Securities, the Company is obligated
unconditionally to purchase and retire on the Optional Tender Date
the remaining unsold tendered Securities at a price equal to 100%
of the aggregate principal amount thereof, plus accrued and unpaid
interest, if any, to the applicable Optional Tender Date.
14. Redemption. (a) Redemption From the Remarketing Dealers at the Option of the
Company. If a Remarketing Dealer elects to remarket the Securities, then not
later than 4:00 p.m., New York City time, on the fourth Business Day preceding
either the Initial Mandatory Tender Date or the Additional Mandatory Tender
Date, the Company shall notify the Remarketing Dealer and the Trustee if the
Company irrevocably elects to exercise its right to redeem the Securities, in
whole but not in part, from the Remarketing Dealer on the next succeeding
Mandatory Tender Date at the Optional Redemption Price. If the Company elects to
redeem the Securities, it shall pay the redemption price therefor in same-day
funds by wire transfer to an account designated by the Remarketing Dealer on the
applicable Mandatory Tender Date.
(b) Redemption at the Option of the Company During or After
MOPPRS/CHEERS Spread Period. During or after the MOPPRS/CHEERS Spread Period,
the MOPPRS/CHEERS are subject to redemption in the following circumstances:
On each Optional Tender Date and on those Interest Payment Dates
specified as redemption dates for the Securities by the Company on the
applicable Mode Terms Designation Date for the MOPPRS/CHEERS Spread Period or
any Subsequent Spread Period, the Securities may be redeemed, at the option of
the Company, in whole in part, upon notice thereof given at any time on at least
30 but not more than 60 calendar days notice prior to the redemption date, if
any, in the case of the MOPPRS/CHEERS Spread Period, or during the 30 calendar
day period ending on the eighth Business Day prior to the Redemption Date, in
the case of a Subsequent Spread Period, in accordance with the redemption type
selected.
The redemption type may be one of the following:
o Par Redemption: redemption at a redemption price equal to 100%
of the principal amount thereof, plus unpaid interest thereon,
if any, accrued to the redemption date.
o Premium Redemption: redemption at a redemption price or prices
greater than 100% of the principal amount thereof, plus unpaid
interest thereon, if any, accrued to the redemption date, as
determined on the applicable Mode Terms Designation Date.
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o Make-Whole Redemption: redemption at a redemption price equal to the
Make-Whole Amount.
If the Securities are subject to optional redemption during the
MOPPRS/CHEERS Spread Period or any Subsequent Spread Period and no redemption
type has been designated, the redemption type will be Par Redemption.
If less than all of the Securities are to be redeemed, the Securities
(or portions thereof) to be redeemed shall be selected by the Trustee by such
method as the Trustee shall deem fair and appropriate in accordance with the
Indenture.
15. Determination of a Floating Rate Basis or a Fixed Rate Basis.
(a) Floating Rate. The Floating Rate Basis for any Spread Period during
which Securities bear interest at a Floating Rate shall be determined by
reference to (i) the CMT Rate, (ii) the Commercial Paper Rate, (iii) LIBOR, (iv)
the Federal Funds Rate, (v) the Prime Rate (vi) the Seven-Day Commercial Paper
Rate, (vii) the Treasury Rate or (viii) the Weekly-Average Federal Funds Rate,
or such other Floating Rate Basis as may be designated by the Company, after the
consultation with the applicable Remarketing Dealer or Dealers or Remarketing
Reset Agent, in each case as selected on the applicable Mode Terms Designation
Date.
If this Security is to bear interest at a Floating Rate, then during
the corresponding Spread Period, (i) unless otherwise specified for a Floating
Rate on the applicable Mode Terms Designation Date, the interest rate on this
Security shall be reset daily, weekly, monthly, quarterly or semiannually (each,
an "Interest Reset Period") and this Security shall bear interest at a per annum
rate (computed on the basis of the actual number of days elapsed over a 360-day
year, if the Floating Rate Basis is the Commercial Paper Rate, the Federal Funds
Rate, LIBOR, the Prime Rate, the Seven-Day Commercial Paper Rate or the
Weekly-Average Federal Funds Rate or on the basis of the actual number of days
in the year, if the Floating Rate Basis is the CMT Rate or the Treasury Rate)
equal to the applicable Floating Rate Basis for the applicable Interest Reset
Period, plus or minus the applicable Spread, Short Term Spread or MOPPRS/CHEERS
Spread , as the case may be, and (ii) interest on this Security shall be payable
either monthly, quarterly, semiannually or otherwise, on such dates (each such
date, an "Interest Payment Date" in respect of the applicable Spread Period) as
specified on the applicable date. Unless otherwise specified in the case of a
Floating Rate, interest on this Security will be payable, in the case of a
Floating Rate which resets (i) daily, weekly or monthly, on the 7th of each
month; (ii) quarterly, on the each February 7, May 7, August 7 and November 7;
and (iii) semiannually, on each May 7 and November 7. The first day of an
Interest Reset Period is referred to herein as an "Interest Reset Date," and,
unless otherwise specified, the Interest Reset Dates for any Spread Period will
be in the case of a Floating Rate which resets (i) daily, each Business Day,
(ii) weekly, on Wednesday of each week, or, in the case of the Treasury Rate, on
Tuesday of each week, or , in the case of the Weekly-Average Federal Funds Rate,
on Monday of each week, (iii) monthly, on the 7th of each month; (iv) quarterly,
on the Monday of each February 7, May 7, August 7 and November 7; and (v)
semiannually, on each May 7 and November 7.
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Unless otherwise specified on the applicable Mode Terms Designation
Date, the interest rate with respect to each Floating Rate Basis shall be
determined in accordance with the applicable provisions below. The interest rate
in effect on each day will be (i) if such day is an Interest Reset Date, the
interest rate determined as of the Interest Determination Date immediately
preceding such Interest Reset Date or (ii) if such day is not an Interest Reset
Date, the interest rate determined as of the Interest Determination Date
immediately preceding the most recent Interest Reset Date.
If any Interest Reset Date would otherwise be a day that is not a
Business Day, the particular Interest Reset Date shall be postponed to the next
succeeding Business Day, except that if LIBOR is the applicable Floating Rate
Basis and that Business Day falls in the next succeeding calendar month, the
particular Interest Reset Date shall be the immediately preceding Business Day.
In addition, if the Treasury Rate is the applicable Floating Rate Basis and the
Interest Determination Date would otherwise fall on an Interest Reset Date, the
particular Interest Reset Date shall be postponed to the next succeeding
Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date shall be the rate determined as of the
applicable "Interest Determination Date", which shall be:
o with respect to the Commercial Paper Rate, the Federal Funds Rate,
the Prime Rate, the Seven-Day Commercial Paper Rate and the
Weekly-Average Federal Funds Rate - the Business Day immediately
preceding the related Interest Reset Date;
o with respect to the CMT Rate - the second Business Day preceding the related
Interest Reset Date;
o with respect to LIBOR - the second London Business Day preceding the related
Interest Reset Date; and
o with respect to the Treasury Rate - the day in the week in which
the related Interest Reset Date falls on which day Treasury Bills
are normally auctioned (i.e., Treasury Bills are normally sold at
auction on Monday of each week, unless that day is a legal
holiday, in which case the auction is normally held on the
following Tuesday, except that the auction may be held on the
preceding Friday); provided, however, that if an auction is held
on the Friday of the week preceding the related Interest Reset
Date, the Interest Determination Date will be the preceding
Friday.
Unless otherwise specified, the "Calculation Date," if applicable,
pertaining to any 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
immediately preceding the applicable Interest Payment Date or Maturity Date, as
the case may be.
The "Index Maturity" means the designated period to maturity of the
instrument or obligation with respect to which the related Floating Rate Basis
will be calculated.
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The Calculation Agent shall determine each Floating Rate Basis in
accordance with the following provisions:
CMT Rate. "CMT Rate" means:
(1) if CMT Telerate Page 7051 is selected for the applicable Spread Period:
(a) the percentage equal to the yield for United States Treasury securities at
"constant maturity" having the Index Maturity selected on the applicable Mode
Terms Designation Date as published in H.15(519) under the caption "Treasury
Constant Maturities", as the yield is displayed on Bridge Telerate, Inc. (or any
successor service) on page 7051 (or any other page as may replace the specified
page on that service) ("Telerate Page 7051"), for the particular Interest
Determination Date; or
(b) if the rate referred to in clause (a) does not so appear on
Telerate Page 7051, the percentage equal to the yield for
United States Treasury securities at "constant maturity"
having the particular Index Maturity and for the particular
Interest Determination Date as published in H.15(519) under
the caption "Treasury Constant Maturities"; or
(c) if the rate referred to in clause (b) does not so appear in
H.15(519), the rate on the particular Interest Determination
Date for the period of the particular Index Maturity as may
then be published by either the Federal Reserve System Board
of Governors or the United States Department of the Treasury
that the Calculation Agent determines to be comparable to the
rate which would otherwise have been published in H.15(519);
or
(d) if the rate referred to in clause (c) is not so published, the
rate on the particular Interest Determination Date calculated by
the Calculation Agent as a yield to maturity based on the
arithmetic mean of the secondary market bid prices at
approximately 3:30 P.M., New York City time, on that Interest
Determination Date of three leading primary United States
government securities dealers in The City of New York (which may
include the Remarketing Reset Agent or its affiliates or, as the
case may be, the Remarketing Dealers or their affiliates) (each a
"Reference Dealer"), selected by the Calculation Agent from five
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 maturity equal to the particular
Index Maturity, a remaining term to maturity no more than one
year shorter than that Index Maturity and in a principal amount
that is representative for a single transaction in the securities
in that market at that time; or
(e) if fewer than five but more than two of the prices referred to
in clause (d) are provided as requested, the rate on the
particular Interest Determination Date calculated by the
Calculation Agent based on the arithmetic mean of the bid
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prices obtained and neither the highest nor the lowest of the
quotations shall be eliminated; or
(f) if fewer than three prices referred to in clause (d) are provided
as requested, the rate on the particular Interest Determination
Date calculated by the Calculation Agent as a yield to maturity
based on the arithmetic mean of the secondary market bid prices
as of approximately 3:30 P.M., New York City time, on that
Interest Determination Date of three Reference Dealers selected
by the Calculation Agent from five 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 maturity
greater than the particular Index Maturity, a remaining term to
maturity closest to that Index Maturity and in a principal amount
that is representative for a single transaction in the securities
in that market at that time; or
(g) if fewer than five but more than two prices referred to in
clause (f) are provided as requested, the rate on the
particular Interest Determination Date calculated by the
Calculation Agent based on the arithmetic mean of the bid
prices obtained and neither the highest nor the lowest of the
quotations will be eliminated; or
(h) if fewer than three prices referred to in clause (f) are
provided as requested, the CMT Rate in effect on the
particular Interest Determination Date.
(2) if CMT Telerate Page 7052 is selected for the applicable Spread Period:
(a) the percentage equal to the one-week or one-month, as selected on
the applicable Mode Terms Designation Date, average yield for United States
Treasury securities at "constant maturity" having the Index Maturity
selected on the applicable Date, as published in H.15(519) opposite the
caption "Treasury Constant Maturities", as the yield is displayed on Bridge
Telerate, Inc. (or any successor service) (on page 7052 or any other page
as may replace the specified page on that service) ("Telerate Page 7052"),
for the week or month, as applicable, ended immediately preceding the week
or month, as applicable, in which the particular Interest Determination
Date falls; or
(b) if the rate referred to in clause (a) does not so appear on
Telerate Page 7052, the percentage equal to the one-week or one-month, as
selected on the applicable Mode Terms Determination Date, average yield for
United States Treasury securities at "constant maturity" having the
particular Index Maturity and for the week or month, as applicable,
preceding the particular Interest Determination Date as published in
H.15(519) opposite the caption "Treasury Constant Maturities"; or
(c) if the rate referred to in clause (b) does not so appear in
H.15(519), the one-week or one-month, as selected on the Mode Terms
Designation Date,
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average yield for United States Treasury securities at "constant
maturity" having the particular 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 the particular Interest Determination Date falls; or
(d) if the rate referred to in clause (c) is not so published, the
rate on the particular Interest Determination Date calculated by the
Calculation Agent as a yield to maturity based on the arithmetic mean of
the secondary market bid prices at approximately 3:30 P.M., New York City
time, on that Interest Determination Date of three Reference Dealers
selected by the Calculation Agent from five 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 maturity equal to the particular Index Maturity, a
remaining term to maturity no more than one year shorter than that Index
Maturity and in a principal amount that is representative for a single
transaction in the securities in that market at that time; or
(e) if fewer than five but more than two of the prices referred to in
clause (d) are provided as requested, the rate on the particular Interest
Determination Date calculated by the Calculation Agent based on the
arithmetic mean of the bid prices obtained and neither the highest nor the
lowest of the quotations shall be eliminated; or
(f) if fewer than three prices referred to in clause (d) are provided
as requested, the rate on the particular Interest Determination Date
calculated by the Calculation Agent as a yield to maturity based on the
arithmetic mean of the secondary market bid prices as of approximately 3:30
P.M., New York City time, on that Interest Determination Date of three
Reference Dealers selected by the Calculation Agent from five 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 maturity greater than the
particular Index Maturity, a remaining term to maturity closest to that
Index Maturity and in a principal amount that is representative for a
single transaction in the securities in that market at the time; or
(g) if fewer than five but more than two prices referred to in clause
(f) are provided as requested, the rate on the particular Interest
Determination Date calculated by the Calculation Agent based on the
arithmetic mean of the bid prices obtained and neither the highest or the
lowest of the quotations will be eliminated; or
(h) if fewer than three prices referred to in clause (f) are provided
as requested, the CMT Rate in effect on that Interest Determination Date.
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If two United States Treasury securities with an original maturity
greater than the Index Maturity selected on the applicable Mode Terms
Designation Date, have remaining terms to maturity equally close to the
particular Index Maturity, the quotes for the United States Treasury security
with the shorter original remaining term to maturity will be used.
Commercial Paper Rate. "Commercial Paper Rate" means:
(1) the Money Market Yield on the Interest Determination Date of
the rate for commercial paper having the Index Maturity
selected on the applicable Mode Terms Designation Date
published in H.15(519) under the caption "Commercial
Paper-Nonfinancial"; or
(2) if the rate described in clause (1) is not so published by
3:00 P.M., New York City time, on the related Calculation
Date, the rate on the Interest Determination Date for
commercial paper having the Index Maturity selected on the
applicable Mode Terms Designation Date, published in H.15
Daily Update, or other recognized electronic source used for
the purpose of displaying the applicable rate, under the
caption "Commercial Paper-Nonfinancial"; or
(3) if the rates referred to in clauses (1) and (2) are not so
published by 3:00 P.M., New York City time, on the related calculation
date, the rate on the Interest Determination Date calculated by the
Calculation Agent as the Money Market Yield of the arithmetic mean of the
offered rates at approximately 11:00 A.M., New York City time, on the
Interest Determination Date of three leading dealers of United States
dollar commercial paper in The City of New York (which may include the
Remarketing Reset Agent and its affiliates or, as the case may be, the
Remarketing Dealers and their affiliates), selected by the Calculation
Agent for commercial paper having the Index Maturity selected on the
applicable Mode Terms Designation Date, placed for industrial issuers whose
bond rating is "Aa", or the equivalent, from a nationally recognized
statistical rating organization; or
(4) if the dealers selected by the Calculation Agent are not quoting
as mentioned in clause (3), the Commercial Paper Rate in effect on the
Interest Determination Date.
Federal Funds Rate. "Federal Funds Rate" means:
(1) the rate on the Interest Determination Date for United States
dollar federal funds as published in H.15(519) under the
heading "Federal Funds (Effective)", as displayed on Bridge
Telerate, Inc. or any successor service on page 120 or any
other page as may replace the applicable page on that service
("Telerate Page 120"); or
(2) if the rate referred to in clause (1) does not appear on
Telerate Page 120 or is not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the rate on
the Interest Determination Date for United States dollar
federal funds published in H.15 Daily Update, or other
recognized electronic source used for
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the purpose of displaying the applicable rate, under the
caption "Federal Funds/Effective Rate"; or
(3) if the rates referred to in clauses (1) and (2) are not so
published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate on the Interest Determination Date
calculated by the Calculation Agent as the arithmetic mean of the
rates for the last transaction in overnight United States dollar
federal funds arranged by three leading brokers of United States
dollar federal funds transactions in The City of New York (which
may include the Remarketing Reset Agent or its affiliates or, as
the case may be, the Remarketing Dealers or their affiliates),
selected by the Calculation Agent before 9:00 A.M., New York City
time, on the Interest Determination Date; or
(4) if the brokers selected by the Calculation Agent are not quoting
as mentioned in clause (3), the Federal Funds Rate in effect on
the Interest Determination Date.
LIBOR. "LIBOR" means:
(1) the rate for deposits in U.S. dollars, having the Index
Maturity selected on the applicable Mode Terms Designation
Date, or on November 2, 2000, in the case of the Initial
Period, commencing on the Interest Reset Date, that appears as
of 11:00 A.M., London time, on the particular Interest
Determination Date on the display on Bridge Telerate, Inc. or
any successor service on page 3750 or any page as may replace
the specified page on that service for the purpose of
displaying the London interbank rates of major banks for U.S.
dollars ("Telerate Page 3750"); or
(2) if no rate appears on the particular Interest Determination Date
on Telerate Page 3750 as specified in clause (1), the rate
calculated by the Calculation Agent as the arithmetic mean of at
least two offered quotations obtained by the Calculation Agent
after requesting the principal London offices of each of four
major reference banks (which may include affiliates of the
Remarketing Reset Agent or, as the case may be, the Remarketing
Dealers) in the London interbank market to provide the
Calculation Agent with its offered quotation for deposits in U.S.
dollars for the period of the applicable Index Maturity
commencing on the related Interest Reset Date, by 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 for a single transaction in U.S.
dollars in that market at that time; or
(3) if fewer than two offered quotations referred to in clause (2)
are so provided, the rate on the Interest Determination Date
calculated by the Calculation Agent as the arithmetic mean of the
rates quoted at approximately 11:00 A.M., in The City of New
York, on the Interest Determination Date by three major banks
(which may include affiliates of the Remarketing Reset Agent or,
as the case may be, the Remarketing Dealers), in The City of New
York selected by the Calculation Agent for loans in U.S. dollars
to leading European banks, having the applicable
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Index Maturity and in a principal amount that is representative
for a single transaction in U.S. dollars in that market at that
time;
(4) if the banks so selected by the Calculation Agent are not quoting
as mentioned in clause (3), LIBOR in effect on the particular
Interest Determination Date.
Prime Rate. "Prime Rate" means:
(1) the rate on the Interest Determination Date as published in
H.15(519) under the heading "Bank Prime Loan"; or
(2) if the rate referred to in clause (1) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the Interest Determination Date published in H.15 Daily
Update, or another recognized electronic source used for the
purpose of displaying the applicable rate under the caption "Bank
Prime Loan"; or
(3) if the rates referred to in clauses (1) and (2) are not so
published by 3:00 P.M., New York City time, on the related
Calculation Date, the rate calculated by the Calculation Agent as
the arithmetic mean of the rates of interest publicly announced
by each bank that appears on the Reuters Screen USPRIME 1 Page
(as defined below) as the particular bank's prime rate or base
lending rate as of 11:00 A.M., New York City time, on the
Interest Determination Date; or
(4) if fewer than four rates described in clause (3) by 3:00 P.M.,
New York City time, on the related Calculation Date are shown on
Reuters Screen USPRIME 1, the rate on the Interest Determination
Date calculated by the Calculation Agent as the arithmetic mean
of the prime rates or base lending rates quoted on the basis of
the actual number of days in the year divided by a 360-day year
as of the close of business on the Interest Determination Date by
three major banks (which may include affiliates of the
Remarketing Reset Agent or, as the case may be, the Remarketing
Dealers) in The City of New York selected by the Calculation
Agent; or
(5) if the banks selected by the Calculation Agent are not quoting as
mentioned in clause (4), the Prime Rate in effect on the Interest
Determination Date.
"Reuters Screen USPRIME 1 Page" means the display designated as page
"USPRIME 1" on the Reuter Monitor Money Rates Service (or any successor service)
on the USPRIME 1 Page (or such other page as may replace the USPRIME 1 Page on
such service) for the purpose of displaying prime rates or base lending rates of
major United States banks.
Seven-Day Commercial Paper Rate. "Seven Day Commercial Paper Rate"
means:
(1) the Money Market Yield of the 7-day "AA" nonfinancial
Commercial Paper Rate shown on the internet world wide web
page (or any successor page) of the Board of Governors of the
Federal Reserve System (www.bog.frb.fed.us/releases/CP/) at
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11:00 a.m., New York City time, on the Interest Determination
Date for the Business Day immediately preceding such Interest
Determination Date; or
(2) if the rate described in clause (1) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the Interest Determination Date for the Business Day
immediately preceding such Interest Determination Date calculated
by the Calculation Agent as the Money Market Yield of the
arithmetic mean of the offered rates at approximately 11:00 A.M.,
New York City time, on the Interest Determination Date of three
leading dealers of United States dollar commercial paper in The
City of New York (which may include the Remarketing Dealers and
their affiliates or, as the case may be, the Remarketing Reset
Agent and its affiliates), selected by the Calculation Agent for
7-day commercial paper placed for industrial issuers whose bond
rating is "Aa", or the equivalent, from a nationally recognized
statistical rating organization; or
(3) if the dealers selected by the Calculation Agent are not quoting
as mentioned in clause (2), the Seven- Day Commercial Paper Rate
in effect on the Interest Determination Date.
Treasury Rate. "Treasury Rate" means:
(1) the rate from the auction held on the Interest Determination Date
(the "Auction") of direct obligations of the United States
("Treasury Bills") having the Index Maturity selected on the
applicable Mode Terms Designation Date, under the caption
"INVESTMENT RATE" on the display on Bridge Telerate, Inc. (or any
successor service) on page 56 (or any other page as may replace
that page on that service) ("Telerate Page 56") or page 57 (or
any other page as may replace that page on that service)
("Telerate Page 57"); or
(2) if the rate referred to in clause (1) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
Bond Equivalent Yield (as defined below) of the rate for the
applicable Treasury Bills as published in H.15 Daily Update, or
another recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Auction High"; or
(3) if the rate referred to in clause (2) is not so 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 as announced by the United States Department of
the Treasury; or
(4) if the rate referred to in clause (3) is not so 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 particular
Interest Determination Date of the applicable Treasury Bills as
published in H.15(519) under the caption "U.S. Government
Securities/Treasury Bills/Secondary Market"; or
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(5) if the rate referred to in clause (4) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the particular Interest Determination Date of the
applicable Treasury Bills as published in H.15 Daily Update, or
another recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "U.S.
Government Securities/Treasury Bills/Secondary Market"; or
(6) if the rate referred to in clause (5) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the particular 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 that Interest
Determination Date, of three primary United States government
securities dealers (which may include the Remarketing Reset Agent
or its affiliates or, as the case may be, the Remarketing Dealers
or their affiliates) selected by the Calculation Agent for the
issue of Treasury Bills with a remaining maturity closest to the
Index Maturity selected on the applicable Mode Terms Designation
Date; or
(7) if the dealers so selected by the Calculation Agent are not
quoting as mentioned in clause (6), the Treasury Rate in effect
on the particular Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
[Bond equivalent yield equals D times N divided by 360 minus
(D times M), all mutiplied by 100.]
where "D" refers to the applicable per annum rate for Treasury Bills quoted on a
bank discount basis and expressed as a decimal, "N" refers to 365 or 366, as the
case may be, and "M" refers to the actual number of days in the applicable
Interest Reset Period.
Weekly-Average Federal Funds Rate. "Weekly-Average Federal Funds Rate
" means:
(1) the rate equal to the weekly average rate for the week ending in
the week in which the particular Interest Determination Date
falls for United States dollar federal funds as published in
H.15(519) under the caption "Federal Funds (Effective), Week
Ending"; or
(2) if the rate referred to in clause (1) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the particular Interest Determination Date for United
States dollar federal funds as published in H.15 Daily Update, or
such other recognized electronic source used for the purpose of
displaying the applicable rate, under the caption "Federal Funds
(Effective), Week Ending"; or
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<PAGE>
(3) if the rate referred to in clause (2) is not so published by 3:00
P.M., New York City time, on the related Calculation Date, the
rate on the particular Interest Determination Date calculated by
the Calculation Agent as the arithmetic mean of the rates for the
last transaction in overnight United States dollar federal funds
arranged by three leading brokers of United States dollar federal
funds transactions in The City of New York (which may include the
Remarketing Dealers or their affiliates or, as the case may be,
the Remarketing Reset Agent or its affiliates) selected by the
Calculation Agent prior to 9:00 A.M., New York City time, on that
Interest Determination Date; or
(4) if the brokers selected by the Calculation Agent are not quoting
as mentioned in clause (3) the Weekly-Average Federal Funds Rate
in effect on the Interest Determination Date.
(b) Fixed Rate. The "Fixed Rate Basis" for any Spread Period means the
semiannual equivalent yield to maturity or interpolated yield to maturity (on a
day count basis) determined by 1:00 p.m., New York City time, on the
MOPPRS/CHEERS Spread Determination Date for the MOPPRS/CHEERS Mode or, as the
case may be, on the Fixed Interest Determination Date for any Subsequent Spread
Period (expressed as a bond equivalent, on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the applicable United
States Treasury security (or securities in the case of interpolation), selected
by the Calculation Agent after consultation with the applicable Remarketing
Dealer or, as the case may be, the Remarketing Reset Agent, as having a maturity
or interpolated maturities comparable to the term selected for the following
Spread Period, which would be used in accordance with customary financial
practice in pricing new issues of corporate debt securities of comparable
maturity to the term selected for the following Spread Period.
Interest shall be payable semiannually in arrears on the Interest
Payment Dates specified on the applicable Mode Terms Designation Date at (i) the
MOPPRS/CHEERS Rate beginning on the applicable Mandatory Tender Date and
continuing for the term of the MOPPRS/CHEERS Spread Period, in the case of the
MOPPRS/CHEERS Mode, or (ii) the applicable Fixed Rate, beginning on the
applicable Optional Tender Date and continuing for the duration of the relevant
Subsequent Spread Period, in the case of the Remarketing Reset Mode. Interest
shall be computed on the basis of a 360-day year of twelve 30-day months.
16. Effect of Events of Default. If an Event of Default, as defined in the
Indenture, shall occur and be continuing, the principal of the Securities may be
declared due and payable in the manner and with the effect provided in the
Indenture.
17. Defeasance. Notwithstanding any provision to the contrary in the Indenture
or otherwise, prior to the Mandatory Tender Date for remarketing in the
MOPPRS/CHEERS Mode, neither the Company nor any of its subsidiaries or
affiliates shall defease, purchase or otherwise acquire, or enter into any
agreement to defease, purchase or otherwise acquire, any of the Securities prior
to the remarketing thereof by the applicable Remarketing Dealer.
18. Maintenance in Book-Entry Form. Notwithstanding any provision to the
contrary set forth in the Indenture, the Company (i) shall use its reasonable
efforts to maintain the
34
<PAGE>
Securities in book-entry form with DTC or any successor thereto and to appoint
a successor depositary to the extent necessary to maintain the Securities
in book-entry form, and (ii) waives any discretionary right it otherwise has
under the Indenture to cause the Securities to be issued in certificated form,
unless such issuance is required by law or judicial or administrative order.
19. Obligation to Pay Principal, Premium, if any, and Interest. No reference
herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and
unconditional, to pay principal, premium, if any, and interest in respect of
this Security at the times, places and rate or formula, and in the manner and
coin or currency, herein prescribed.
No director, officer, employee or stockholder, as such, of the Company
shall have any liability for any obligations of the Company under this Security
or the Indenture or for any claim based on, in respect of or by reason of such
obligations or their creation. Each Holder, by accepting this Security, waives
and releases all such liability. The waiver and release are part of the
consideration for the issue of this Security.
20. CUSIP Number. Pursuant to a recommendation promulgated by the
Committee on Uniform Note Identification Procedures, the Company has caused a
CUSIP number to be printed on this Security and has directed the Trustee to use
the CUSIP number as a convenience to Holders. No representation is made as to
the correctness of such numbers and reliance may be place only on the other
identification numbers printed on this Security.
21. Amendment and Modification. The Indenture permits, with certain
exceptions as therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the Holders of the
Securities at any time by the Company and the Trustee with the consent of the
Holders of not less than a majority of the aggregate principal amount of all
Securities at the time outstanding. The Indenture also contains provisions
permitting the Holders of not less than a majority of the aggregate principal
amount of the outstanding Securities, on behalf of the Holders of all such
Securities, to waive compliance by the Company with certain provisions of the
Indenture. Furthermore, provisions in the Indenture permit the Holders of not
less than a majority of the aggregate principal amount of the outstanding
Securities, in certain instances, to waive, on behalf of all of the Holders of
Securities, certain past defaults under the Indenture and their consequences.
Any such consent or waiver by the Holder of this Security shall be conclusive
and binding upon such Holder and upon all future Holders of this Security and
other Securities issued upon the registration or transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation or such consent or waiver is
made upon this Security. Without the consent of any Holder, (i) the Company and
the Trustee may amend or supplement the Indenture or the Securities to cure any
ambiguity, defect or inconsistency or to make certain other specified changes or
any change that does not materially adversely affect the rights of any Holder
and (ii) the tender and settlement procedures may be modified as provided in
Sections 11 and 13(c) above. Holders of Securities may not enforce their rights
pursuant to the Indenture or the Securities except as permitted in the
Indenture.
22. Treatment for United States Federal Income Tax Purposes. Each
Holder of this Security, by virtue of its purchase hereof, agrees, with respect
to the period from the Original Issue Date to the Initial Mandatory Tender Date,
to (a) treat this Security, for United States
35
<PAGE>
federal, state and local income tax purposes, as a variable rate debt
instrument (as defined in U.S. Treasury Regulation Section 1.1275-5) that
matures on the Initial Mandatory Tender Date and bears qualified stated
interest (as defined in U.S. Treasury Regulation Section 1.1273-1(c)), and
(b) file all United States federal, state and local income, franchise and
estate tax returns consistent with the treatment set forth in clause (a) of this
Section (in the absence of any change or clarification in applicable law, by
regulation or otherwise, requiring a different characterization or
treatment thereof).
23. Transfer and Exchange. As provided in the Indenture and subject to
certain limitations therein and herein set forth (including without limitation
the restrictions on transfer under the Indenture in the event this Security is a
global Security as evidenced by the legend first set forth above and provided in
the Indenture), the transfer of this Security is registrable in the Security
Register of the Company upon surrender of this Security for registration of
transfer at the office or agency of the Security Registrar in The City of New
York, New York designated for such purpose, duly endorsed by, or accompanied by
a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Securities, of authorized
denominations and for the same aggregate principal amount and otherwise bearing
identical terms and provisions, will be issued to the designated transferee or
transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth (including without limitation the restrictions on transfer
under the Indenture in the event this Security is a global Security as evidenced
by the legend first set forth above and provided in the Indenture), this
Security is exchangeable for a like aggregate principal amount of Securities of
different authorized denominations but otherwise having the same terms and
conditions, as requested by the Holder hereof surrendering the same at the
office or agency of the Security Registrar in The City of New York, New York
designated for such purpose.
No service charge shall be made for any such registration of transfer
or exchange of Securities, but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto. Initially, the Trustee will act as Security
Registrar and the office at which this Security must be surrendered for
registration of transfer or exchange is currently the corporate trust department
of the Trustee at 101 Barclay Street, New York, New York 10286.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the person in whose name this Security is registered as the owner thereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
24. Governing Law. The Indenture and this Security shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed entirely in such State without regard to
conflict of law principles.
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<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - Custodian
----------- ------------
(Cust) (minor)
under Uniform Gifts to Minors Act
----------------------(State)
TEN ENT - as tenants by the entireties JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the
above list.
------------------------------------
ASSIGNMENT
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 typewrite name and address including postal zip code of
assignee)
this Security and all
rights thereunder hereby irrevocably constituting and appointing
Attorney to transfer this Security
on the books of the Trustee, with full power of substitution in the premises.
Dated:
Notice: The signature(s) on
this Assignment must
correspond with the name(s)
as written upon the face of
this Security in every
particular, without
alteration or enlargement
or any change whatsoever.
--------
"MandatOry Par Put Remarketed SecuritiesSM" and "MOPPRSSM" are service marks
owned by Merrill Lynch & Co., Inc.
"CHase ExtendiblE Remarketable
SecuritiesSM" and "CHEERSSM"
are service marks of The
Chase Manhattan Corporation.
