United States
Securities and Exchange Commission
Washington, D.C. 20549
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Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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Date of Report: August 3, 1998
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BOEING CAPITAL CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 95-2564584 0-10795
(State or other (I.R.S. Employer (Commission File No.)
jurisdiction of Identification No.)
Incorporation or
Organization)
4060 Lakewood Boulevard, 6th Floor - Long Beach, California 90808-1700
(Address of principal executive offices)
(562) 627-3299
(Registrant's telephone number, including area code)
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<PAGE>
Item 5. Other Events
Exhibits are filed herewith in connection with the Registration Statement on
Form S-3 (File No. 333-37635) filed by Boeing Capital Corporation (the
"Company"), with the Securities and Exchange Commission. The exhibits filed
herewith include the four forms of medium-term notes and the distribution
agreement to be used under such Registration Statement.
Item 7. Financial Statements and Exhibits
(c) EXHIBITS
(1) Form of Distribution Agreement
4(e) Form of Senior Fixed Rate Medium-Term Note.
4(f) Form of Subordinated Fixed Rate Medium-Term Note.
4(g) Form of Senior Floating Rate Medium-Term Note.
4(h) Form of Subordinated Floating Rate Medium-Term Note.
<PAGE>
Signature
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned, hereunto duly authorized.
Boeing Capital Corporation
August 3, 1998 /s/ Steven W. Vogeding
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Steven W. Vogeding
Vice President and Chief Financial
Officer (Principal Financial Officer) and
Registrant's Authorized Officer
EXHIBIT 1
BOEING CAPITAL CORPORATION
(a Delaware corporation)
Series X Medium-Term Notes
Due 9 Months or More from Date of Issue
DISTRIBUTION AGREEMENT
July 31, 1998
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower, World Financial Center
New York, New York 10281-1218
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Ladies/Gentlemen:
Boeing Capital Corporation, a Delaware corporation (the "Company"),
confirms its agreement with PaineWebber Incorporated, Chase Securities Inc.,
Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and
Morgan Stanley & Co. Incorporated (each, an "Agent", and collectively, the
"Agents") with respect to the issue and sale by the Company of its Series X
Medium-Term Notes Due 9 Months or More from Date of Issue (the "Notes"). The
Notes will be either an authorized series of the Company's senior unsecured debt
securities (the "Senior Securities") issued pursuant to an indenture dated as of
April 15, 1987, as supplemented by the First Supplemental Indenture dated as of
June 12, 1995 (the "Senior Indenture"), between the Company and Bankers Trust
Company, as trustee ("Bankers Trust" or the "Trustee"), or an authorized series
of the Company's subordinated unsecured debt securities (the "Subordinated
Securities") to be issued pursuant to an indenture, dated as of June 15, 1988,
as supplemented by the First Supplemental Subordinated Indenture, dated as of
June 12, 1995 (the "Subordinated Indenture") between the Company and Bankers
Trust, as successor trustee. The Senior Securities and the Subordinated
Securities are herein collectively referred to as the "Securities" and the
Senior Indenture and the Subordinated Indenture are herein collectively referred
to as the "Indentures". All capitalized terms used herein, unless otherwise
defined herein, shall have the respective meanings ascribed to them in the
Indentures.
As of the date hereof, the Company has authorized the issuance and sale
of up to U.S. $600,000,000 aggregate initial offering price (or its equivalent,
based upon the applicable exchange rate at the time of issuance, in such foreign
currencies, units or composites of two or more thereof as the Company shall
designate at the time of issuance) of Notes to or through the Agents pursuant to
the terms of this Agreement. It is understood, however, that the Company may
from time to time authorize the issuance of additional Notes and that such
additional Notes may be sold to or through the Agents pursuant to the terms of
this Agreement, all as though the issuance of such Notes were authorized as of
the date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors (as may from time to
time be agreed to by the Company and the applicable Agent) and for the sale of
Notes by the Company directly to investors (as may from time to time be agreed
to by the Company and the applicable Agent), in which case such Agent will act
as an agent of the Company in soliciting purchases of the Notes.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-37635) for the registration
of debt securities, including the Notes, under the Securities Act of 1933, as
amended (the "1933 Act"), and the offering thereof from time to time in
accordance with Rule 415 of the rules and regulations of the SEC under the 1933
Act (the "1933 Act Regulations"). Such registration statement has been declared
effective by the SEC and the Indentures have been qualified under the Trust
Indenture Act of 1939, as amended (the "1939 Act"). Such registration statement
(and any further registration statements which may be filed by the Company for
the purpose of registering additional Notes and in connection with which this
Agreement is included or incorporated by reference as an exhibit) and the
prospectus constituting a part thereof, and any prospectus supplement and
pricing supplement relating to the Notes, including all documents incorporated
therein by reference, as from time to time amended or supplemented by the filing
of documents pursuant to the Securities Exchange Act of 1934, as amended (the
"1934 Act") or the 1933 Act or otherwise, are referred to herein as the
"Registration Statement" and the "Prospectus", respectively, except that if any
revised prospectus shall be provided to the Agents by the Company for use in
connection with the offering of the Notes, whether or not such revised
prospectus is required to be filed by the Company pursuant to Rule 424(b) of the
1933 Act Regulations, the term "Prospectus" shall refer to such revised
prospectus from and after the time it is first provided to the Agents for such
use.
<PAGE>
1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. Subject to the terms and conditions stated herein and
subject to the reservation by the Company of the right to sell Notes directly on
its own behalf, the Company hereby agrees that Notes will be sold exclusively to
or through the Agents except as otherwise described below. The Company agrees
that, during the period the Agents are acting as the Company's agents hereunder,
unless otherwise agreed, the Company will not appoint other agents to act on its
behalf, or to assist it, in the placement of the Notes unless the Company has
entered into an agreement or agreements (which may incorporate by reference
certain provisions hereof and which shall incorporate and be subject to the
commission schedule set forth in Schedule A hereto with respect to any Notes
sold through such agent or agents, acting as an agent) with such agent or agents
and has notified the Agents promptly upon entering into any such agreement.
(b) SALE OF NOTES. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but one or more Agents may agree
from time to time to purchase Notes as principal for resale to investors and
other purchasers determined by such Agent or Agents. Any such purchase of Notes
by an Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by an Agent and the Company,
such Agent, acting solely as agent for the Company and not as principal, will
solicit purchases of the Notes. Such Agent will communicate to the Company,
orally, each offer to purchase Notes solicited by it on an agency basis, other
than those offers rejected by such Agent. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of Notes,
as a whole or in part, and any such rejection shall not be deemed a breach of
its agreement contained herein. The Company may accept or reject any proposed
purchase of Notes, in whole or in part. Such Agent shall make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by it and accepted by the Company. Such Agent
shall not have any liability to the Company in the event that any such purchase
is not consummated for any reason. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (unless the Company's default arose out of a default, gross
negligence or willful misconduct on the part of the Agent) (i) hold such Agent
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (ii) notwithstanding such default, pay to such Agent
any commission to which it would otherwise be entitled.
(e) RELIANCE. The Company and the Agents agree that any Notes purchased
by one or more Agents as principal shall be purchased, and any Notes the
placement of which an Agent arranges as agent shall be placed by such Agent, in
reliance on the representations, warranties, covenants and agreements of the
Company contained herein and on the terms and conditions and in the manner
provided herein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to one or more Agents as principal or through an
Agent as agent), as of the date of each delivery of Notes (whether to one or
more Agents as principal or through an Agent as agent) (the date of each such
delivery to one or more Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that the Registration Statement or the
Prospectus shall be amended or supplemented or there is filed with the SEC any
document incorporated by reference into the Prospectus (each of the times
referenced above being referred to herein as a "Representation Date"), as
follows:
(i) REGISTRATION STATEMENT AND THE PROSPECTUS. The
Registration Statement and the Prospectus, at the time the Registration
Statement became effective, complied, and as of the applicable
Representation Date will comply, in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the SEC promulgated thereunder
(the "1939 Act Regulations"). The Registration Statement, at the time
the Registration Statement became effective, did not, and as of the
applicable Representation Date will not, contain any untrue statement
of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading. The Prospectus, at the time the Registration Statement
became effective did not, and as of the applicable Representation Date
will not, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading; PROVIDED, HOWEVER, that the representations and
warranties in this subsection shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in
reliance upon and in conformity with information furnished in writing
to the Company by any of the Agents expressly for use in the
Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility under the 1939 Act (Form T-1) of the Trustees under the
Indentures. After a post-effective amendment to the Registration
Statement is filed and has become effective under the 1933 Act, the
representations and warranties contained in this subsection shall refer
to the Registration Statement as so amended.
(ii) ACCOUNTANTS. To the best of the Company's knowledge,
the accountants who certified the financial statements and supporting
schedules included or incorporated by reference in the Registration
Statement and Prospectus are independent public accountants as required
by the 1933 Act and the 1933 Act Regulations.
(iii) FINANCIAL STATEMENTS. The consolidated financial
statements included or incorporated by reference in the Registration
Statement and Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as at the
dates indicated and the results of their operations for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved, except as indicated therein; and the
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein.
(iv) INCORPORATED DOCUMENTS. The documents incorporated
by reference in the Prospectus, at the time they were or hereafter are
filed with the SEC, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations
thereunder (the "1934 Act Regulations"), and, when read together and
with the other information in the Prospectus, at the time the
Registration Statement became, and any amendments thereto become,
effective, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were or are made, not misleading.
(v) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated or
incorporated by reference therein or contemplated thereby, (A) there
has been no material adverse change in the financial condition,
earnings or cash flow of the Company and its subsidiaries considered as
one enterprise, or any development reasonably likely to have a material
adverse effect on the financial condition of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business and (B) there has been no material
transaction entered into by the Company or any of its subsidiaries
other than those in the ordinary course of business.
(vi) DUE INCORPORATION AND QUALIFICATION. The Company has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Delaware with corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which the failure so to
qualify and be in good standing would materially and adversely affect
the financial condition of the Company.
(vii) SUBSIDIARIES. Each subsidiary corporation of the
Company which from time to time constitutes a "significant subsidiary"
as such term is defined in Rule 1-02 of Regulation S-X (each a
"Material Subsidiary" and together the "Material Subsidiaries") has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which the failure so to
qualify and be in good standing would materially and adversely affect
the financial condition of the Company and its subsidiaries considered
as one enterprise; all of the issued and outstanding capital stock of
each such Material Subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable; and, except as otherwise
disclosed in the Registration Statement or the Prospectus, the capital
stock of each such Material Subsidiary owned by the Company, directly
or through subsidiaries, is owned free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity.
(viii) CAPITAL STOCK. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1997 and incorporated by reference into the Registration Statement
and the Prospectus and the shares of issued and outstanding Common
Stock set forth thereunder have been duly authorized and validly issued
and are fully paid and non-assessable and are owned, of record and
beneficially, by the Holding Company.
(ix) NO DEFAULTS; REGULATORY APPROVALS; NO AUTHORIZATION,
APPROVAL OR CONSENT REQUIRED. Neither the Company nor any of its
Material Subsidiaries is in violation of its charter or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other material instrument to
which it is a party or by which it or any of them or their properties
may be bound; and the execution and delivery of this Agreement and the
Indentures and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or default under,
or result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
Material Subsidiaries pursuant to any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its Material Subsidiaries is a party or by which it
or any of them may be bound or to which any of the property or assets
of the Company or any of its Material Subsidiaries is subject, nor will
such action result in any violation of the provisions of the charter or
by-laws of the Company or, to the best of its knowledge, any law,
administrative regulation or administrative or court decree; and no
consent, approval, authorization, order or decree of any court or
governmental authority or agency is required for the consummation by
the Company of the transactions contemplated by this Agreement, except
such as may be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations, the 1939 Act Regulations or state securities or Blue Sky
laws in connection with the purchase and distribution of the Notes.
(x) REGULATORY CERTIFICATES, AUTHORITIES AND PERMITS.
The Company and its Material Subsidiaries own or possess adequate
certificates, authorities or permits issued by the appropriate state,
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, and neither the Company nor any of
its Material Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially
adversely affect the financial condition, earnings or cash flow of the
Company and its subsidiaries considered as one enterprise.
(xi) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set
forth in the Prospectus or incorporated by reference therein, there is
no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, threatened against or affecting, the Company or any of
its Material Subsidiaries which is required to be disclosed in the
Prospectus or which has more than a remote possibility of resulting in
any material adverse change in the financial condition, earnings or
cash flow of the Company and its subsidiaries considered as one
enterprise, or in any development reasonably likely to have a material
adverse effect on the financial condition of the Company and its
subsidiaries, considered as one enterprise, or which has more than a
remote possibility of materially and adversely affecting the material
properties or assets thereof or has more than a remote possibility of
materially and adversely affecting the consummation of the transactions
contemplated by the Indentures or this Agreement or the transactions
contemplated herein or therein; and there are no material contracts or
documents of the Company or any of its Material Subsidiaries which are
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Regulations which have not been so filed.
(xii) AUTHORIZATION AND VALIDITY OF THE NOTES. The Notes
have been duly authorized for issuance and sale pursuant to this
Agreement and, when issued, authenticated and delivered pursuant to the
provisions of this Agreement and of the Indentures against payment of
the consideration therefor in accordance with this Agreement, the Notes
will be valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, or other laws
relating to or affecting creditors' rights generally or by general
equity principles, and will be entitled to the benefits of the
Indentures, which will be substantially in the forms heretofore
delivered to the Agents; and the Notes and the Indentures conform in
all material respects to all statements relating thereto contained in
the Prospectus.
(xiii) NO LABOR DISPUTES. Other than as set forth in the
Prospectus, no labor dispute by the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent
which might be expected to have a material adverse effect upon the
financial condition, earnings or cash flow of the Company and its
subsidiaries, considered as one enterprise.
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of
the Company and delivered to one or more Agents or to counsel for the Agents in
connection with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and warranty by the
Company to such Agent or Agents as to the matters covered thereby on the date of
such certificate and at each Representation Date subsequent thereto (except that
where similar certificates have been given over time the most recent certificate
will supersede prior certificates).
3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) Purchases as Principal. Unless otherwise agreed by an Agent and the
Company, Notes shall be purchased by such Agent as principal. Such purchases
shall be made in accordance with terms agreed upon by one or more Agents and the
Company (which terms, unless otherwise agreed, shall, to the extent applicable,
include those terms specified in Exhibit A hereto and may be agreed upon orally,
with written confirmation prepared by such Agent or Agents and sent by
telecopier to the Company). An Agent's commitment to purchase Notes as principal
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Unless the context otherwise requires, references
herein to "this Agreement" shall include the agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any other broker or dealer in connection with
the resale of the Notes purchased by them as principal and may allow any portion
of the discount received in connection with such purchases from the Company to
such brokers and dealers. At the time of each purchase of Notes by one or more
Agents as principal, the Company and such Agent or Agents shall agree and
specify orally, confirmed in writing, whether any stand-off provision (as
referred to in Section 4(l) hereof) or any officers' certificate, opinion of
counsel or comfort letter (such as those referred to in Sections 7(b), 7(c) and
7(d) hereof) will be required.
(b) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable best efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth herein and in the Prospectus. The
Agents are not authorized to appoint sub-agents with respect to Notes sold
through them as agent. All Notes sold through an Agent as agent will be sold at
100% of their principal amount unless otherwise agreed to by the Company and
such Agent.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing at
any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, such Agent will suspend solicitation
of purchases from the Company until such time as the Company has advised such
Agent that such solicitation may be resumed.
Upon settlement, the Company agrees to pay each Agent a commission, in
the form of a discount, equal to the applicable percentage of the principal
amount of each Note sold by the Company as a result of a solicitation made by
such Agent as set forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the applicable Agent or
Agents and specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared in connection with each sale of Notes. Except as may
be otherwise specified in the applicable Pricing Supplement, the Notes will be
issued in denominations of U.S. $100,000 or any larger amount that is an
integral multiple of U.S. $1,000. Administrative procedures with respect to the
sale of Notes shall be agreed upon from time to time by the Company, the Agents
and the Trustee (the "Procedures"). The Agents and the Company agree to perform,
and the Company agrees to cause the Trustee to agree to perform, their
respective duties and obligations specifically provided to be performed by them
in the Procedures.
4. COVENANTS OF THE COMPANY.
The Company covenants with the Agents as follows:
(a) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. If at any time when
the Prospectus is required by the 1933 Act to be delivered in connection with
sales of the Notes any event shall occur or condition exist as a result of which
it is necessary, in the reasonable opinion of counsel for the Agents or counsel
for the Company, to further amend or supplement the Prospectus in order that the
Prospectus will not include an untrue statement of a material fact or omit to
state any material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in their capacity as agents of the Company and to cease sales of any Notes
the Agents may then own as principal, and the Company will promptly prepare and
file with the SEC such amendment or supplement, whether by filing documents
pursuant to the 1934 Act, the 1933 Act or otherwise, as may be necessary to
correct such untrue statement or omission or to make the Registration Statement
and Prospectus comply with such requirements.
(b) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. On or prior
to the date on which there shall be released to the general public interim
financial statement information related to the Company with respect to each of
the first three quarters of any fiscal year or preliminary financial statement
information with respect to any fiscal year, the Company shall furnish such
information to counsel for the Agents, confirmed in writing, and shall cause the
Prospectus to be amended or supplemented to include or incorporate by reference
capsule financial information with respect to the results of operations of the
Company for the period between the end of the preceding fiscal year and the end
of such quarter or for such fiscal year, as the case may be, and corresponding
information for the comparable period of the preceding fiscal year, as well as
such other information and explanations as shall be necessary for an
understanding of such amounts or as shall be required by the 1933 Act or the
1933 Act Regulations.
(c) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. On or prior
to the date on which there shall be released to the general public financial
information included in or derived from the audited financial statements of the
Company for the preceding fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended to include or incorporate by
reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other information
and explanations as shall be necessary for an understanding of such financial
statements or as shall be required by the 1933 Act or the 1933 Act Regulations.
(d) EARNINGS STATEMENTS. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 under the 1933 Act) covering each
twelve-month period beginning, in each case, not later than the first day of the
Company's fiscal quarter next following the "effective date" (as defined in Rule
158 under the 1933 Act) of the Registration Statement.
(e) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give counsel
to the Agents notice of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish counsel to the Agents with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time in advance
of such proposed filing, other than such amendments or supplements providing
solely for a change in the interest rates or redemption dates of the Notes or a
change in the principal amount of the Notes remaining to be sold or other
similar changes.
(f) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents or
their counsel immediately (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the SEC for filing of any
supplement to the Prospectus (other than pricing supplements, except as set
forth in the Administrative Procedures) or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference in the Prospectus, (iii) of
the receipt of any comments from the SEC with respect to the Registration
Statement or the Prospectus, (iv) of any request by the SEC for any amendment to
the Registration Statement or any amendment or supplement to the Prospectus or
for additional information, and (v) of the issuance by the SEC of any stop order
suspending the effectiveness of the Registration Statement or the initiation of
any proceedings for that purpose. The Company will make every reasonable effort
to prevent the issuance of any stop order and, if any stop order is issued, to
obtain the lifting thereof as soon as practicable.
(g) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents as many signed and conformed copies of the
registration statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably request
so long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(h) COPIES OF FINANCIAL REPORTS. The Company will furnish to the
Agents, at the earliest time the Company makes the same available to others,
copies of its annual reports and other financial reports furnished or made
available to the public generally.
(i) BLUE SKY QUALIFICATIONS. The Company will endeavor, in cooperation
with the Agents, to qualify the Notes for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
the Agents may reasonably designate, and will maintain such qualifications in
effect for as long as may be required for the distribution of the Notes;
PROVIDED, HOWEVER, that the Company shall not be obligated to file any general
consent to service of process or to qualify as a foreign corporation in any
jurisdiction in which it is not so qualified. The Company will file such
statements and reports, that the Company has knowledge of, as may be required by
the laws of each jurisdiction in which the Notes have been qualified as above
provided.
(j) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Section 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (a), (b) or (c) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agent pursuant to a
request from the Company and (ii) no Agent shall then hold any Notes purchased
as principal pursuant hereto (but in no event longer than six months), until the
time the Company shall determine that solicitation of purchases of the Notes
should be resumed or an Agent shall subsequently purchase Notes from the Company
as principal.
(l) STAND-OFF AGREEMENT. If requested by an Agent in connection with a
purchase by it of Notes as principal in accordance with Section 3(a) hereof,
such transaction shall be subject to the terms of such stand-off provision as
shall be agreed by the Company and the applicable Agent at the time of such
agreement to purchase Notes as principal.
5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agent of the Company, and the
obligations of any purchasers of the Notes sold through an Agent as agent, will
be subject to the accuracy of the representations and warranties on the part of
the Company herein and to the accuracy of the statements of the Company's
officers made in any certificate furnished pursuant to the provisions hereof, to
the performance and observance by the Company of all its covenants and
agreements herein contained and to the following additional conditions
precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance reasonably satisfactory to the Agents and their counsel:
(i) OPINION OF COMPANY COUNSEL. The opinion of any
in-house counsel of the Company, or other counsel reasonably
satisfactory to the Agents, substantially in the form of Exhibit B
hereto.
In rendering such opinion, such counsel may rely (x) as to the
matters of New York law and as to the matters relating to the 1939 Act
upon the opinion referred to in Section 5(a)(ii) without independent
verification, (y) as to the matters involving the application of laws
of any jurisdiction other than the States of California, Delaware and
New York or the United States, to the extent such counsel deems proper
and specified in such opinion, upon the opinion of other counsel of
good standing whom such counsel believes to be reliable and who are
reasonably satisfactory to counsel to the Agents, and (z) as to matters
of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
(ii) The opinion of Brown & Wood LLP, counsel to the
Agents, with respect to the validity of the Indentures, the Notes, the
Registration Statement, the Prospectus and other related matters as the
Agents shall reasonably request.
(iii) In giving their opinions required by subsection
(a)(i) and (a)(ii), respectively, of this Section 5(a), counsel for the
Company and Brown & Wood LLP shall each additionally state (with
appropriate qualifications) that nothing has come to their attention
that would lead them to believe that the Registration Statement, at the
time it became effective (or, if an amendment to the Registration
Statement or an Annual Report on Form 10-K has been filed by the
Company with the SEC subsequent to the effectiveness of the
Registration Statement, then at the time such amendment became
effective or at the time of the most recent such filing, as the case
may be) or at the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material
fact required to be stated therein or necessary in order to make the
statements therein not misleading or that the Prospectus, at the date
hereof (or, if such opinion is being delivered in connection with the
purchase of Notes from the Company by one or more Agents as principal
pursuant to Section 7(c) hereof, at the date of any agreement by such
Agent or Agents to purchase Notes as principal and at the Settlement
Date with respect thereto, as the case may be) (included or) includes
an untrue statement of a material fact or (omitted or) omits to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
(b) OFFICER'S CERTIFICATE. At the date hereof there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
financial condition, earnings or cash flow, of the Company and its subsidiaries
considered as one enterprise, or any development reasonably likely to have a
material adverse effect on the financial condition of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, and the Agents shall have received a certificate of
the President, any Vice President or the Treasurer or Assistant Treasurer of the
Company, dated as of the date hereof, to the effect (i) that there has been no
such material adverse change, (ii) that the other representations and warranties
of the Company contained in Section 2 are true and correct with the same force
and effect as though expressly made at and as of the date of such certificate,
(iii) that the Company has complied with all material agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the date
of such certificate, (iv) that there are no legal or governmental proceedings
pending or, to the best of such officer's knowledge, threatened, which are
required to be disclosed in the Registration Statement other than those
disclosed therein, and (v) that no stop order suspending the effectiveness of
the Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the SEC.
(c) COMFORT LETTER. At the date hereof or such other date as may be
acceptable to the Agents, the Agents shall have received from Deloitte & Touche
or other accountants reasonably satisfactory to the Agents and their counsel, a
letter, dated as of the date hereof or such Settlement Date, in form and
substance satisfactory to the Agents, to the effect that:
(i) They are independent public accountants with respect
to the Company and its subsidiaries within the meaning of the 1933 Act
and the 1933 Act Regulations, and no information concerning their
relationship with or interest in the Company is required by Item 10 of
the Registration Statement.
(ii) In their opinion, the financial statements and
supporting schedules examined by them and included or incorporated by
reference in the Registration Statement and Prospectus and audited by
them and covered by their opinions therein comply as to form in all
material respects with the applicable accounting requirements of the
1933 Act and the 1933 Act Regulations with respect to registration
statements on Form S-3 and the 1934 Act and the 1934 Act Regulations.
(iii) They have performed specified procedures, not
constituting an audit, including a reading of the latest available
interim financial statements of the Company and its indicated
Subsidiaries, a reading of the minute books of the Company and such
Subsidiaries since the end of the most recent fiscal year with respect
to which an audit report has been issued, inquiries of and discussions
with certain officials of the Company and such Subsidiaries responsible
for financial and accounting matters with respect to the unaudited
consolidated financial statements included or incorporated by reference
in the Registration Statement and Prospectus and the latest available
interim unaudited financial statements of the Company and its
subsidiaries, and such other inquiries and procedures as may be
specified in such letter, and on the basis of such inquiries and
procedures nothing came to their attention that caused them to believe
that: (A) the unaudited consolidated financial statements of the
Company and its subsidiaries included or incorporated by reference in
the Registration Statement and Prospectus do not comply as to form in
all material respects with the applicable accounting requirements of
the 1934 Act and the 1934 Act Regulations or were not fairly presented
in conformity with generally accepted accounting principles in the
United States applied on a basis substantially consistent with that of
the audited financial statements included or incorporated by reference
therein, or (B) at a specified date not more than five days prior to
the date of such letter, there was any change in the consolidated
shareholder's equity or any increase in the consolidated long-term debt
of the Company and its subsidiaries or any decrease in the consolidated
net assets of the Company and its subsidiaries, in each case as
compared with amounts shown on the most recent consolidated balance
sheet of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and Prospectus or, during the
period from the date of such balance sheet to a specified date not more
than five days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated operating income, net income or net income per
share of the Company and its subsidiaries, except in each such case as
set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such letter as
shall have been agreed to by the Agents and the Company.
(iv) In addition to the examination referred to in their
report included in the Registration Statement and the Prospectus and
the limited procedures referred to in clause (3) above, they have
carried out certain other specified procedures, not constituting an
audit, with respect to certain amounts, percentages and financial
information which are included in the Registration Statement and the
Prospectus and which are specified by the Agents, and have found such
amounts, percentages and financial information to be in agreement with
the relevant accounting, financial and other records of the Company and
its subsidiaries identified in such letter.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement Date,
counsel to the Agents shall have been furnished with such other documents and
opinions as such counsel may reasonably require (it being acknowledged that the
opinion of counsel being delivered pursuant to Section 5(a)(i) above is
reasonable in light of the circumstances at the date hereof) for the purpose of
enabling such counsel to pass upon the issuance and sale of Notes as herein
contemplated and related proceedings, or in order to evidence the accuracy and
completeness of any of the representations and warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the
Company in connection with the issuance and sale of Notes as herein contemplated
shall be satisfactory in form and substance to the Agents and to counsel to the
Agents.
The obligations of the Agents to purchase Notes as principal will be
subject to the following further conditions: (i) the rating assigned by any
nationally recognized securities rating agency to any debt securities of the
Company as of the date of the agreement to purchase Notes as principal shall not
have been lowered and no such rating agency shall have publicly announced that
it has under surveillance or review, with possible negative implications, its
ratings of any debt securities of the Company since that date and (ii) there
shall not have come to the attention of the Agent any facts that would cause
such Agent to believe that the Prospectus, at the time it was required to be
delivered to a purchaser of the Notes, contained an untrue statement of a
material fact or omitted to state a material fact necessary in order to make the
statements therein, in light of the circumstances existing at such time, not
misleading.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents by notice to the Company at any time and any
such termination shall be without liability of any party to any other party,
except that the covenant regarding provision of an earnings statement set forth
in Section 4(d) hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, the provisions concerning payment of expenses under
Section 10 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery of Section 11 hereof, the provisions relating to
governing law and forum set forth in Section 14 and the provisions relating to
parties set forth in Section 15 hereof shall remain in effect.
6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, such Agent shall promptly notify the Company and deliver
such Note to the Company and, if such Agent has theretofore paid the Company for
such Note, the Company will promptly return such funds to such Agent unless the
failure arose from the gross negligence or willful misconduct of such Agent or
from the default by such Agent in the performance of its obligations hereunder.
If such failure occurred for any reason other than the gross negligence or
willful misconduct of such Agent or from the default by such Agent in the
performance of its obligations hereunder, the Company will reimburse such Agent
on an equitable basis for its loss of the use of the funds for the period such
funds were credited to the Company's account.
7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in the most recent certificate (for each
type of certificate) theretofore delivered to the Agents pursuant hereto are
true and correct at the time of such acceptance or sale, as the case may be, and
an undertaking that such representations and warranties will be true and correct
at the time of delivery to such Agent or Agents or to the purchaser or its
agent, as the case may be, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that there is filed
with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form 10-K
incorporated by reference into the Prospectus, and otherwise only (i) as may be
required in connection with a sale pursuant to Section 3(a) or (ii) at such
times as may be reasonably requested by the Agents in the event of a material
change in circumstances in respect of the Company, the Company shall furnish or
cause to be furnished to the Agent(s) forthwith a certificate dated the date of
filing with the SEC of such document, the date requested by the Agents or the
date of such sale, as the case may be, in form reasonably satisfactory to the
Agent(s) to the effect that the statements contained in the certificate referred
to in Section 5(b) hereof which were last furnished to the Agents are true and
correct at the time of such filing, as though made at and as of such time
(except that such statements shall be deemed to relate to the Registration
Statement and the Prospectus as amended and supplemented to such time) or, in
lieu of such certificate, a certificate substantially similar to the certificate
referred to in Section 5(b) hereof, modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that there is
filed with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form
10-K incorporated by reference into the Prospectus, and otherwise only (i) as
may be required in connection with a sale pursuant to Section 3(a) or (ii) at
such times as may be reasonably requested by the Agents in the event of a
material change in circumstances in respect of the Company, the Company shall
furnish or cause to be furnished forthwith, and in any case promptly upon
request, to the Agent(s) and to counsel to the Agents the written opinion of
in-house counsel to the Company, or other counsel satisfactory to the Agent(s),
dated the date of filing with the SEC of such document, the date requested by
the Agent(s) or the date of such sale, as the case may be, in form and substance
reasonably satisfactory to the Agent(s), including such reductions or
limitations as shall be reasonably satisfactory to the Agent(s), but modified,
as necessary, to relate to the Registration Statement and the Prospectus as
amended and supplemented to the time of delivery of such opinion or, in lieu of
such opinion, counsel last furnishing such opinion to the Agents may furnish the
Agent(s) with a letter substantially to the effect that the Agent(s) may rely on
such last opinion to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that there is
filed with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form
10-K incorporated by reference into the Prospectus, and otherwise only (i) as
may be required in connection with a sale pursuant to Section 3(a) or (ii) at
such times as may be reasonably requested by the Agents in the event of a
material change in circumstances in respect of the Company, the Company shall
cause Deloitte & Touche, or other accountants reasonably satisfactory to the
Agents, forthwith to furnish such Agent a letter, dated the date of the filing
of such document with the SEC, the date of such request or the date of such
sale, as the case may be in form reasonably satisfactory to the Agent(s),
substantially similar to the portions of the letter referred to in clauses (1)
and (2) of Section 5(c) hereof but modified to relate to the Registration
Statement and Prospectus as amended and supplemented to the date of such letter,
and substantially similar to the portions of the letter referred to in clauses
(3) and (4) of said Section 5(c) with such changes as may be necessary to
reflect changes in the financial statements and other information derived from
the accounting records of the Company.
8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT(S). The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls such Agent
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by the Agents expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage
and expense whatsoever, as incurred, to the extent of the aggregate
amount paid in settlement of any litigation, or investigation or
proceeding by any governmental agency or body, commenced or threatened,
or of any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission (except as
made in reliance upon and in conformity with information furnished by
the Agents as aforesaid), if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Agent
and reasonably satisfactory to the Company), reasonably incurred in
investigating, preparing or defending against any litigation, or
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission (except as made in reliance upon and in conformity with
information furnished by the Agents as aforesaid), to the extent that
any such expense is not paid under (i) or (ii) above.
(b) INDEMNIFICATION OF COMPANY. Each Agent agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information furnished to the
Company by such Agent.
(c) GENERAL. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances.
9. CONTRIBUTION.
If the indemnification provided for in Section 8 hereof is unavailable
to the Company, on the one hand, or the Agents, on the other, as an indemnified
party in relation to each other under paragraph 8(a) or 8(b) thereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each such indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and the applicable Agents on the other. The relative fault of
the Company on the one hand and the Agents on the other shall be determined by
references to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by the Company or the Agents and
the party's relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to Section 8 were determined by pro rata
allocation or by any other method of allocation other than the allocation
specified in the immediately preceding paragraph. The amount paid or payable by
any indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Section, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes offered and sold to the
public through such Agent exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any such indemnified party at law or in equity.
10. PAYMENT OF EXPENSES.
The Company will pay the following expenses incident to the performance
of its obligations under this Agreement:
(a) The preparation and filing of the Registration Statement and
all amendments thereto;
(b) The preparation, printing, issuance and delivery of the Notes;
(c) The fees and disbursements of the Company's accountants and
of the Trustee;
(d) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(e) hereof, including filing fees and
the reasonable fees and disbursements of counsel for the Agents in connection
therewith and in connection with the preparation of any Blue Sky Survey;
(e) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
thereto, and of the Prospectus and any amendments or supplements thereto;
(f) The printing and delivery to the Agents of copies of the Indentures
and all supplements and amendments thereto;
(g) Any fees charged by rating agencies for the rating of the Notes;
(h) The fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.; and
(i) The reasonable fees and disbursements of counsel to the Agents.
11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE DELIVERY.
All representations, warranties and agreements contained in this
Agreement or in certificates of officers of the Company submitted pursuant
hereto shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Agents or any controlling person of an
Agent, or by or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
12. Termination.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by one or more Agents to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company, as to one or more
of the Agents, or an Agent, as to itself, upon the giving of 7 days' written
notice of such termination to the other parties hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
applicable Agent or Agents may terminate any agreement hereunder by such Agent
or Agents to purchase Notes as principal, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if there
has been, since the date of such agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the financial condition, earnings or cash flow of the Company and its
subsidiaries, considered as one enterprise, or any development reasonably likely
to have a material adverse effect on the financial condition of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
significant escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of such Agent or Agents, impracticable to market the
Notes or enforce contracts for the sale of the Notes, or (iii) if trading in any
securities of the Company has been suspended by the SEC or a national securities
exchange, or if trading generally on either the American Stock Exchange or the
New York Stock Exchange has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities, or if a banking moratorium has been declared by
the relevant authorities in the country or countries of origin of any foreign
currency or currencies in which such Notes are denominated or payable, or (iv)
if the rating assigned by any nationally recognized securities rating agency to
any debt securities of the Company as of the date of such agreement shall have
been lowered since that date or if any such rating agency shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its ratings of any debt securities of the Company since that date,
or (v) if there shall have come to the attention of such Agent or Agents any
facts that would cause them to believe that the Prospectus, at the time it was
required to be delivered to a purchaser of Notes, included an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances existing at the time
of such delivery, not misleading. As used in this Section 12(b), the term
"Prospectus" means the Prospectus in the form first provided to the applicable
Agent or Agents for use in confirming sales of the related Notes.
(c) GENERAL. In the event of any such termination, neither party will
have any liability to the other party hereto, except that (i) in the case of
termination pursuant to Section 12(a), the Agents shall be entitled to any
commission earned in accordance with the third paragraph of Section 3(b) hereof,
(ii) if at the time of termination (A) any Agent shall own any Notes purchased
by it as principal with the intention of reselling them or (B) an offer to
purchase any of the Notes has been accepted by the Company but the time of
delivery to the purchaser or his agent of the Note or Notes relating thereto has
not occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 4(d) hereof, the provisions of Section
10 hereof, the indemnity agreement set forth in Section 8 hereof, and the
provisions of Sections 11, 14 and 15 hereof shall remain in effect.
13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by mail or
by telex, telecopier or telegram, and any such notice shall be effective when
received at the address specified below.
If to the Company:
Boeing Capital Corporation
4060 Lakewood Boulevard, 6th Floor
Long Beach, California 90808-1700
Attention: Treasury Department
Telecopy No.: (562) 627-3284
If to the Agents:
If to Chase:
Chase Securities Inc.
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telecopy No. (212) 834-6081
If to Merrill Lynch:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
If to Morgan Stanley & Co. Incorporated:
1585 Broadway, 2nd Floor
New York, NY 10036
Attention: Manager, Continuously Offered Products
Telecopy No.: 212-761-0780
with a copy to it at:
1585 Broadway, 34th Floor
New York, NY 10036
Attention: Peter Cooper, Investment Banking Information
Center
Telecopy No.: 212-761-0260
If to PaineWebber:
PaineWebber Incorporated
1285 Avenue of the Americas, 11th Floor
New York, New York 10019
Attention: Ted Wachtell
Telecopy No. (212) 247-0371
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
14. GOVERNING LAW.
This Agreement and all the rights and obligations of the parties 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 in such State. Any suit,
action or proceeding brought by the Company against the Agents in connection
with or arising under this Agreement shall be brought solely in the state or
federal court of appropriate jurisdiction located in the Borough of Manhattan,
The City of New York or Los Angeles County, State of California.
15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company and their respective successors. Nothing expressed or
mentioned in this Agreement is intended, or shall be construed, to give any
person, firm or corporation, other than the parties hereto and their respective
successors and the controlling persons and officers and directors referred to in
Section 8 and their heirs and legal representatives, any legal or equitable
right, remedy or claim under or in respect of this Agreement or any provision
herein contained. This Agreement and all conditions and provisions hereof are
intended to be for the sole and exclusive benefit of the parties hereto and
respective successors and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other
person, firm or corporation. No purchaser of Notes shall be deemed to be a
successor by reason merely of such purchase.
16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
<PAGE>
If the foregoing is in accordance with the Agents' understanding of our
agreement, please sign and return to the Company a counterpart hereof, whereupon
this instrument along with all counterparts will become a binding agreement
between the Agents and the Company in accordance with its terms.
Very truly yours,
BOEING CAPITAL CORPORATION
By: ______________________________
Name:
Title:
Confirmed, Agreed and Accepted, as of the date first above written:
PAINEWEBBER INCORPORATED
By: _____________________
CHASE SECURITIES INC.
By: ______________________
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: _______________________
MORGAN STANLEY & CO. INCORPORATED
By: _______________________
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a maximum commission for
the sale of each Note equal to the principal amount of such Note multiplied by
the appropriate percentage set forth below:
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
From 9 months to 1 year......................................... .125%
From 1 year to less than 18 months.............................. .150
From 18 months to less than 2 years.............................. .200
From 2 years to less than 3 years................................ .250
From 3 years to less than 4 years................................ .325
From 4 years to less than 5 years................................. .450
From 5 years to less than 6 years................................. .500
Ffrom 6 years to less than 7 years................................. .550
From 7 years to less than 10 years................................. .600
From 10 years to less than 15 years................................ .625
From 15 years to less than 20 years................................ .700
From 20 years to less than 30 years................................ .750
More than 30 years................................................. *
______________________
* As agreed to by the Company and the applicable Agent at the time of sale.
<PAGE>
A - 1
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite currency)
Interest Rate:
Interest Payment Dates:
If Floating Rate Note:
Interest Rate Basis(es):
If LIBOR,
[ ] LIBOR Reuters Page:
[ ] LIBOR Telerate Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ___________
Price to Public: ___%, plus accrued interest, if any, from ___________
Issue Price:
Settlement Date and Time:
Additional/Other Terms:
<PAGE>
B - 3
EXHIBIT B
(1) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State of
Delaware.
(2) The Company has corporate power and corporate authority to
own or lease and operate its properties and conduct its business as described in
the Registration Statement as amended or supplemented.
(3) The authorized, issued and outstanding capital stock of
the Company is as set forth in the Company's Report on Form 10-K for the year
ended ______________ and incorporated by reference in the Registration Statement
and the Prospectus and the shares of issued and outstanding Common Stock set
forth therein have been duly authorized and validly issued and are fully paid
and nonassessable and are owned of record by Boeing Capital Services
Corporation.
(4) The Agreement has been duly authorized, executed and
delivered by the Company.
(5) The Indentures have been duly authorized, executed and
delivered by the Company and (assuming that (a) the Indenture Trustees have all
requisite power and authority to perform their obligations under the Indentures
and have made any necessary filings and received any necessary consents and (b)
the Indentures have been duly authorized, executed and delivered by the
Indenture Trustees) constitute valid and binding agreements of the Company,
enforceable in accordance with their terms, except that the enforceability
thereof may be subject to (a) bankruptcy, insolvency, reorganization,
moratorium, or other laws now or hereafter in effect relating to or affecting
creditors' rights generally, (b) general principles of equity (whether such
enforceability is considered in a proceeding in equity or at law), (c)
requirements that a claim with respect to any Notes denominated other than in
U.S. dollars (or a foreign currency or composite currency judgment in respect of
such claim) be converted into U.S. dollars at a rate of exchange prevailing on a
date determined pursuant to applicable law and (d) governmental authority to
limit, delay or prohibit the making of payments outside the United States.
(6) The Notes are in proper form as contemplated by the
Indentures and have been duly authorized by the Pricing Committee of the Company
pursuant to a delegation of authority from the Board of Directors of the Company
and, when appropriate action has been taken by the Company's Pricing Committee,
will have been duly and validly authorized by all necessary corporate action,
and, when the terms of the Notes have been established in accordance with the
applicable Indenture and in a manner which does not violate any applicable law
(including without limitation usury laws) or agreement and the Notes have been
executed and authenticated as specified in the Indentures and delivered against
payment of the full consideration therefor in accordance with the Agreement,
will (assuming that (a) the Indenture Trustees have all requisite power and
authority to perform their obligations under the Indentures and have made any
necessary filings and received any necessary consents, (b) the Indentures have
been duly authorized, executed and delivered by the Indenture Trustees and (c)
the Indenture Trustees' certificate of authentication has been manually executed
by an authorized officer of the Indenture Trustees), be valid and binding
obligations of the Company, enforceable in accordance with their terms, except
that such enforcement may be subject to (a) bankruptcy, insolvency,
reorganization, moratorium, or other laws now or hereafter in effect relating to
or affecting creditors' rights generally, (b) general principles of equity
(whether such enforceability is considered in a proceeding in equity or at law),
(c) requirements that a claim with respect to any Notes denominated other than
in U.S. dollars (or a foreign currency or composite currency judgment in respect
of such claim) be converted into U.S. dollars at a rate of exchange prevailing
on a date determined pursuant to applicable law and (d) governmental authority
to limit, delay or prohibit the making of payments outside the United States;
and the holders of the Notes will be entitled to the benefits of the Indentures.
(7) The Registration Statement has become effective under the
1933 Act and, to the best knowledge of the undersigned, no stop order suspending
the effectiveness of the Registration Statement has been issued under the 1933
Act or proceedings therefor initiated or threatened by the SEC.
(8) No consent, approval, authorization, decree or order of
any court or governmental authority or agency is required in connection with the
sale of the Notes, except such as may be required under the 1933 Act or the
rules or regulations promulgated thereunder, the 1939 Act, and state securities
or Blue Sky laws; and, to the best knowledge of the undersigned, the execution
and delivery of the Agreement and the Indentures and the consummation of the
transactions contemplated by the Agreement and the Indentures will not conflict
with or constitute a breach of, or default under, or cause the creation or
imposition of any lien, charge or encumbrance upon any property or assets of the
Company or any Material Subsidiary pursuant to any contract, indenture,
mortgage, deed of trust, loan agreement, or other instrument known to the
undersigned and to which the Company or any Material Subsidiary is a party or by
which it or any Material Subsidiary may be bound or to which any of the
significant property or assets of the Company or any Material Subsidiary is
subject, and which conflict, breach, default or lien imposition would have a
material adverse effect on the financial condition of the Company and its
consolidated subsidiaries considered as a whole, nor will such actions result in
any violation of the provisions of the Restated Certificate of Incorporation or
the Bylaws of the Company or any statute of the United States of America, of the
State of California, or of the General Corporation Law of the State of Delaware
or any order or administrative or court decree of any court or governmental
agency or body having jurisdiction over the Company known to the undersigned.
(9) To the best knowledge of the undersigned there are no
legal or governmental proceedings pending or threatened which are required to be
disclosed in the Registration Statement, other than those disclosed therein;
(10) To the best knowledge of the undersigned there are no
contracts, indentures, mortgages, loan agreements, notes, leases or other
instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and to the best knowledge of the undersigned no material default by the Company
exists in the due performance or observance of any material obligation,
agreement, covenant or other material condition contained in any contract,
indenture, loan agreement, note or lease so described, referred to, filed or
incorporated by reference;
(11) The Company is duly qualified to do business as a foreign
corporation in the State of California and, to the best knowledge of the
undersigned but without verification, is duly qualified to do business as a
foreign corporation and is in good standing in each U.S. state in which the
failure to so qualify and be in good standing would materially and adversely
affect its financial condition.
(12) The statements in the base Prospectus and in the
Prospectus Supplement under the captions "Description of Notes" and "Description
of the Securities", insofar as they purport to summarize certain provisions of
documents specifically referred to therein, are accurate summaries of all
material aspects of such provisions.
(13) To the best knowledge of the undersigned after reasonable
inquiry, the Registration Statement and the Prospectus (other than the financial
statements, schedules and other financial and statistical data included therein,
as to which the undersigned renders no opinion) comply in all material respects
with the requirements of the 1933 Act.
(14) To the best knowledge of the undersigned, MDFC Equipment
Leasing Corporation, Delaware corporation and wholly owned subsidiary of the
Company, is duly qualified as a foreign corporation to do business and is in
good standing in each U.S. state in which the failure to be so qualified and be
in good standing would cause a material and adverse impact on the financial
condition of the Company and its consolidated subsidiaries considered as one
enterprise. MDFC Equipment Leasing Corporation has been duly incorporated and is
validly existing as a corporation in good standing under the laws of the State
of Delaware and has corporate power and authority to own, lease and operate its
properties and conduct its business as described in the Registration Statement;
as far as an examination of the relevant register of shareholders and share
certificates reveals, all of the issued and outstanding capital stock of MDFC
Equipment Leasing Corporation has been validly issued and is fully paid and
non-assessable, and, except as disclosed in the Registration Statement or
Prospectus, all of such capital stock owned by the Company is, to the best
knowledge of the undersigned, owned free and clear of any mortgage, pledge or
lien.
(15) To the best knowledge of the undersigned after reasonable
inquiry, the Company's most recent Report on Form 10-Q and its most recent
Report on Form 10-K (other than the financial statements, schedules and other
financial and statistical data included therein, as to which the undersigned
renders no opinion) comply in all material respects with the requirements of the
1934 Act.
The undersigned has participated in certain conferences with officers
and other representatives of the Company during which the contents of the
Registration Statement and the Prospectus and related matters were discussed
and, although the undersigned is not passing upon, and does not assume any
responsibility for, the accuracy, completeness or fairness of the statements
contained in the Registration Statement and the Prospectus and has not made any
independent check or verification thereof, during the course of such
participation (relying as to materiality to a large extent upon the statements
of officers and other representatives of the Company), nothing came to the
attention of the undersigned that caused the undersigned to believe that, as of
the date the Registration Statement became effective or at the date hereof, the
Registration Statement (including the documents incorporated by reference
therein but excluding (a) the financial statements, notes and schedules thereto
included or incorporated by reference therein, (b) other financial and
statistical information included or incorporated by reference therein or (c) the
Forms T-1 filed as exhibits to the Registration Statement, as to all of which
the undersigned has not been requested to express and does not express any
opinion) contained an untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading or that, as of the date of this opinion or at the date
hereof, the Prospectus (including the documents incorporated by reference
therein but excluding (a) the financial statements, notes and schedules thereto
included or incorporated by reference therein, or (b) other financial or
statistical information included or incorporated by reference therein, as to all
of which the undersigned has not been requested and does not express any
opinion) contained an untrue statement of a material fact or omitted to state a
material fact necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading.
EXHIBIT 4(e)
[FACE OF NOTE]
UNLESS THIS NOTE 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 NOTE 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.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE 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.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. SNR/FXR-
BOEING CAPITAL CORPORATION
Series X SENIOR MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S)
[ ] March 15 and September 15
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATIONS: EXCHANGE RATE
[ ] United States dollars [ ] $100,000 and integral AGENT:
[ ] Other: multiples of $1,000
in excess thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
___________________
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE>
Boeing Capital Corporation, a Delaware corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to ______________,
___________________ or registered assigns, the principal sum of ____________ ,
on the Stated Maturity Date specified above (or any Redemption Date or
Repayment Date, each as defined on the reverse hereof)(each such Stated
Maturity Date, Redemption Date and Repayment Date and any other date on
which the principal or an installment of principal of this Note
shall become due and payable, whether by declaration of acceleration or
otherwise, 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, until the principal hereof is paid or
duly made available for payment. The Company will pay interest in arrears on
each Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; PROVIDED,
HOWEVER, that if the Original Issue Date occurs between a Record Date (as
defined below) and the next succeeding Interest Payment Date, interest payments
will commence on the second Interest Payment Date next succeeding the Original
Issue Date to the holder of this Note on the Record Date with respect to such
second Interest Payment Date. Interest on this Note will be computed on the
basis of a 360-day year of twelve 30-day months.
References herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Notwithstanding anything else contained herein, if this Note is a
Global Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Interest on this Note 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 with respect to this Note) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be (each,
an "Interest Period"). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Record Date"); PROVIDED, HOWEVER,
that interest payable on the Maturity Date will be payable to the person to whom
the principal hereof and premium, if any, hereon shall be payable. Any such
interest not so punctually paid or duly provided for ("Defaulted Interest") will
forthwith cease to be payable to the holder on any Record Date, and shall be
paid to the person in whose name this Note is registered at the close of
business on a special record date (the "Special Record Date") for the payment of
such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the holder of this Note by the Trustee not less
than 10 calendar 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 this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The Borough of Manhattan, The City of New York, currently located at
Four Albany Street, New York, New York 10015, or at such other paying agency in
the Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed election form) is presented and
surrendered at the aforementioned office of the Trustee in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means, unless otherwise specified
herein, any day that is not Saturday or Sunday and that in The City of New York
is not a day on which banking institutions are authorized or required by law,
regulation or executive order to close.
The Company is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note; PROVIDED, HOWEVER, that the holder of
this Note may elect to receive such amounts in the Specified Currency pursuant
to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[SEAL] BOEING CAPITAL CORPORATION
By________________________________
Title:
Attest:
By:____________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By____________________________
Dated:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
BOEING CAPITAL CORPORATION
Series X SENIOR MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated as of April 15, 1987, as amended by the First Supplemental Indenture dated
as of June 12, 1995 and as further amended, modified or supplemented from time
to time (the "Indenture"), between the Company and Bankers Trust Company, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto 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 Debt Securities, and of the terms upon which the Debt Securities are, and
are to be, authenticated and delivered. This Note is one of the series of Debt
Securities designated as "Series X Senior Medium-Term Notes Due Nine Months or
More from Date of Issue" (the "Notes"). All terms used but not defined in this
Note specified on the face hereof or in an Addendum hereto shall have the
meanings assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
denominations of U.S.$100,000 and integral multiples of $1,000 in excess thereof
or the minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be at least U.S.$100,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of unpaid principal amount to be redeemed. In the event
of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof (provided that any remaining principal
amount hereof shall be at least U.S.$100,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued thereon to the date fixed
for repayment (each, a "Repayment Date"). For this Note to be repaid, this Note
must be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its corporate trust office not more
than 60 nor less than 30 calendar days prior to the Repayment Date. Exercise of
such repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (ii)
any unpaid interest accrued thereon, from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the case
may be. The difference between the Issue Price and 100% of the principal amount
of this Note is referred to herein as the "Discount", and the Discount will be
ratably accrued over the term of this Note for purposes of determining the
amount payable upon redemption, repayment or acceleration of maturity of this
Note.
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial
interest rate applicable to this Note and an assumption that the maturity of
this Note will not be accelerated. If the period from the Original Issue Date to
the initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of the entire
indebtedness of the Notes upon compliance with certain conditions set forth
therein, which provisions apply to the Notes.
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 Debt Securities at any time by the
Company and the Trustee with the consent of the holders of not less than 66-K%
in principal amount of the Outstanding Debt Securities of each series affected
thereby. The Indenture also contains provisions permitting the holders of at
least 66-K% in principal amount of the Outstanding Debt Securities of any
series, on behalf of the holders of all such Debt Securities of such series, 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 in principal amount of the Outstanding Debt Securities of any series,
in certain instances, to waive, on behalf of all of the holders of Debt
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note 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 Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon are payable, 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 Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note 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.
<PAGE>
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, 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 _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|______________________________|______________________________________________
__________________________(Please print or typewrite name and address including
postal zip code of assignee)
__________________________________________________________ this Note and
all rights thereunder hereby irrevocably constituting and appointing
____________________________________________________________________ Attorney
to transfer this Note 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 Note
in every particular, without alteration or
or enlargement or any change whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at ______________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, not more than 60 nor less than 30 calendar days prior to the
Repayment Date, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (each of which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid:
Notice: The signature(s) on this
Date: _____________ Option to Elect Repayment must correspond
with the name(s) as written upon the face
of this Note in every particular, without
alteration or enlargement or any
change whatsoever.
EXHIBIT 4(f)
[FACE OF NOTE]
UNLESS THIS NOTE 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 NOTE 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.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE 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.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. SNR/FXR-
BOEING CAPITAL CORPORATION
Series X SUBORDINATED MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S)
[ ] March 15 and September 15
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATIONS: EXCHANGE RATE
[ ] United States dollars [ ] $100,000 and integral AGENT:
[ ] Other: multiples of $1,000
in excess thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
____________________
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE>
Boeing Capital Corporation, a Delaware corporation (the "Company",
which term includes any successor corporation under the Subordinated Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________________, or registered assigns, the principal sum of , on the
Stated Maturity Date specified above (or any Redemption Date or Repayment Date,
each as defined on the reverse hereof) (each such Stated Maturity Date,
Redemption Date and Repayment Date and any other date on which the principal or
an installment of principal of this Note shall become due and payable, whether
by declaration of acceleration or otherwise, 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,
until the principal hereof is paid or duly made available for payment. The
Company will pay interest in arrears on each Interest Payment Date, if any,
specified above (each, an "Interest Payment Date"), commencing with the first
Interest Payment Date next succeeding the Original Issue Date specified
above, and on the Maturity Date; PROVIDED, HOWEVER, that if the Original
Issue Date occurs between a Record Date (as defined below) and the next
succeeding Interest Payment Date, interest payments will commence on the
second Interest Payment Date next succeeding the Original Issue Date to the
holder of this Note on the Record Date with respect to such second Interest
Payment Date. Interest on this Note will be computed on the basis of a
360-day year of twelve 30-day months.
References herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Notwithstanding anything else contained herein, if this Note is a
Global Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Interest on this Note 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 with respect to this Note) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be (each,
an "Interest Period"). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Record Date"); PROVIDED, HOWEVER,
that interest payable on the Maturity Date will be payable to the person to whom
the principal hereof and premium, if any, hereon shall be payable. Any such
interest not so punctually paid or duly provided for ("Defaulted Interest") will
forthwith cease to be payable to the holder on any Record Date, and shall be
paid to the person in whose name this Note is registered at the close of
business on a special record date (the "Special Record Date") for the payment of
such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the holder of this Note by the Trustee not less
than 10 calendar 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 this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Subordinated Indenture.
Payments of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The Borough of Manhattan, The City of New York, currently located at
Four Albany Street, New York, New York 10015, or at such other paying agency in
the Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed election form) is presented and
surrendered at the aforementioned office of the Trustee in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "Business Day" means, unless otherwise specified in the
applicable Note, any day that is not Saturday or Sunday and that in The City of
New York is not a day on which banking institutions are authorized or required
by law, regulation or executive order to close.
The Company is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note; PROVIDED, HOWEVER, that the holder of
this Note may elect to receive such amounts in the Specified Currency pursuant
to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Subordinated Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Subordinated Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[SEAL] BOEING CAPITAL CORPORATION
By________________________________
Title:
Attest:
By:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Subordinated Indenture.
BANKERS TRUST COMPANY,
as Trustee
By____________________________
Dated:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
BOEING CAPITAL CORPORATION
Series X SUBORDINATED MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under a Subordinated
Indenture, dated as of June 15, 1988, as amended by the First Supplemental
Indenture, dated as of June 12, 1995 and as amended, modified or supplemented
from time to time (the "Subordinated Indenture"), between the Company and
Bankers Trust Company, as successor Trustee (the "Trustee", which term includes
any successor trustee under the Subordinated Indenture), to which Subordinated
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the holders of the Debt Securities,
and of the terms upon which the Debt Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Debt Securities
designated as "Series X Subordinated Medium-Term Notes Due Nine Months or More
from Date of Issue" (the "Notes"). All terms used but not defined in this Note
specified on the face hereof or in an Addendum hereto shall have the meanings
assigned to such terms in the Subordinated Indenture.
This Note is issuable only in registered form without coupons in
denominations of U.S.$100,000 and integral multiples of $1,000 in excess thereof
or the minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be at least U.S.$100,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of unpaid principal amount to be redeemed. In the event
of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof (provided that any remaining principal
amount hereof shall be at least U.S.$100,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued thereon to the date fixed
for repayment (each, a "Repayment Date"). For this Note to be repaid, this Note
must be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its corporate trust office not more
than 60 nor less than 30 calendar days prior to the Repayment Date. Exercise of
such repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (ii)
any unpaid interest accrued thereon, from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the case
may be. The difference between the Issue Price and 100% of the principal amount
of this Note is referred to herein as the "Discount", and the Discount will be
ratably accrued over the term of this Note for purposes of determining the
amount payable upon redemption, repayment or acceleration of maturity of this
Note.
Subordinated Indebtedness evidenced by this Note is subordinate and
junior in right of payment to the prior payment in full of all Senior
Indebtedness (defined below) of the Company and each Holder of this Note by
accepting the same agrees to and shall be bound by the provisions hereof, and
authorizes the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the same and appoints the Trustee as his
attorney-in-fact for such purpose.
For all purposes herein, the term "Senior Indebtedness" shall mean all
of the indebtedness of, or guaranteed by, the Company for borrowed money
(including the principal of, premium, if any, or interest on any such borrowed
money and any commitment fees for unborrowed amounts which, if borrowed, would
constitute Senior Indebtedness), whether currently outstanding or hereafter
incurred, unless, under the instrument evidencing the same or under which the
same is outstanding, it is expressly provided that such indebtedness is
subordinate to other indebtedness and obligations of the Company.
In the event that the Company shall default in the payment of any
Senior Indebtedness, when the same becomes due and payable, whether at maturity
or on a date fixed for prepayment or by declaration or otherwise, then, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, or securities or by
set-off or otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, or interest or any Additional Amounts on this
Note, or in respect of any sinking fund for, or redemption, retirement or
purchase or other acquisition of this Note.
Upon the happening of an event of default with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
(other than under the circumstances when the terms of the immediately preceding
paragraph are applicable), then, unless and until such event of default shall
have been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, or securities or by set-off or otherwise) shall be
made or agreed to be made on account of the principal of, or premium, if any, or
interest or any Additional Amounts on this Note or in respect of any sinking
fund for, or redemption, retirement or purchase or other acquisition of this
Note during any period (i) of 90 days after written notice of such default shall
have been given to the Company by any holder of Senior Indebtedness or (ii) in
which any judicial proceeding shall be pending in respect of such default and a
notice of acceleration of the maturity of such Senior Indebtedness shall have
been transmitted to the Company in respect of such default.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property; (ii) any
proceeding for the liquidation, dissolution or other winding-up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings; (iii) any assignment by the Company for the benefit of creditors;
or (iv) any other marshalling of the assets of the Company, all Senior
Indebtedness (including any interest accruing after commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any holder of
this Note on account of this Note. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided herein with respect to
this Note, to the payment of all Senior Indebtedness at the time Outstanding and
to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise but for the foregoing be
payable or deliverable in respect of this Note shall be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the priorities
then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full.
In the event that this Note shall be declared due and payable as a
result of the occurrence of any one or more defaults in respect thereof (under
circumstances when the terms of the immediately preceding paragraph are not
applicable), no payment shall be made in respect of this Note unless and until
all Senior Indebtedness shall have been paid in full or such declaration and its
consequences shall have been rescinded and all such defaults shall have been
remedied or waived.
If any payment or distribution to be paid to the holders of Senior
Indebtedness shall be received by any Holder of this Note in contravention of
the foregoing and before all the Senior Indebtedness shall have been paid in
full, such payment or distribution of any character or any security whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
provisions of the Subordinated Indenture with respect to the Subordinated
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan or
reorganization or readjustment), shall be received in trust for the benefit of,
and shall be paid over or delivered and transferred to, the holders of Senior
Indebtedness at the time Outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the holder of this Note to
endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same. Nothing contained herein shall impair, as between the Company and the
holder of this Note, the obligation of the Company to pay to the holder thereof
the principal thereof and interest thereon as and when the same shall become due
and payable in accordance with the terms of this Note, or prevent the holder of
this Note from exercising all rights, powers and remedies otherwise permitted by
applicable law or pursuant to the terms of this Note or the Subordinated
Indenture upon a default or Event of Default under the Subordinated Indenture,
all subject to the rights of the holders of Senior Indebtedness to receive cash,
securities or other property otherwise payable or deliverable to the holder of
this Note. Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash equal to the amount of such
Senior Indebtedness then Outstanding. Upon the payment in full of all Senior
Indebtedness, the holder of this Note shall be subrogated to all rights of any
holders of Senior Indebtedness to receive any further payments or distributions
applicable to the Senior Indebtedness until all amounts owing on this Note shall
have been paid in full, and such payments or distributions received by the
Holder of this Note by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and the Holder of this Note, on
the other hand, be deemed to be a payment by the Company on account of Senior
Indebtedness and not on account of this Note.
If an Event of Default shall occur and be continuing, the principal of
all the Notes may be declared due and payable in the manner and with all the
effect provided in the Subordinated Indenture.
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial
interest rate applicable to this Note and an assumption that the maturity of
this Note will not be accelerated. If the period from the Original Issue Date to
the initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Subordinated Indenture contains provisions for defeasance of the
entire indebtedness of the Notes upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Subordinated 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 Debt Securities
at any time by the Company and the Trustee with the consent of the holders of
not less than 66-K% in principal amount of the Outstanding Debt Securities of
each series affected thereby. The Subordinated Indenture also contains
provisions permitting the holders of at least 66-K% in principal amount of the
Outstanding Debt Securities of any series, on behalf of the holders of all such
Debt Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture. Furthermore, provisions in the Subordinated
Indenture permit the holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series, in certain instances, to waive,
on behalf of all of the holders of Debt Securities of such series, certain past
defaults under the Subordinated Indenture and their consequences. Any such
consent or waiver by the holder of this Note shall be conclusive and binding
upon such holder and upon all future holders of this Note and other Notes issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Subordinated Indenture and no provision of
this Note or of the Subordinated 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 Note at the times, places and rate or
formula, and in the coin or currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Company upon surrender of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal hereof and any premium or interest hereon are payable, 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 Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the holder
hereof surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Subordinated Indenture and this Note 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.
<PAGE>
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, 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 _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|______________________________|______________________________________________
___________________________________________(Please print or typewrite name and
address including postal zip code of assignee)
______________________________________________________________ this Note and all
rights thereunder hereby irrevocably constituting and appointing
____________________________________________________________________ Attorney
to transfer this Note 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 Note in every particular, witout
alteration or enlargement or any change whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at ___________________________________________________________________________.
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, not more than 60 nor less than 30 calendar days prior to the
Repayment Date, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (each of which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid:
Notice: The signature(s) on this
Date: ____________________ Option to Elect Repayment must correspond
with the name(s) as written upon the
face of this Note in every particular,
without alteration or enlargement or any
change whatsoever.
EXHIBIT 4(g)
[FACE OF NOTE]
UNLESS THIS NOTE 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 NOTE 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.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE 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.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. SNR/FLR-
BOEING CAPITAL CORPORATION
Series X SENIOR MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate Designated CMT Maturity Index:
DESIGNATED LIBOR CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INITIAL INTEREST RESET DATE:
SPREAD (PLUS OR MINIMUM INTEREST RATE: % INTEREST PAYMENT DATE(S):
MINUS):
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: % INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S): (if other than Bankers Trust Company)
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to .
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATIONS:
[ ] United States dollars [ ] $100,000 and integral multiples
of $1,000 in excess thereof
[ ] Other: [ ] Other:
EXCHANGE RATE AGENT:
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
____________________
(1)This paragraph applies to global Notes only.
(2)This paragraph applies to global Notes only.
<PAGE>
Boeing Capital Corporation, a Delaware corporation (the "Company",
which term includes any successor corporation under the Indenture hereinafter
referred to), for value received, hereby promises to pay to _______________,
or registered assigns, the principal sum of , on the Stated Maturity Date
specified above (or any Redemption Date or Repayment Date, each as defined on
the reverse hereof)(each such Stated Maturity Date, Redemption Date and
Repayment Date and any other date on which the principal or an installment
of principal of this Note shall become due and payable, whether by
declaration of acceleration or otherwise, being hereinafter referred to as
the "Maturity Date" with respect to the principal repayable on such date) and
to pay interest thereon, at a rate per annum equal to the Initial Interest
Rate specified above until the Initial Interest Reset Date specified above
and thereafter at a rate determined in accordance with the provisions
specified above and on the reverse hereof with respect to one or more Interest
Rate Bases specified above until the principal hereof is paid or duly made
available for payment. The Company will pay interest in arrears on each
Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; PROVIDED,
HOWEVER, that if the Original Issue Date occurs between a Record Date
(as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date next succeeding the
Original Issue Date to the holder of this Note on the Record Date with respect
to such second Interest Payment Date.
References herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Notwithstanding anything else contained herein, if this Note is a
Global Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Interest on this Note 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 with respect to this Note) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be (each,
an "Interest Period"). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined on the reverse hereof)
immediately preceding such Interest Payment Date (the "Record Date"); PROVIDED,
HOWEVER, that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof and premium, if any, hereon shall be
payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the holder on any
Record Date, and shall be paid to the person in whose name this Note is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee hereinafter referred to, notice whereof shall be given to the holder of
this Note by the Trustee not less than 10 calendar 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 this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided for in the Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The Borough of Manhattan, The City of New York, currently located at
Four Albany Street, New York, New York 10015, or at such other paying agency in
The Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed election form) is presented and
surrendered at the aforementioned office of the Trustee in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
The Company is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note; PROVIDED, HOWEVER, that the holder of
this Note may elect to receive such amounts in the Specified Currency pursuant
to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[SEAL] BOEING CAPITAL CORPORATION
By________________________________
Title:
Attest:
By:____________________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By____________________________
Dated:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
BOEING CAPITAL CORPORATION
Series X SENIOR MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture
dated as of April 15, 1987, as amended by the First Supplemental Indenture dated
as of June 12, 1995 and as further amended, modified or supplemented from time
to time (the "Indenture"), between the Company and Bankers Trust Company, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto 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 Debt Securities, and of the terms upon which the Debt Securities are, and
are to be, authenticated and delivered. This Note is one of the series of Debt
Securities designated as "Series X Senior Medium-Term Notes Due Nine Months or
More From Date of Issue" (the "Notes"). All terms used but not defined in this
Note specified on the face hereof or in an Addendum hereto shall have the
meanings assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
denominations of U.S.$100,000 and integral multiples of $1,000 in excess thereof
or the minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be at least U.S.$100,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of unpaid principal amount to be redeemed. In the event
of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof (provided that any remaining principal
amount hereof shall be at least U.S.$100,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued thereon to the date fixed
for repayment (each, a "Repayment Date"). For this Note to be repaid, this Note
must be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its corporate trust office not more
than 60 nor less than 30 calendar days prior to the Repayment Date. Exercise of
such repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If the Interest Category of this Note is specified on the face hereof
as an Original Issue Discount Note, the amount payable to the holder of this
Note in the event of redemption, repayment or acceleration of maturity of this
Note will be equal to the sum of (1) the Issue Price specified on the face
hereof (increased by any accruals of Discount, as defined below) and, in the
event of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage specified in the applicable Pricing Supplement (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (2)
any accrued and unpaid interest on this Note from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the case
may be. The difference between the Issue Price and 100% of the principal amount
of this Note is referred to herein as the "Discount", and the Discount will be
ratably accrued over the term of this Note for purposes of determining the
amount payable upon redemption, repayment or acceleration of maturity of this
Note.
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial
interest rate applicable to this Note and an assumption that the maturity of
this Note will not be accelerated. If the period from the Original Issue Date to
the initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note" or an
"Inverse Floating Rate Note", this Note shall be designated as
a "Regular Floating Rate Note" and, except as set forth below
or on the face hereof, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any, in each case as
specified on the face hereof. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; PROVIDED, HOWEVER, that the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note", then, except
as set forth below or on the face hereof, this Note shall bear
interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the Spread, if
any, and/or (b) multiplied by the Spread Multiplier, if any,
in each case as specified on the face hereof. Commencing on
the Initial Interest Reset Date, the rate at which interest on
this Note shall be payable shall be reset as of each Interest
Reset Date; PROVIDED, HOWEVER, that (y) the interest rate in
effect for the period, if any, from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest
Rate and (z) the interest rate in effect for the period
commencing on the Fixed Rate Commencement Date specified on
the face hereof to the Maturity Date shall be the Fixed
Interest Rate specified on the face hereof or, if no such
Fixed Interest Rate is specified, the interest rate in effect
hereon on the day immediately preceding the Fixed Rate
Commencement Date.
(iii) If the Interest Category of this Note is specified on
the face hereof as an "Inverse Floating Rate Note", then,
except as set forth below or on the face hereof, this Note
shall bear interest at the Fixed Interest Rate minus the rate
determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any; PROVIDED,
HOWEVER, that, unless otherwise specified on the face hereof,
the interest rate hereon shall not be less than zero.
Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as
of each Interest Reset Date; provided, however, that the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with respect to
each Interest Rate Basis will be determined in accordance with the applicable
provisions below. Except as set forth above or on the face hereof, the interest
rate in effect on each day shall be (i) if such day is an Interest Reset Date,
the interest rate determined as of the Interest Determination Date (as
hereinafter defined) 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, such Interest Reset Date shall be postponed to the next succeeding Business
Day, except that if LIBOR is an applicable Interest Rate Basis and such Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day.
As used herein, "Business Day" means, unless otherwise specified
herein, any day that is not Saturday or Sunday and that in The City of New York
is not a day on which banking institutions are authorized or required by law,
regulation or executive order to close and, with respect to Notes as to which
LIBOR is an applicable Interest Rate Basis, is also a London Business Day. As
used herein, "London Business day" means any day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
"Principal Financial Center" means the capital city of the country
issuing the Designated LIBOR Currency, except that with respect to United States
dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch guilders,
Italian lire and Swiss francs, the "Principal Financial Center" shall be The
City of New York, Sydney, Toronto, Frankfurt, Amsterdam, Milan and Zurich,
respectively.
The "Interest Determination Date" with respect to the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate will
be the second Business Day immediately preceding the applicable Interest Reset
Date; the "Interest Determination Date" with respect to the Eleventh District
Cost of Funds Rate shall be the last working day of the month immediately
preceding the applicable Interest Reset Date on which the Federal Home Loan Bank
of San Francisco (the "FHLB of San Francisco") publishes the Index (as defined
below); and the "Interest Determination Date" with respect to LIBOR shall be the
second London Business Day immediately preceding the applicable Interest Reset
Date. The "Interest Determination Date" with respect to the Treasury Rate shall
be the day in the week in which the applicable Interest Reset Date falls on
which day Treasury Bills (as defined below) are normally auctioned (Treasury
Bills are normally sold at an auction held 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 such auction may be held on the preceding
Friday); PROVIDED, HOWEVER, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the "Interest Determination Date"
shall be such preceding Friday; and PROVIDED, FURTHER, that if an auction shall
fall on any Interest Reset Date then the Interest Reset Date shall instead be
the first Business Day following such auction. If the interest rate of this Note
is determined with reference to two or more Interest Rate Bases specified on the
face hereof, the "Interest Determination Date" pertaining to this Note shall be
the most recent Business Day which is at least two Business Days prior to the
applicable Interest Reset Date on which each Interest Rate Basis is
determinable. Each Interest Rate Basis shall be determined as of such date, and
the applicable interest rate shall take effect on the related Interest Reset
Date.
CD RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDs (Secondary Market)", or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date (as defined below), the rate on such
CD Rate Interest Determination Date for negotiable United States dollar
certificates of deposit of the Index Maturity as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for United States Government Securities" or any successor publication
("Composite Quotations") under the heading "Certificates of Deposit". If such
rate is not yet published in either H.15(519) or Composite Quotations by 3:00
P.M., New York City time, on the related Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by the Calculation
Agent specified on the face hereof and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Rate Interest Determination Date, of three leading nonbank dealers in negotiable
United States dollar certificates of deposit in The City of New York selected by
the Calculation Agent for negotiable certificates of deposit of major United
States money center banks for negotiable United States dollar certificates of
deposit with a remaining maturity closest to the Index Maturity in an amount
that is representative for a single transaction in that market at that time;
PROVIDED, HOWEVER, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate determined as of such CD
Rate Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CMT RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities...Federal Reserve
Board Release H.15...Mondays Approximately 3:45 P.M.", under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week, or the month, as
applicable, ended immediately preceding the week in which the related CMT Rate
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in
H.15(519). If such information is not provided by 3:00 P.M., New York City time,
on the related Calculation Date, then the CMT Rate on the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market closing
offer side prices as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date reported, according to their written records,
by three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations, the
CMT Rate on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 P.M., New
York City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least U.S.$100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT
Rate Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain from five References Dealers quotations for the Treasury Note with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Markets Limited (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519)). If
no such page is specified on the face hereof, the Designated CMT Telerate Page
shall be page 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
COMMERCIAL PAPER RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published by the Federal Reserve Board in the relevant weekly
statistical release entitled "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Federal Reserve Board ("H.15.(519)")
under the caption "Commercial Paper-Nonfinancial" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
days or 90 days, respectively). If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on such
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity placed for a non-financial entity whose bond rating is "Aa",
or the equivalent from a nationally recognized statistical rating organization;
PROVIDED, HOWEVER, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate determined
as of such Commercial Paper Rate Interest Determination Date will be the
Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
---------------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
Eleventh District Cost of Funds Rate. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such Eleventh
District Cost of Funds Rate Interest Determination Date for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate". If such rate is not published in either H.15(519) or
Composite Quotations, then the Federal Funds Rate on such Federal Funds Interest
Determination Date shall be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent, prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; PROVIDED, HOWEVER, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate in effect on such Federal Funds Rate Interest Determination
Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case such
single rate will be used) for deposits in the Designated LIBOR Currency having
the Index Maturity, commencing on the applicable Interest Reset Date, that
appear (or, if only a single rate is required as aforesaid, appears) on the
Designated LIBOR Page (as defined below) as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date, or (b) "LIBOR Telerate" is specified on the
face hereof, or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on
the face hereof as the method for calculating LIBOR, the rate for deposits in
the Designated LIBOR Currency having the Index Maturity, commencing on such
Interest Reset Date, that appears on the Designated LIBOR Page as of 11:00 A.M.,
London time, on such LIBOR Interest Determination Date. If fewer than two such
offered rates appear, or if no such rate appears, as applicable, LIBOR on such
LIBOR Interest Determination Date shall be determined in accordance with the
provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Designated
LIBOR Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in
such Designated LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in
the applicable Principal Financial Center, on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Designated LIBOR Currency to leading European
banks, having the Index Maturity and in a principal amount that is
representative for a single transaction in such Designated LIBOR Currency in
such market at such time; PROVIDED, HOWEVER, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date shall be LIBOR in effect
on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated. If no such
currency or composite currency is specified on the face hereof, the Designated
LIBOR Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuters Monitor Money Rates Service (or any
successor service) for the purpose of displaying the London interbank rates of
major banks for the Designated LIBOR Currency, or (b) if "LIBOR Telerate" is
specified on the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified on the face hereof as the method for calculating LIBOR, the display on
the Dow Jones Markets Limited (or any successor service) for the purpose of
displaying the London interbank rates of major banks for the Designated LIBOR
Currency.
PRIME RATE. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan". If such rate is not published prior to 3:00 P.M., New
York City time, on the related Calculation Date, then the Prime Rate shall be
the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, the Prime Rate
shall be 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 such Prime Rate Interest Determination Date by four
major money center banks in The City of New York selected by the Calculation
Agent. If fewer than four such quotations are so provided, the Prime Rate shall
be the arithmetic mean of four prime 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 such Prime Rate Interest Determination Date as furnished in The City of New
York by the major money center banks, if any, that have provided such quotations
and by a reasonable number of substitute banks or trust companies as necessary
to obtain such four prime rate quotations, provided such substitute banks or
trust companies are organized and doing business under the laws of the United
States, or any State thereof, each having total equity capital of at least
U.S.$500 million and being subject to supervision or examination by Federal or
State authority, selected by the Calculation Agent to provide such rate or
rates; PROVIDED, HOWEVER, that if the banks or trust companies so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the Prime
Rate determined as of such Prime Rate Interest Determination Date will be the
Prime Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 Page on such service) for the purpose of displaying prime
rates or base lending rates of major United States banks).
TREASURY RATE. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills having
the Index Maturity are not reported as provided above by 3:00 P.M., New York
City time, on such Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity; PROVIDED, HOWEVER, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate
determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable, pertaining
to any Interest Determination Date shall 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 the Maturity Date,
as the case may be. At the request of the Holder hereof, the Calculation Agent
will provide to the Holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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 Debt Securities at any time by the
Company and the Trustee with the consent of the holders of not less than 66-K%
in principal amount of the Outstanding Debt Securities of each series affected
thereby. The Indenture also contains provisions permitting the holders of at
least 66-K% in principal amount of the Outstanding Debt Securities of any
series, on behalf of the holders of all such Debt Securities of such series, 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 in principal amount of the Outstanding Debt Securities of any series,
in certain instances, to waive, on behalf of all of the holders of Debt
Securities of such series, certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Indenture and no provision of this Note 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 Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon are payable, 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 Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Indenture and this Note 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.
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, 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 _____ TEN
ENT - as tenants by the entireties (Cust) (Minor) JT TEN - as joint tenants with
right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
---------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|---------------------------|---------------------------------------------------
____________________________________________(Please print or typewrite name
and address including postal zip code of assignee)
________________________________________________ this Note and all rights
thereunder hereby irrevocably constituting and appointing
____________________________________________________________________ Attorney
to transfer this Note 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 Note in every particular,
without alteration or enlargement or any
change whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at _______________________________________.
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, currently located at __________________________________________,
not more than 60 nor less than 30 calendar days prior to the Repayment Date,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (each of which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid:
Notice: The signature(s) on this Option to
Date:__________ Elect Repayment must correspond with the name(s)
as written upon the face of this Note in every
particular, without alteration or enlargement or
any change whatsoever.
EXHIBIT 4(h)
[FACE OF NOTE]
UNLESS THIS NOTE 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 NOTE 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.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE 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.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. SNR/FLR-
BOEING CAPITAL CORPORATION
Series X SUBORDINATED MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
[ ] LIBOR Telerate Designated CMT Maturity Index:
DESIGNATED LIBOR CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INITIAL INTEREST RESET DATE:
SPREAD (PLUS OR MINIMUM INTEREST RATE: % INTEREST PAYMENT DATE(S):
MINUS):
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: % INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S): (if other than Bankers Trust Company)
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to .
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATIONS:
[ ] United States dollars [ ] $100,000 and integral
multiples of $1,000 in excess
thereof
[ ] Other: [ ] Other:
EXCHANGE RATE AGENT:
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
____________________
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE>
Boeing Capital Corporation, a Delaware corporation (the "Company",
which term includes any successor corporation under the Subordinated Indenture
hereinafter referred to), for value received, hereby promises to pay to ____
____________________________________________, or registered assigns, the
principal sum of _______________, on the Stated Maturity Date specified
above (or any Redemption Date or Repayment Date, each as defined on the reverse
hereof) (each such Stated Maturity Date, Redemption Date and Repayment Date and
any other date on which the principal or an installment of principal of this
Note shall become due and payable, whether by declaration of acceleration or
otherwise, being hereinafter referred to as the "Maturity Date" with respect to
the principal repayable on such date) and to pay interest thereon, at a rate per
annum equal to the Initial Interest Rate specified above until the Initial
Interest Reset Date specified above and thereafter at a rate determined in
accordance with the provisions specified above and on the reverse hereof with
respect to one or more Interest Rate Bases specified above until the principal
hereof is paid or duly made available for payment. The Company will pay interest
in arrears on each Interest Payment Date, if any, specified above (each, an
"Interest Payment Date"), commencing with the first Interest Payment Date next
succeeding the Original Issue Date specified above, and on the Maturity Date;
PROVIDED, HOWEVER, that if the Original Issue Date occurs between a Record Date
(as defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date next succeeding the
Original Issue Date to the holder of this Note on the Record Date with respect
to such second Interest Payment Date.
References herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Notwithstanding anything else contained herein, if this Note is a
Global Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Interest on this Note 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 with respect to this Note) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be (each,
an "Interest Period"). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined on the reverse hereof)
immediately preceding such Interest Payment Date (the "Record Date"); PROVIDED,
HOWEVER, that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof and premium, if any, hereon shall be
payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the holder on any
Record Date, and shall be paid to the person in whose name this Note is
registered at the close of business on a special record date (the "Special
Record Date") for the payment of such Defaulted Interest to be fixed by the
Trustee hereinafter referred to, notice whereof shall be given to the holder of
this Note by the Trustee not less than 10 calendar 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 this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided for in the Subordinated Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The Borough of Manhattan, The City of New York, currently located at
Four Albany Street, New York, New York 10015, or at such other paying agency in
The Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed election form) is presented and
surrendered at the aforementioned office of the Trustee in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
The Company is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note; PROVIDED, HOWEVER, that the holder of
this Note may elect to receive such amounts in the Specified Currency pursuant
to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Subordinated Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Subordinated Indenture or be valid or obligatory for any purpose.
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[SEAL] BOEING CAPITAL CORPORATION
By________________________________
Title:
Attest:
By:_________________
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Subordinated Indenture.
BANKERS TRUST COMPANY,
as Trustee
By____________________________
Dated:
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
BOEING CAPITAL CORPORATION
Series X SUBORDINATED MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under a Subordinated
Indenture, dated as of June 15, 1988, as amended by the First Supplemental
Indenture, dated as of June 12, 1995 and as amended, modified or supplemented
from time to time (the "Subordinated Indenture"), between the Company and
Bankers Trust Company, as successor Trustee (the "Trustee", which term includes
any successor trustee under the Subordinated Indenture), to which Subordinated
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the holders of the Debt Securities,
and of the terms upon which the Debt Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Debt Securities
designated as "Series X Subordinated Medium-Term Notes Due Nine Months or More
From Date of Issue" (the "Notes"). All terms used but not defined in this Note
specified on the face hereof or in an Addendum hereto shall have the meanings
assigned to such terms in the Subordinated Indenture.
This Note is issuable only in registered form without coupons in
denominations of U.S.$100,000 and integral multiples of $1,000 in excess thereof
or the minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be at least U.S.$100,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of unpaid principal amount to be redeemed. In the event
of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof (provided that any remaining principal
amount hereof shall be at least U.S.$100,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued thereon to the date fixed
for repayment (each, a "Repayment Date"). For this Note to be repaid, this Note
must be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its corporate trust office not more
than 60 nor less than 30 calendar days prior to the Repayment Date. Exercise of
such repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If the Interest Category of this Note is specified on the face hereof
as an Original Issue Discount Note, the amount payable to the holder of this
Note in the event of redemption, repayment or acceleration of maturity of this
Note will be equal to the sum of (1) the Issue Price specified on the face
hereof (increased by any accruals of Discount, as defined below) and, in the
event of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage specified in the applicable Pricing Supplement (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (2)
any accrued and unpaid interest on this Note from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the case
may be. The difference between the Issue Price and 100% of the principal amount
of this Note is referred to herein as the "Discount", and the Discount will be
ratably accrued over the term of this Note for purposes of determining the
amount payable upon redemption, repayment or acceleration of maturity of this
Note.
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued using a constant yield method. The
constant yield will be calculated using a 30-day month, 360-day year convention,
a compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial
interest rate applicable to this Note and an assumption that the maturity of
this Note will not be accelerated. If the period from the Original Issue Date to
the initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note" or an
"Inverse Floating Rate Note", this Note shall be designated as
a "Regular Floating Rate Note" and, except as set forth below
or on the face hereof, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any, in each case as
specified on the face hereof. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; PROVIDED, HOWEVER, that the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note", then, except
as set forth below or on the face hereof, this Note shall bear
interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the Spread, if
any, and/or (b) multiplied by the Spread Multiplier, if any.
Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as
of each Interest Reset Date; PROVIDED, HOWEVER, that (y) the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate and (z) the interest rate in
effect for the period commencing on the Fixed Rate
Commencement Date specified on the face hereof to the Maturity
Date shall be the Fixed Interest Rate specified on the face
hereof or, if no such Fixed Interest Rate is specified, the
interest rate in effect hereon on the day immediately
preceding the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on
the face hereof as an "Inverse Floating Rate Note", then,
except as set forth below or on the face hereof, this Note
shall bear interest at the Fixed Interest Rate minus the rate
determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any; PROVIDED,
HOWEVER, that, unless otherwise specified on the face hereof,
the interest rate hereon shall not be less than zero.
Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as
of each Interest Reset Date; PROVIDED, HOWEVER, that the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with respect to
each Interest Rate Basis will be determined in accordance with the applicable
provisions below. Except as set forth above or on the face hereof, the interest
rate in effect on each day shall be (i) if such day is an Interest Reset Date,
the interest rate determined as of the Interest Determination Date (as
hereinafter defined) 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, such Interest Reset Date shall be postponed to the next succeeding Business
Day, except that if LIBOR is an applicable Interest Rate Basis and such Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day.
As used herein, "Business Day" means, unless otherwise specified
herein, any day that is not Saturday or Sunday and that in The City of New York
is not a day on which banking institutions are authorized or required by law,
regulation or executive order to close and, with respect to Notes as to which
LIBOR is an applicable Interest Rate Basis, is also a London Business Day. As
used herein, "London Business day" means any day on which dealings in deposits
in U.S. dollars are transacted in the London interbank market.
"Principal Financial Center" means the capital city of the
country issuing the Designated LIBOR Currency, except that with respect to
United States dollars, Australian dollars, Canadian dollars, Deutsche marks,
Dutch guilders, Italian lire and Swiss francs, the "Principal Financial Center"
shall be The City of New York, Sydney, Toronto, Frankfurt, Amsterdam, Milan and
Zurich, respectively.
The "Interest Determination Date" with respect to the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate and the Prime Rate will
be the second Business Day immediately preceding the applicable Interest Reset
Date; the "Interest Determination Date" with respect to the Eleventh District
Cost of Funds Rate shall be the last working day of the month immediately
preceding the applicable Interest Reset Date on which the Federal Home Loan Bank
of San Francisco (the "FHLB of San Francisco") publishes the Index (as defined
below); and the "Interest Determination Date" with respect to LIBOR shall be the
second London Business Day immediately preceding the applicable Interest Reset
Date. The "Interest Determination Date" with respect to the Treasury Rate shall
be the day in the week in which the applicable Interest Reset Date falls on
which day Treasury Bills (as defined below) are normally auctioned (Treasury
Bills are normally sold at an auction held 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 such auction may be held on the preceding
Friday); PROVIDED, HOWEVER, that if an auction is held on the Friday of the week
preceding the applicable Interest Reset Date, the "Interest Determination Date"
shall be such preceding Friday; and PROVIDED, FURTHER, that if an auction shall
fall on any Interest Reset Date then the Interest Reset Date shall instead be
the first Business Day following such auction. If the interest rate of this Note
is determined with reference to two or more Interest Rate Bases specified on the
face hereof, the "Interest Determination Date" pertaining to this Note shall be
the most recent Business Day which is at least two Business Days prior to the
applicable Interest Reset Date on which each Interest Rate Basis is
determinable. Each Interest Rate Basis shall be determined as of such date, and
the applicable interest rate shall take effect on the related Interest Reset
Date.
CD RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published by the Board
of Governors of the Federal Reserve System in "Statistical Release H.15(519),
Selected Interest Rates" or any successor publication ("H.15(519)") under the
heading "CDs (Secondary Market)", or, if not published by 3:00 P.M., New York
City time, on the related Calculation Date (as defined below), the rate on such
CD Rate Interest Determination Date for negotiable United States dollar
certificates of deposit of the Index Maturity as published by the Federal
Reserve Bank of New York in its daily statistical release "Composite 3:30 P.M.
Quotations for United States Government Securities" or any successor publication
("Composite Quotations") under the heading "Certificates of Deposit". If such
rate is not yet published in either H.15(519) or Composite Quotations by 3:00
P.M., New York City time, on the related Calculation Date, then the CD Rate on
such CD Rate Interest Determination Date will be calculated by the Calculation
Agent specified on the face hereof and will be the arithmetic mean of the
secondary market offered rates as of 10:00 A.M., New York City time, on such CD
Rate Interest Determination Date, of three leading nonbank dealers in negotiable
United States dollar certificates of deposit in The City of New York selected by
the Calculation Agent for negotiable certificates of deposit of major United
States money center banks for negotiable United States dollar certificates of
deposit with a remaining maturity closest to the Index Maturity in an amount
that is representative for a single transaction in that market at that time;
PROVIDED, HOWEVER, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the CD Rate determined as of such CD
Rate Interest Determination Date will be the CD Rate in effect on such CD Rate
Interest Determination Date.
CMT RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as defined
below) under the caption "...Treasury Constant Maturities...Federal Reserve
Board Release H.15...Mondays Approximately 3:45 P.M.", under the column for the
Designated CMT Maturity Index (as defined below) for (i) if the Designated CMT
Telerate Page is 7055, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the week, or the month, as
applicable, ended immediately preceding the week in which the related CMT Rate
Interest Determination Date occurs. If such rate is no longer displayed on the
relevant page or is not displayed by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in the relevant H.15(519). If such
rate is no longer published or is not published by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on such CMT Rate
Interest Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset Date as may then be published by either the Board
of Governors of the Federal Reserve System or the United States Department of
the Treasury that the Calculation Agent determines to be comparable to the rate
formerly displayed on the Designated CMT Telerate Page and published in the
H.15(519). If such information is not provided by 3:00 P.M., New York City time,
on the related Calculation Date, then the CMT Rate on the CMT Rate Interest
Determination Date will be calculated by the Calculation Agent and will be a
yield to maturity, based on the arithmetic mean of the secondary market closing
offer side prices as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date reported, according to their written records,
by three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued direct noncallable fixed rate obligations
of the United States ("Treasury Notes") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations, the
CMT Rate on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offer side prices as of approximately 3:30 P.M., New
York City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT Maturity
Index and a remaining term to maturity closest to the Designated CMT Maturity
Index and in an amount of at least U.S.$100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offer prices obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT
Rate Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the Calculation Agent will
obtain from five Reference Dealers quotations for the Treasury Note with the
shorter remaining term to maturity.
"Designated CMT Telerate Page" means the display on the Dow Jones
Markets Limited (or any successor service) on the page specified on the face
hereof (or any other page as may replace such page on that service for the
purpose of displaying Treasury Constant Maturities as reported in H.15(519)). If
no such page is specified on the face hereof, the Designated CMT Telerate Page
shall be page 7052 for the most recent week.
"Designated CMT Maturity Index" means the original period to maturity
of the United States Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is specified on the face hereof, the Designated
CMT Maturity Index shall be 2 years.
COMMERCIAL PAPER RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published by the Federal Reserve Board in the relevant weekly
statistical release entitled "Statistical Release H.15(519), Selected Interest
Rates," or any successor publication of the Federal Reserve Board ("H.15.(519)")
under the caption "Commercial Paper-Nonfinancial" (with an Index Maturity of one
month or three months being deemed to be equivalent to an Index Maturity of 30
days or 90 days, respectively). If such rate is not yet published in either
H.15(519) or Composite Quotations by 3:00 P.M., New York City time, on such
Calculation Date, then the Commercial Paper Rate on such Commercial Paper Rate
Interest Determination Date will be calculated by the Calculation Agent and
shall be the Money Market Yield of the arithmetic mean of the offered rates at
approximately 11:00 A.M., New York City time, on such Commercial Paper Rate
Interest Determination Date of three leading dealers of commercial paper in The
City of New York selected by the Calculation Agent for commercial paper having
the Index Maturity placed for a non-financial entity whose bond rating is "Aa",
or the equivalent from a nationally recognized statistical rating organization;
PROVIDED, HOWEVER, that if the dealers so selected by the Calculation Agent are
not quoting as mentioned in this sentence, the Commercial Paper Rate determined
as of such Commercial Paper Rate Interest Determination Date will be the
Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
Money Market Yield = D x 360 x 100
---------------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on Telerate Page 7058 as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such Eleventh
District Cost of Funds Rate Interest Determination Date for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not published by 3:00 P.M., New York City time, on the
Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date as published in Composite Quotations under the heading "Federal
Funds/Effective Rate". If such rate is not published in either H.15(519) or
Composite Quotations, then the Federal Funds Rate on such Federal Funds Interest
Determination Date shall be calculated by the Calculation Agent and will be the
arithmetic mean of the rates for the last transaction in overnight United States
dollar federal funds arranged by three leading brokers of federal funds
transactions in The City of New York selected by the Calculation Agent, prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; PROVIDED, HOWEVER, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate in effect on such Federal Funds Rate Interest Determination
Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) if (a) "LIBOR Reuters" is specified on the face hereof, the
arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case such
single rate will be used) for deposits in the Designated LIBOR Currency having
the Index Maturity, commencing on the applicable Interest Reset Date, that
appear (or, if only a single rate is required as aforesaid, appears) on the
Designated LIBOR Page (as defined below) as of 11:00 A.M., London time, on such
LIBOR Interest Determination Date, or (b) "LIBOR Telerate" is specified on the
face hereof, or if neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on
the face hereof as the method for calculating LIBOR, the rate for deposits in
the Designated LIBOR Currency having the Index Maturity, commencing on such
Interest Reset Date, that appears on the Designated LIBOR Page as of 11:00 A.M.,
London time, on such LIBOR Interest Determination Date. If fewer than two such
offered rates appear, or if no such rate appears, as applicable, LIBOR on such
LIBOR Interest Determination Date shall be determined in accordance with the
provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Designated
LIBOR Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in
such Designated LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in
the applicable Principal Financial Center, on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Designated LIBOR Currency to leading European
banks, having the Index Maturity and in a principal amount that is
representative for a single transaction in such Designated LIBOR Currency in
such market at such time; PROVIDED, HOWEVER, that if the banks so selected by
the Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date shall be LIBOR in effect
on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the currency or composite currency
specified on the face hereof as to which LIBOR shall be calculated. If no such
currency or composite currency is specified on the face hereof, the Designated
LIBOR Currency shall be United States dollars.
"Designated LIBOR Page" means (a) if "LIBOR Reuters" is specified on
the face hereof, the display on the Reuters Monitor Money Rates Service (or any
successor service) for the purpose of displaying the London interbank rates of
major banks for the Designated LIBOR Currency, or (b) if "LIBOR Telerate" is
specified on the face hereof or neither "LIBOR Reuters" nor "LIBOR Telerate" is
specified on the face hereof as the method for calculating LIBOR, the display on
the Dow Jones Markets Limited (or any successor service) for the purpose of
displaying the London interbank rates of major banks for the Designated LIBOR
Currency.
PRIME RATE. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
heading "Bank Prime Loan". If such rate is not published prior to 3:00 P.M., New
York City time, on the related Calculation Date, then the Prime Rate shall be
the arithmetic mean of the rates of interest publicly announced by each bank
that appears on the Reuters Screen USPRIME1 Page (as defined below) as such
bank's prime rate or base lending rate as in effect for such Prime Rate Interest
Determination Date. If fewer than four such rates appear on the Reuters Screen
USPRIME1 Page for such Prime Rate Interest Determination Date, the Prime Rate
shall be 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 such Prime Rate Interest Determination Date by four
major money center banks in The City of New York selected by the Calculation
Agent. If fewer than four such quotations are so provided, the Prime Rate shall
be the arithmetic mean of four prime 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 such Prime Rate Interest Determination Date as furnished in The City of New
York by the major money center banks, if any, that have provided such quotations
and by a reasonable number of substitute banks or trust companies as necessary
to obtain such four prime rate quotations, provided such substitute banks or
trust companies are organized and doing business under the laws of the United
States, or any State thereof, each having total equity capital of at least
U.S.$500 million and being subject to supervision or examination by Federal or
State authority, selected by the Calculation Agent to provide such rate or
rates; PROVIDED, HOWEVER, that if the banks or trust companies so selected by
the Calculation Agent are not quoting as mentioned in this sentence, the Prime
Rate determined as of such Prime Rate Interest Determination Date will be the
Prime Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen USPRIME1 Page" means the display designated as page
"USPRIME1" on the Reuters Monitor Money Rates Service (or such other page as may
replace the USPRIME1 Page on such service) for the purpose of displaying prime
rates or base lending rates of major United States banks).
TREASURY RATE. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity, as such rate is published
in H.15(519) under the heading "Treasury bills-auction average (investment)" or,
if not published by 3:00 P.M., New York City time, on the related Calculation
Date, the auction average rate of such Treasury Bills (expressed as a bond
equivalent on the basis of a year of 365 or 366 days, as applicable, and applied
on a daily basis) as otherwise announced by the United States Department of the
Treasury. In the event that the results of the Auction of Treasury Bills having
the Index Maturity are not reported as provided above by 3:00 P.M., New York
City time, on such Calculation Date, or if no such Auction is held, then the
Treasury Rate shall be calculated by the Calculation Agent and shall be a yield
to maturity (expressed as a bond equivalent on the basis of a year of 365 or 366
days, as applicable, and applied on a daily basis) of the arithmetic mean of the
secondary market bid rates, as of approximately 3:30 P.M., New York City time,
on such Treasury Rate Interest Determination Date, of three leading primary
United States government securities dealers selected by the Calculation Agent,
for the issue of Treasury Bills with a remaining maturity closest to the Index
Maturity; PROVIDED, HOWEVER, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Treasury Rate
determined as of such Treasury Rate Interest Determination Date will be the
Treasury Rate in effect on such Treasury Rate Interest Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note will in no event be higher than the maximum rate
permitted by New York law, as the same may be modified by United States law of
general application.
The Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable, pertaining
to any Interest Determination Date shall 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 the Maturity Date,
as the case may be. At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
Subordinated Indebtedness evidenced by this Note is subordinate and
junior in right of payment to the prior payment in full of all Senior
Indebtedness (defined below) of the Company and each holder of this Note by
accepting the same agrees to and shall be bound by the provisions hereof, and
authorizes the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the same and appoints the Trustee as his
attorney-in-fact for such purpose.
For all purposes herein, the term "Senior Indebtedness" shall mean all
of the indebtedness of, or guaranteed by, the Company for borrowed money
(including the principal of, premium, if any, or interest on any such borrowed
money and any commitment fees for unborrowed amounts which, if borrowed, would
constitute Senior Indebtedness), whether currently outstanding or hereafter
incurred, unless, under the instrument evidencing the same or under which the
same is outstanding, it is expressly provided that such indebtedness is
subordinate to other indebtedness and obligations of the Company.
In the event that the Company shall default in the payment of any
Senior Indebtedness, when the same becomes due and payable, whether at maturity
or on a date fixed for prepayment or by declaration or otherwise, then, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, or securities or by
set-off or otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, or interest or any Additional Amounts on this
Note, or in respect of any sinking fund for, or redemption, retirement or
purchase or other acquisition of this Note.
Upon the happening of an event of default with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
(other than under the circumstances when the terms of the immediately preceding
paragraph are applicable), then, unless and until such event of default shall
have been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, or securities or by set-off or otherwise) shall be
made or agreed to be made on account of the principal of, or premium, if any, or
interest or any Additional Amounts on this Note or in respect of any sinking
fund for, or redemption, retirement or purchase or other acquisition of this
Note during any period (i) of 90 days after written notice of such default shall
have been given to the Company by any holder of Senior Indebtedness or (ii) in
which any judicial proceeding shall be pending in respect of such default and a
notice of acceleration of the maturity of such Senior Indebtedness shall have
been transmitted to the Company in respect of such default.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property; (ii) any
proceeding for the liquidation, dissolution or other winding-up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings; (iii) any assignment by the Company for the benefit of creditors;
or (iv) any other marshalling of the assets of the Company, all Senior
Indebtedness (including any interest accruing after commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any Holder of
this Note on account of this Note. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided herein with respect to
this Note, to the payment of all Senior Indebtedness at the time Outstanding and
to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise but for the foregoing be
payable or deliverable in respect of this Note shall be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the priorities
then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full.
In the event that this Note shall be declared due and payable as a
result of the occurrence of any one or more defaults in respect thereof (under
circumstances when the terms of the immediately preceding paragraph are not
applicable), no payment shall be made in respect of this Note unless and until
all Senior Indebtedness shall have been paid in full or such declaration and its
consequences shall have been rescinded and all such defaults shall have been
remedied or waived.
If any payment or distribution to be paid to the holders of Senior
Indebtedness shall be received by any holder of this Note in contravention of
the foregoing and before all the Senior Indebtedness shall have been paid in
full, such payment or distribution of any character or any security whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
provisions of the Subordinated Indenture with respect to the Subordinated
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan or
reorganization or readjustment), shall be received in trust for the benefit of,
and shall be paid over or delivered and transferred to, the holders of Senior
Indebtedness at the time Outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the holder of this Note to
endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same. Nothing contained herein shall impair, as between the Company and the
holder of this Note, the obligation of the Company to pay to the holder thereof
the principal thereof and interest thereon as and when the same shall become due
and payable in accordance with the terms of this Note, or prevent the Holder of
this Note from exercising all rights, powers and remedies otherwise permitted by
applicable law or pursuant to the terms of this Note or the Subordinated
Indenture upon a default or Event of Default under the Subordinated Indenture,
all subject to the rights of the holders of Senior Indebtedness to receive cash,
securities or other property otherwise payable or deliverable to the Holder of
this Note. Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash equal to the amount of such
Senior Indebtedness then Outstanding. Upon the payment in full of all Senior
Indebtedness, the holder of this Note shall be subrogated to all rights of any
holders of Senior Indebtedness to receive any further payments or distributions
applicable to the Senior Indebtedness until all amounts owing on this Note shall
have been paid in full, and such payments or distributions received by the
holder of this Note by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and the Holder of this Note, on
the other hand, be deemed to be a payment by the Company on account of Senior
Indebtedness and not on account of this Note.
If an Event of Default shall occur and be continuing, the principal of
all the Notes may be declared due and payable in the manner and with all the
effect provided in the Subordinated Indenture.
If an Event of Default, as defined in the Subordinated Indenture, shall
occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Subordinated
Indenture.
The Subordinated Indenture contains provisions for defeasance of the
entire indebtedness of the Notes upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Subordinated 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 Debt Securities
at any time by the Company and the Trustee with the consent of the holders of
not less than 66-K% in principal amount of the Outstanding Debt Securities of
each series affected thereby. The Subordinated Indenture also contains
provisions permitting the holders of at least 66-K% in principal amount of the
Outstanding Debt Securities of any series, on behalf of the holders of all such
Debt Securities of such series, to waive compliance by the Company with certain
provisions of the Subordinated Indenture. Furthermore, provisions in the
Subordinated Indenture permit the holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series, in certain
instances, to waive, on behalf of all of the holders of Debt Securities of such
series, certain past defaults under the Subordinated Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
No reference herein to the Subordinated Indenture and no provision of
this Note or of the Subordinated 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 Note at the times, places and rate or
formula, and in the coin or currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Company upon surrender of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal hereof and any premium or interest hereon are payable, 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 Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the holder
hereof surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
The Subordinated Indenture and this Note 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.
<PAGE>
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, 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 _____ TEN
ENT - as tenants by the entireties (Cust) (Minor) JT TEN - as joint tenants with
right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
----------------------------------
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|______________________________|_______________________________________________
__________________________________(Please print or typewrite name and address
including postal zip code of assignee)
__________________________________________________________ this Note and
all rights thereunder hereby irrevocably constituting and appointing
____________________________________________________________________ Attorney
to transfer this Note 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 Note in every
particular, without alteration or enlargement or
any change whatsoever.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, currently located at __________________________________________,
not more than 60 nor less than 30 calendar days prior to the Repayment Date,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (each of which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid:
Notice: The signature(s) on
Date: this Option to Elect Repayment must
correspond with the name(s) as written upon
the face of this Note in every particular,
without alteration or enlargement or any
change whatsoever.
