SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 3, 1994
NYNEX CORPORATION
A Delaware Commission File I.R.S. Employer Identification
Corporation Number 1-8608 No. 13-3180909
1113 Westchester Avenue, White Plains, New York 10604
Telephone number (914) 644-6400
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Form 8-K NYNEX Corporation
March 3, 1994
ITEM 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(c) Exhibits:
The exhibits listed in the accompanying Index to Exhibits relate to the
Registration Statements (Nos. 33-51147 and 33-51147-01, which also constitute
Post-Effective Amendment No. 1 to Nos. 33-34401 and 33-34401-01, respectively)
on Form S-3 of NYNEX Capital Funding Company, Issuer, and NYNEX Corporation,
Guarantor, as coregistrants and are filed herewith for incorporation by
reference in such Registration Statements.
<PAGE>
Form 8-K NYNEX Corporation
March 3, 1994
Index to Exhibits
Exhibit Number
Per Item 601
of Regulation S-K Description of Document
1-b Form of Selling Agency Agreement, dated March 3, 1994, among NYNEX
Capital Funding Company, NYNEX Corporation, Lehman Brothers, Lehman Brothers
Inc. (including its affiliate Lehman Special Securities Inc.), J.P. Morgan
Securities Inc., Morgan Stanley & Co. Incorporated and Salomon Brothers Inc.
4-a Form of Medium Term Notes, Series B
4-b Form of Certificate dated March 4, 1994, from an Authorized Officer
of NYNEX Capital Funding Company (Issuer) pursuant to Sections 201 and 301 of
the Indenture dated as of April 1, 1994, as amended by a first Supplemental
Indenture dated as of March 3, 1994
<PAGE>
Form 8-K NYNEX Corporation
March 3, 1994
SIGNATURES
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.
NYNEX Corporation
/s/ Maria Lauritano
By_____________________
Maria Lauritano
Assistant Comptroller
March 4, 1994
NYNEX CAPITAL FUNDING COMPANY
$1,500,000,000 Medium-Term Notes, Series B
Due Nine Months or More
From Date of Issue
Selling Agency Agreement
March 3, 1994
New York, New York
Lehman Brothers
Lehman Brothers Inc. (including Lehman
Special Securities Inc.)
3 World Financial Center, 12th Floor
New York, NY 10285-1200
J.P. Morgan Securities Inc.
60 Wall Street
Third Floor
New York, NY 10260-0060
Morgan Stanley & Co. Incorporated
1221 Avenue of the Americas
New York, NY 10020
Salomon Brothers Inc
Seven World Trade Center
New York, NY 10048
Dear Sirs:
NYNEX Capital Funding Company, a Delaware corporation
(the "Company"), and NYNEX Corporation, a Delaware corporation
(the "Guarantor"), confirm their agreement with each of you with
respect to the issue and sale by the Company of its Medium-Term
Notes, Series B, Due Nine Months or More From Date of Issue (the
"Notes") in an aggregate amount sufficient to result in gross
proceeds to the Company of up to U.S. $1,500,000,000 or the
equivalent thereof in other currencies or composite currencies,
subject to reduction as a result of the concurrent sale of other
debt securities of the Company. The Notes will be issued under
an Indenture dated as of April 1, 1990 from the Company and the
Guarantor to The Bank of New York, as trustee (the "Trustee"), as
amended by a First Supplemental Indenture dated as of March 3,
1994 (as so amended, the "Indenture"). The Notes will be issued
in denominations of U.S. $1,000 or any integral multiple of U.S.
$1,000 or, in the case of Notes denominated in other currencies
or composite currencies, including the European Currency Unit, in
the denominations set forth in a supplement to the Prospectus
referred to below, will be issued only in fully registered form
and will have the annual interest rates, maturities and, if
appropriate, other terms set forth in a supplement to the
Prospectus referred to below. The Notes will be issued, and the
terms thereof established, in accordance with the Indenture and,
in the case of Notes sold pursuant to Section 2(a), the
Medium-Term Notes, Series B, Administrative Procedures attached
hereto as Exhibit A (the "Procedures"). The Notes will be
unconditionally guaranteed (the "Guarantees") as to payment of
principal, premium, if any, and interest by the Guarantor. The
Procedures may only be amended by written agreement of the
Company, the Guarantor and you after notice to, and with the
approval of, the Trustee. For the purposes of this Agreement,
the term "Agent" shall refer to any of you (including, in the
case of Lehman Brothers Inc., its affiliate Lehman Special
Securities Inc.) acting solely in the capacity as agent for the
Company pursuant to Section 2(a) and not as principal
(collectively, the "Agents"), the term the "Purchaser" shall
refer to one of you acting solely as principal pursuant to
Section 2(b) and not as agent, and the term "you" shall refer to
you collectively whether at any time any of you is acting in both
such capacities or in either such capacity.
1. Representations and Warranties. The Company and
the Guarantor each represents and warrants to, and agrees with,
you as set forth below in this Section 1. Certain terms used in
this Agreement are defined in paragraph (d) of this Section 1.
(a) The Company and the Guarantor meet the
requirements for use of Form S-3 under the Securities Act of
1933 (the "Act") and have filed with the Securities and
Exchange Commission (the "Commission") registration
statements on such Form (File Numbers: 33-34401, 33-34401-
01, 33-51147 and 33-51147-01), including a basic prospectus,
which have become effective, for the registration under the
Act of debt securities (the "Securities"), including the
Notes, in an aggregate amount sufficient to result in gross
proceeds to the Company of up to U.S. $1,500,000,000 or the
equivalent thereof in other currencies or composite
currencies, subject to reduction as a result of the
concurrent sale of other debt securities of the Company, and
related Guarantees. Such registration statements, as
amended at the date of this Agreement, meet the requirements
set forth in Rule 415(a)(1)(ix) or (x) under the Act and
comply in all other material respects with said Rule. The
Company and the Guarantor have included in such registration
statements, or have filed or will file with the Commission
pursuant to the applicable paragraph of Rule 424(b) under
the Act, a supplement to the form of prospectus included in
such registration statements relating to the Notes and the
plan of distribution thereof (the "Prospectus Supplement").
In connection with the sale of Notes, the Company and the
Guarantor propose to file with the Commission pursuant to
the applicable paragraph of Rule 424(b) under the Act
further supplements to the Prospectus Supplement specifying
the interest rates, maturity dates and, if appropriate,
other terms of the Notes sold pursuant hereto or the
offering thereof.
(b) As of the Execution Time, on the Effective Date,
when any supplement to the Prospectus is filed with the
Commission, as of the date of any Terms Agreement (as
defined by Section 2(b)) and at the date of delivery by the
Company of any Notes sold hereunder (a "Closing Date"), (i)
the Registration Statement, as amended as of any such time,
and the Prospectus, as supplemented as of any such time, and
the Indenture will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act
of 1939 (the "Trust Indenture Act") and the Securities
Exchange Act of 1934 (the "Exchange Act") and the respective
rules thereunder; (ii) the Registration Statement, as
amended as of any such time, did not and will not contain
any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in
order to make the statements therein not misleading; and
(iii) the Prospectus, as supplemented as of any such time,
will not contain any 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 neither the Company nor the Guarantor makes any
representation or warranty as to (i) that part of the
Registration Statement which shall constitute the Statement
of Eligibility and Qualification (Form T-1) under the Trust
Indenture Act of the Trustee or (ii) the information
contained in or omitted from the Registration Statement or
the Prospectus (or any supplement thereto) in reliance upon
and in conformity with information furnished in writing to
the Company or the Guarantor by any of you specifically for
use in connection with the preparation of the Registration
Statement or the Prospectus (or any supplement thereto).
(c) As of the time any Notes are issued and sold
hereunder, the Indenture will constitute the legally binding
obligation of each of the Company and the Guarantor and such
Notes and the related Guarantees will have been validly
authorized and, when such Notes are paid for by the
purchasers thereof, such Notes and such Guarantees will be
validly issued and outstanding, and will constitute legally
binding obligations of the Company and the Guarantor,
respectively, entitled to the benefits of the Indenture.
(d) The terms which follow, when used in this
Agreement, shall have the meanings indicated. The term "the
Effective Date" shall mean the date that each registration
statement referred to in paragraph (a) above or, if any
post-effective amendment thereto shall have been filed, the
date that the last such post-effective amendment became or
becomes effective. "Execution Time" shall mean the date and
time that this Agreement is executed and delivered by the
parties hereto. "Basic Prospectus" shall mean the form of
basic prospectus relating to the Securities contained in the
Registration Statement at the Effective Date. "Prospectus"
shall mean the Basic Prospectus as supplemented by the
Prospectus Supplement. "Registration Statement" shall mean,
collectively, the registration statements (File Nos. 33-
34401, 33-34401-01, 33-51147 and 33-51147-01) referred to in
paragraph (a) above, including incorporated documents,
exhibits and financial statements, as amended at the
Execution Time. "Rule 415" and "Rule 424" refer to such
rules under the Act. Any reference herein to the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the Effective Date of the
Registration Statement or the issue date of the Basic
Prospectus, the Prospectus Supplement or the Prospectus, as
the case may be; and any reference herein to the terms
"amend", "amendment" or "supplement" with respect to the
Registration Statement, the Basic Prospectus, the Prospectus
Supplement or the Prospectus shall be deemed to refer to and
include the filing of any document under the Exchange Act
after the Effective Date of the Registration Statement or
the issue date of the Basic Prospectus, the Prospectus
Supplement or the Prospectus, as the case may be, deemed to
be incorporated therein by reference.
2. Appointment of Agents; Solicitation by the Agents
of Offers to Purchase; Sales of Notes to a Purchaser.
(a) Subject to the terms and conditions set forth
herein, the Company hereby authorizes each of the Agents to act
as its agent to solicit offers for the purchase of all or part of
the Notes from the Company.
On the basis of the representations and warranties, and
subject to the terms and conditions set forth herein, each of the
Agents agrees, as agent of the Company, to use its reasonable
best efforts to solicit offers to purchase the Notes from the
Company upon the terms and conditions set forth in the Prospectus
(and any supplement thereto) and in the Procedures.
The Company reserves the right, in its sole discretion,
to instruct the Agents to suspend at any time, for any period of
time or permanently, the solicitation of offers to purchase the
Notes. Upon receipt of at least twelve hours prior notice from
the Company pursuant to this paragraph (a), the Agents will
suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised them that such
solicitations may be resumed.
The Company agrees to pay each Agent a commission, on
the Closing Date with respect to each sale of Notes by the
Company as a result of a solicitation made by such Agent, in an
amount equal to that percentage specified in Schedule I hereto of
the aggregate principal amount of the Notes sold by the Company.
Such commission shall be payable as specified in the Procedures.
Subject to the provisions of this Section and to the
Procedures, offers for the purchase of Notes may be solicited by
an Agent as agent for the Company at such time and in such
amounts as such Agent deems advisable. The Company may from time
to time offer Notes for sale otherwise than through an Agent;
provided, however, that so long as this Agreement shall be in
effect the Company shall not solicit or accept offers to purchase
Notes through any additional agent other than an Agent, unless,
such additional agent becomes a party to this Agreement or a
substantially similar agreement upon the same terms and
conditions (including commissions) then in effect under this
Agreement, with respect to the original Agents hereunder.
(b) Subject to the terms and conditions stated herein,
whenever the Company shall sell Notes directly to one of you as
Purchaser, each such sale of Notes shall be made in accordance
with the terms of this Agreement and, unless otherwise agreed by
the Company and such Purchaser, any supplemental agreement
(herein referred to as a "Terms Agreement") relating thereto
between the Company and the Purchaser. Each such Terms Agreement
will take the form of either (i) a written agreement between such
Agent and the Company, which shall be substantially in the form
of Exhibit B or (ii) an oral agreement between such Agent and the
Company, confirmed in writing by such Agent to the Company. The
Purchaser's commitment to purchase Notes pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company and the Guarantor
herein contained and shall be subject to the terms and conditions
herein set forth. Each Terms Agreement shall describe the Notes
to be purchased by the Purchaser pursuant thereto, specify the
principal amount of such Notes, the price to be paid to the
Company for such Notes, the rate at which interest will be paid
on the Notes, the Closing Date for such Notes, the place of
delivery of the Notes and payment therefor, the method of payment
and any modification of the requirements for the delivery of the
opinions of counsel, the certificates from the Company or its
officers, and the letter from the Company's independent public
accountants, pursuant to Section 6(b). Such Terms Agreement
shall also specify the period of time referred to in Section
4(m).
Delivery of the certificates for Notes sold to the
Purchaser pursuant to any Terms Agreement shall be made as agreed
to between the Company and the Purchaser as set forth in the
respective Terms Agreement, not later than the Closing Date set
forth in such Terms Agreement, against payment of funds to the
Company in the net amount due to the Company for such Notes by
the method and in the form set forth in the respective Terms
Agreement.
Unless otherwise agreed to between the Company and the
Purchaser in a Terms Agreement, any Note sold to a Purchaser (i)
shall be purchased by such Purchaser at a price equal to 100% of
the principal amount thereof less a percentage equal to the
commission applicable to an agency sale of a Note of identical
maturity and (ii) may be resold by such Purchaser at varying
prices from time to time or, if set forth in the applicable Terms
Agreement and Supplement to the Prospectus, at a fixed public
offering price. In connection with any resale of Notes
purchased, a Purchaser may use a selling or dealer group and may
reallow to any broker or dealer any portion of the discount or
commission payable pursuant hereto.
3. Offering and Sale of Notes. Each Agent and the
Company agree to perform the respective duties and obligations
specifically provided to be performed by them in the Procedures.
4. Agreements. The Company and the Guarantor agree
with you that:
(a) Prior to the termination of the offering of
the Notes, the Company and the Guarantor will not file any
amendment of the Registration Statement or supplement to the
Prospectus (except for (i) periodic or current reports filed
under the Exchange Act, (ii) a supplement relating to any
offering of Notes providing solely for the specification of
or a change in the maturity dates, interest rates, issuance
prices or other similar terms of any Notes or (iii) a
supplement relating to an offering of Securities (other than
the Notes) unless the Company and the Guarantor have
furnished each of you a copy for your review prior to filing
and given each of you a reasonable opportunity to comment on
any such proposed amendment or supplement. Subject to the
foregoing sentence, the Company and the Guarantor will cause
each supplement to the Prospectus to be filed with the
Commission pursuant to the applicable paragraph of Rule
424(b) within the time period prescribed and will provide
evidence satisfactory to you of such filing. The Company
and the Guarantor will promptly advise each of you (i) when
the Prospectus, and any supplement thereto, shall have been
filed with the Commission pursuant to Rule 424(b), (ii)
when, prior to the termination of the offering of the Notes,
any amendment of the Registration Statement shall have been
filed or become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement
or supplement to the Prospectus or for any additional
information, (iv) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any
proceeding for that purpose and (v) of the receipt by the
Company or the Guarantor of any notification with respect to
the suspension of the qualification of the Notes for sale in
any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company and the Guarantor
will use their best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as
possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the
Notes is required to be delivered under the Act, any event
occurs as a result of which the Prospectus as then
supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary
to make the statements therein, in the light of the
circumstances under which they were made, not misleading, or
if it shall be necessary to amend the Registration Statement
or to supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, the
Company and the Guarantor promptly will (i) notify each of
you to suspend solicitations of offers to purchase Notes
(and, if so notified by the Company and the Guarantor, each
of you shall (notwithstanding the provisions of paragraph
(a) of Section 2) immediately suspend such solicitations and
cease using the Prospectus as then supplemented), (ii)
prepare and file with the Commission, subject to the first
sentence of paragraph (a) of this Section 4, an amendment or
supplement which will correct such statement or omission or
effect such compliance and (iii) supply any supplemented
Prospectus to each of you in such quantities as you may
reasonably request. If such amendment or supplement, and
any documents, certificates and opinions furnished to each
of you pursuant to paragraph (g) of this Section 4 in
connection with the preparation or filing of such amendment
or supplement are satisfactory in all respects to you, you
will, upon the filing of such amendment or supplement with
the Commission and upon the effectiveness of an amendment to
the Registration Statement, if such an amendment is
required, resume your obligation to solicit offers to
purchase Notes hereunder.
(c) The Guarantor, during the period when a prospectus
relating to the Notes is required to be delivered under the
Act, will file promptly all documents required to be filed
with the Commission pursuant to Section 13(a), 13(c), 14 or
15(d) of the Exchange Act and will furnish to each of you
copies of such documents. In addition, on or prior to the
date on which the Guarantor makes any announcement to the
general public concerning earnings or concerning any other
event which is required to be described, or which the
Guarantor proposes to describe, in a document filed pursuant
to the Exchange Act, the Guarantor will furnish to each of
you the information contained or to be contained in such
announcement. The Guarantor also will furnish to each of
you copies of all other press releases or announcements to
the general public. The Guarantor will immediately notify
each of you of any downgrading in the rating of the Notes or
any other debt securities of the Company or the Guarantor,
or any public announcement that the rating of the Notes or
any other debt securities of the Company or the Guarantor is
under consideration for possible downgrade by any
"nationally recognized statistical rating organization" (as
defined for purposes of Rule 436(g) under the Act), as soon
as the Guarantor learns of any such downgrading or public
announcement.
(d) As soon as practicable, the Guarantor will make
generally available to its security holders and to each of
you an earnings statement or statements of the Guarantor and
its consolidated subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under
the Act.
(e) The Company and the Guarantor will furnish to each
of you and your counsel, without charge, copies of the
Registration Statement (including exhibits thereto) and, so
long as delivery of a prospectus may be required by the Act,
as many copies of the Prospectus and any supplement thereto
as you may reasonably request.
(f) The Company will arrange for the qualification of
the Notes for sale under the laws of such jurisdictions as
any of you may designate, will maintain such qualifications
in effect so long as required for the distribution of the
Notes, and will arrange for the determination of the
legality of the Notes for purchase by institutional
investors.
(g) The Company and the Guarantor, as the case may be,
shall furnish to each of you such information, documents,
certificates of officers of the Company and the Guarantor
and opinions of counsel for the Company and the Guarantor
relating to the business, operations and affairs of the
Company and the Guarantor, the Registration Statement, the
Prospectus, and any amendments thereof or supplements
thereto, the Indenture, the Notes, the Guarantees, this
Agreement, the Procedures and the performance by the
Company, the Guarantor and you of their and your respective
obligations hereunder and thereunder as any of you may from
time to time and at any time prior to the termination of
this Agreement reasonably request.
(h) The Company shall, whether or not any sale of the
Notes is consummated, (i) pay all expenses incident to the
performance of its obligations under this Agreement,
including the fees and disbursements of its accountants and
counsel, the cost of printing or other production and
delivery of the Registration Statement, the Prospectus, all
amendments thereof and supplements thereto, the Indenture,
this Agreement and all other documents relating to the
offering, the cost of preparing, printing, packaging and
delivering the Notes, the fees and disbursements, including
fees of counsel, incurred in compliance with Section 4(f),
the fees and disbursements of the Trustee and the fees of
any agency that rates the Notes, (ii) reimburse each of you
on a monthly basis for all out-of-pocket expenses (including
without limitation advertising expenses) incurred by you in
connection with this Agreement and (iii) pay the reasonable
fees and expenses of your counsel incurred in connection
with this Agreement.
(i) Each acceptance by the Company of an offer to
purchase Notes will be deemed to be an affirmation that the
representations and warranties of the Company and the
Guarantor contained in this Agreement are true and correct
at the time of such acceptance, as though made at and as of
such time, and a covenant that such representations and
warranties will be true and correct at the time of delivery
to the purchaser of the Notes relating to such acceptance,
as though made at and as of such time (it being understood
that for purposes of the foregoing affirmation and covenant
such representations and warranties shall relate to the
Registration Statement and Prospectus as amended or
supplemented at each such time). Each such acceptance by
the Company of an offer for the purchase of Notes shall be
deemed to constitute an additional representation, warranty
and agreement by the Company and the Guarantor that, as of
the settlement date for the sale of such Notes, after giving
effect to the issuance of such Notes, of any other Notes to
be issued on or prior to such settlement date and of any
other Securities to be issued and sold by the Company on or
prior to such settlement date, the aggregate amount of
Securities (including any Notes) which have been issued and
sold by the Company will not exceed the amount of Securities
registered pursuant to the Registration Statement.
(j) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an
amendment or supplement relating to any offering of
Securities other than the Notes or providing solely for the
specification of or a change in the maturity dates, the
interest rates, the issuance prices or other terms of any
Notes sold pursuant hereto), the Guarantor will deliver or
cause to be delivered promptly to each of you a certificate
of the Guarantor, signed by the Chairman of the Board, a
Vice Chairman of the Board, the President or a Vice
President and a financial or accounting officer of the
Guarantor (which signatories shall not be employed in the
same department), dated the date of the effectiveness of
such amendment or the date of the filing of such supplement,
in form reasonably satisfactory to you, of the same tenor as
the certificate referred to in Section 5(e) but modified to
relate to the last day of the fiscal quarter for which
financial statements of the Guarantor were last filed with
the Commission and to the Registration Statement and the
Prospectus as amended and supplemented to the time of the
effectiveness of such amendment or the filing of such
supplement.
(k) Each time that the Registration Statement or the
Prospectus is amended or supplemented (other than by an
amendment or supplement (i) relating to any offering of
Securities other than the Notes, (ii) providing solely for
the specification of or a change in the maturity dates, the
interest rates, the issuance prices or other terms of any
Notes sold pursuant hereto or (iii) setting forth or
incorporating by reference financial statements or other
information as of and for a fiscal quarter, unless, in the
case of clause (iii) above, in the reasonable judgment of
any of you, such financial statements or other information
are of such a nature that an opinion of counsel should be
furnished), the Company shall furnish or cause to be
furnished promptly to each of you a written opinion of
counsel of each of the Company and the Guarantor
satisfactory to each of you, dated the date of the
effectiveness of such amendment or the date of the filing of
such supplement, in form satisfactory to each of you, of the
same tenor as the opinions referred to in Section 5(b) and
5(c) but modified to relate to the Registration Statement
and the Prospectus as amended and supplemented to the time
of the effectiveness of such amendment or the filing of such
supplement or, in lieu of such opinion, counsel last
furnishing such an opinion to you may furnish each of you
with a letter to the effect that you 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 will be deemed to relate to the
Registration Statement and the Prospectus as amended and
supplemented to the time of the effectiveness of such
amendment or the filing of such supplement).
(l) Each time that the Registration Statement or the
Prospectus is amended or supplemented to include or
incorporate amended or supplemental financial information,
the Guarantor shall cause its independent public accountants
promptly to furnish each of you a letter, dated the date of
the effectiveness of such amendment or the date of the
filing of such supplement, in form satisfactory to each of
you, of the same tenor as the letter referred to in Section
5(g) with such changes as may be necessary to reflect the
amended and supplemental financial information included or
incorporated by reference in the Registration Statement and
the Prospectus, as amended or supplemented to the date of
such letter; provided, however, that, if the Registration
Statement or the Prospectus is amended or supplemented
solely to include or incorporate by reference financial
information as of and for a fiscal quarter, the Guarantor's
independent public accountants may limit the scope of such
letter, which shall be satisfactory in form to each of you,
to the unaudited financial statements, the related
"Management's Discussion and Analysis of Financial Condition
and Results of Operations" and any other information of an
accounting, financial or statistical nature included in such
amendment or supplement, unless, in the reasonable judgment
of any of you, such letter should cover other information or
changes in specified financial statement line items.
(m) During the period, if any, specified in any Terms
Agreement, without the prior consent of the Purchaser
thereunder, (i) neither the Company, the Guarantor nor any
subsidiary of the Guarantor which has entered into a support
agreement with the Guarantor shall issue or announce the
proposed issuance of any of its debt securities, including
Notes, with terms substantially similar to the Notes being
purchased pursuant to such Terms Agreement, other than
borrowings under its revolving credit agreements and lines
of credit and issuances of its commercial paper and (ii) the
Guarantor shall not issue any guarantees of such debt
securities of the Company or of any other subsidiary of the
Guarantor, other than the Guarantees related to the Notes.
5. Conditions to the Obligations of the Agents. The
obligations of each Agent to solicit offers to purchase the Notes
shall be subject to the accuracy of the representations and
warranties on the part of the Company and the Guarantor contained
herein as of the Execution Time, on the Effective Date, when any
supplement to the Prospectus is filed with the Commission and as
of each Closing Date, to the accuracy of the statements of the
Company and the Guarantor made in any certificates pursuant to
the provisions hereof, to the performance by the Company and the
Guarantor of their obligations hereunder and to the following
additional conditions:
(a) If filing of the Prospectus, or any supplement
thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, shall have been filed
in the manner and within the time period required by Rule
424(b); and no stop order suspending the effectiveness of
the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) The Company shall have furnished to each Agent the
opinion of the General Counsel or Counsel-Corporate Law of
the Guarantor, dated the Execution Time, to the effect that:
(i) The Guarantor has been duly incorporated and
is validly existing and in good standing under the laws
of the State of Delaware;
(ii) The Guarantor is duly qualified to do
business and is in good standing as a foreign
corporation in all jurisdictions in which its ownership
of property or the conduct of its business requires
such qualification (except where the failure to so
qualify would not have a material adverse effect upon
it), and has all power and authority necessary to own
its properties and conduct the business in which it is
engaged as described in the Prospectus;
(iii) The Indenture has been duly authorized,
executed and delivered by the Guarantor and duly
qualified under the Trust Indenture Act and, assuming
due authorization, execution and delivery by the
Company and the Trustee, constitutes a valid and
legally binding instrument of the Guarantor enforceable
in accordance with its terms;
(iv) The Guarantees relating to the Notes have
been duly authorized by the Guarantor and, when the
terms of the Notes and of their issue and sale have
been duly established in accordance with this Agreement
so as not to violate any applicable law or agreement or
instrument then binding on the Company, and the Notes
have been duly executed by the Company and duly
authenticated and delivered by the Trustee in
accordance with the provisions of the Indenture and
upon payment and delivery in accordance with this
Agreement, will constitute valid and legally binding
obligations of the Guarantor enforceable in accordance
with their terms and entitled to the benefits of the
Indenture;
(v) The Guarantor's authorized equity
capitalization is as set forth in the Prospectus; and
the statements made in the Prospectus under the
captions "Description of Debt Securities and
Guarantees" and "Description of Notes" (or comparable
captions), insofar as they purport to constitute
summaries of the documents referred to therein,
constitute accurate summaries of the forms of such
documents in all material respects;
(vi) The Registration Statement is effective under
the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) has been
made in the manner and within the time period required
by Rule 424(b); and to the knowledge of such counsel,
no stop order suspending its effectiveness has been
issued and no proceeding for that purpose is pending or
threatened by the Commission;
(vii) No order issued by the Commission directed to
any document incorporated by reference in the
Prospectus has been issued and, to the knowledge of
such counsel, no challenge has been made by the
Commission to the accuracy or adequacy of any such
document;
(viii) Such counsel does not know of any litigation
or any governmental proceeding pending or threatened
(A) against the Guarantor which would impair the
performance by the Guarantor of its obligations under
this Agreement or (B) against the Guarantor or any of
its telephone subsidiaries which is required to be
disclosed in the Prospectus (including the documents
incorporated by reference therein) which is not
disclosed and correctly summarized therein;
(ix) To the best of such counsel's knowledge, the
Guarantor is not in violation of its corporate charter
or by-laws, or in default under any material agreement,
indenture or instrument;
(x) This Agreement has been duly authorized,
executed and delivered by the Guarantor;
(xi) The execution, delivery and performance of
this Agreement and the Guarantees and compliance by the
Guarantor with the provisions of the Guarantees and the
Indenture will not conflict with, or result in the
creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Guarantor
pursuant to the terms of, or constitute a default
under, any agreement, indenture or instrument known to
such counsel, or result in a violation of the corporate
charter or by-laws of the Guarantor or any order, rule
or regulation, known to such counsel, of any court or
governmental agency having jurisdiction over the
Guarantor or its property; and
(xii) No consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein except such as have been obtained under the Act
and such other approvals (specified in such opinion) as
have been obtained.
In giving such opinion, such counsel need not express
any opinion regarding any order, consent or other
authorization or approval which may be legally required
pursuant to any state securities law.
Such counsel may state that the opinions set forth in
paragraphs (iii) and (iv) above are subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and
fair dealing.
Such opinion shall also state that each registration
statement referred to in paragraph (a) of Section 1 and the
Prospectus, as of, in the case of each registration
statement, their respective Effective Dates and, in the case
of the Prospectus, its issue date, complied as to form in
all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations of the
Commission under said Acts (except that no opinion need be
expressed as to the financial statements and other financial
data contained therein) and each document incorporated by
reference in the Prospectus as filed under the Exchange Act
complied when so filed as to form in all material respects
with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder (except
that no opinion need be expressed as to the financial
statements and other financial data contained therein).
Such opinion shall also contain a statement that such
counsel has no reason to believe that (i) each registration
statement referred to in paragraph (a) of Section 1, on the
date it became effective (or, with respect to any such
registration statement, if the Guarantor has filed an Annual
Report on Form 10-K or post-effective amendment to such
registration statement, since its effective date, the date
of the Guarantor's most recent Annual Report on Form 10-K or
the effective date of the last such post-effective
amendment, as the case may be,), contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein not misleading (except that no
belief need be expressed as to the financial statements and
other financial data contained therein), or (ii) the
Prospectus contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading (except that no belief
need be expressed as to the financial statements and other
financial data contained therein).
Such opinion shall also contain such statements as to
the ownership of, and other matters relating to, the
outstanding capital stock of the Guarantor's subsidiaries as
may be requested by the Agents.
In rendering such opinion, such counsel may rely (i) as
to matters involving the application of laws of any
jurisdiction other than the State of New York or the United
States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel
for the Agent and (ii) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of
the Guarantor and public officials. References to the
Prospectus in this paragraph (b) include any supplements
thereto at the date such opinion is rendered.
In rendering the opinion set forth in paragraphs (iv),
(xi) and (xii) above, such counsel may assume that under the
laws of any country in whose currency (or whose currency is
a component currency of a composite currency in which) any
Notes are denominated or payable, if other than U.S.
dollars, or of any governmental authority having
jurisdiction over any composite currency, no consent,
approval, authorization or order of, or filing with, any
governmental agency or body or court is required for the
consummation of the transactions contemplated by this
Agreement in connection with the issuance or sale of such
Notes by the Company, and the issuance or sale of such Notes
and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms or
provisions of any statute, rule, regulation or order of any
governmental agency or body or any court. Such counsel may
also note that (i) a New York statute provides that with
respect to a foreign currency obligation, a court of the
State of New York shall render a judgment or decree in such
foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of
exchange prevailing on the date of entry of such judgment or
decree and (ii) with respect to a foreign currency
obligation, a United States Federal court in New York may
award judgment in U.S. dollars, provided that such counsel
may state that such counsel expresses no opinion as to the
rate of exchange such court would apply.
(c) The Company shall have furnished to each Agent the
opinion of Counsel-Corporate Law of the Guarantor, dated the
Execution Time, to the effect that:
(i) The Company has been duly incorporated and is
validly existing and in good standing under the laws of
the State of Delaware;
(ii) The Company is duly qualified to do business
and is in good standing as a foreign corporation in all
jurisdictions in which its ownership of property or the
conduct of its business requires such qualification
(except where the failure to so qualify would not have
a material adverse effect upon the Company), and has
all power and authority necessary to own its properties
and conduct the business in which it is engaged as
described in the Prospectus;
(iii) The Indenture has been duly authorized,
executed and delivered by the Company and duly
qualified under the Trust Indenture Act and, assuming
due authentication, execution and delivery by the
Guarantor and the Trustee, constitutes a valid and
legally binding instrument of the Company enforceable
in accordance with its terms;
(iv) The Notes have been duly authorized by the
Company and, when the terms of the Notes and of their
issue and sale have been duly established in accordance
with this Agreement so as not to violate any applicable
law or agreement or instrument then binding on the
Company, and the Notes have been duly executed by the
Company and duly authenticated and delivered by the
Trustee in accordance with the provisions of the
Indenture and upon payment and delivery in accordance
with this Agreement, will constitute valid and legally
binding obligations of the Company enforceable in
accordance with their terms and entitled to the
benefits of the Indenture;
(v) The Company's authorized equity
capitalization is as set forth in the Prospectus; and
the statements made in each Prospectus under the
captions "Description of Debt Securities and
Guarantees" and "Description of Notes" (or comparable
captions), insofar as they purport to constitute
summaries of the documents referred to therein,
constitute accurate summaries of the forms of such
documents in all material respects (subject to the
insertion in the Notes of the maturity dates, the
interest rates and other similar terms thereof which
will be described in supplements to the Prospectus as
contemplated by the fourth sentence of Section 1(a) of
this Agreement);
(vi) The Registration Statement is effective under
the Act; any required filing of the Prospectus, and any
supplements thereto, pursuant to Rule 424(b) have been
made in the manner and within the time period required
by Rule 424(b); and to the knowledge of such counsel,
no stop order suspending its effectiveness has been
issued and no proceeding for that purpose is pending or
threatened by the Commission;
(vii) such counsel does not know of any litigation
or any governmental proceeding pending or threatened
against the Company which would impair the performance
by the Company of its obligations under this Agreement
or is required to be disclosed in the Prospectus
(including the documents incorporated by reference
therein) which is not disclosed and correctly
summarized therein;
(viii) To the best of such counsel's knowledge, the
Company is not in violation of its corporate charter or
by-laws, or in default under any material agreement,
indenture or instrument;
(ix) This Agreement has been duly authorized,
executed and delivered by the Company;
(x) The execution, delivery and performance of
this Agreement and the Notes and compliance by the
Company with the provisions of the Notes and the
Indenture will not conflict with, or result in the
creation or imposition of any lien, charge or
encumbrance upon any of the assets of the Company
pursuant to the terms of, or constitute a default
under, any agreement, indenture or instrument known to
such counsel, or result in a violation of the corporate
charter or by-laws of the Company or any order, rule or
regulation, known to such counsel, of any court or
governmental agency having jurisdiction over the
Company or its property; and
(xi) No consent, approval, authorization or order
of any court or governmental agency or body is required
for the consummation of the transactions contemplated
herein except such as have been obtained under the Act
and such other approvals (specified in such opinion) as
have been obtained.
In giving such opinion, such counsel need not express
any opinion regarding any order, consent or other
authorization or approval which may be legally required
pursuant to any state securities law.
Such counsel may state that the opinions set forth in
paragraphs (iii) and (iv) above are subject to the effects
of bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and other similar laws relating
to or affecting creditors' rights generally, general
equitable principles (whether considered in a proceeding in
equity or at law) and an implied covenant of good faith and
fair dealing.
Such opinion shall also state that each registration
statement referred to in paragraph (a) of Section 1 and the
Prospectus, as of, in the case of each registration
statement, their respective Effective Dates and, in the case
of the Prospectus, its issue date, complied as to form in
all material respects with the requirements of the Act and
the Trust Indenture Act and the rules and regulations of the
Commission under said Acts (except that no opinion need be
expressed as to the financial statements and other financial
data contained therein) and each document incorporated by
reference in the Prospectus as filed under the Exchange Act
complied when so filed as to form in all material respects
with the applicable requirements of the Exchange Act and the
rules and regulations of the Commission thereunder (except
that no opinion need be expressed as to the financial
statements and other financial data contained therein).
Such opinion shall also contain a statement that such
counsel has no reason to believe that (i) each registration
statement referred to in paragraph (a) of Section 1, on the
date it became effective (or, with respect to any such
registration statement, if the Guarantor has filed an Annual
Report on Form 10-K or post-effective amendment to such
registration statement, since its effective date, the date
of the Guarantor's most recent Annual Report on Form 10-K or
the effective date of the last such post-effective
amendment, as the case may be), contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to
make the statements therein not misleading (except that no
belief need be expressed as to the financial statements and
other financial data contained therein), or (ii) the
Prospectus contains an untrue statement of a material fact
or omits to state a material fact necessary in order to make
the statements therein, in light of the circumstances under
which they were made, not misleading (except that no belief
need be expressed as to the financial statements and other
financial data contained therein).
In rendering such opinion, such counsel may rely (i) as
to matters involving the application of laws of any
jurisdiction other than the State of New York or the United
States, to the extent deemed proper and specified in such
opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to counsel
for the Agent and (ii) as to matters of fact, to the extent
deemed proper, on certificates of responsible officers of
the Company and public officials. References to the
Prospectus in this paragraph (c) include any supplements
thereto at the date such opinion is rendered.
In rendering the opinion set forth in paragraphs (iv),
(x) and (xi) above, such counsel may assume that under the
laws of any country in whose currency (or whose currency is
a component currency of a composite currency in which) any
Notes are denominated or payable, if other than U.S.
dollars, or of any governmental authority having
jurisdiction over any composite currency, no consent,
approval, authorization or order of, or filing with, any
governmental agency or body or court is required for the
consummation of the transactions contemplated by this
Agreement in connection with the issuance or sale of such
Notes by the Company, and the issuance or sale of such Notes
and compliance with the terms and provisions thereof will
not result in a breach or violation of any of the terms or
provisions of any statute, rule, regulation or order of any
governmental agency or body or any court. Such counsel may
also note that (i) a New York statute provides that with
respect to a foreign currency obligation, a court of the
State of New York shall render a judgment or decree in such
foreign currency and such judgment or decree shall be
converted into currency of the United States at the rate of
exchange prevailing on the date of entry of such judgment or
decree and (ii) with respect to a foreign currency
obligation, a United States Federal court in New York may
award judgment in U.S. dollars, provided that such counsel
may state that such counsel expresses no opinion as to the
rate of exchange such court would apply.
(d) Each Agent shall have received from Simpson
Thacher & Bartlett, counsel for the Agents, such opinion or
opinions, dated the date hereof, with respect to the
issuance and sale of the Notes, the Indenture, the
Registration Statement, the Prospectus (together with any
supplement thereto), including confirming the accuracy in
all material respects of the description of certain United
States federal income tax consequences appearing under the
caption "Certain United States Federal Income Tax
Consequences" in the Prospectus, and other related matters
as the Agents may reasonably require, and the Company shall
have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such
matters.
(e) The Guarantor shall have furnished to each Agent a
certificate, signed by the Chairman of the Board, a Vice
Chairman of the Board, the President or a Vice President and
a financial or accounting officer of the Guarantor (which
signatories shall not be employed in the same department),
dated the Execution Time, to the effect that the signers of
such certificate have carefully examined the Registration
Statement, the Prospectus, any supplement to the Prospectus
and this Agreement and that:
(i) the representations and warranties of the
Guarantor in this Agreement are true and correct in all
material respects on and as of the date hereof with the
same effect as if made on the date hereof and the
Guarantor has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation
of the Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the knowledge of the Guarantor, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse
change in the condition (financial or other), earnings,
business or properties of the Guarantor and its
subsidiaries taken as a whole, whether or not arising
from transactions in the ordinary course of business,
except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(f) The Company shall have furnished to each Agent a
certificate, signed by the Chairman of the Board, the
President or a Vice President and a financial or accounting
officer of the Company, dated the Execution Time, to the
effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any
supplement to the Prospectus and this Agreement and that:
(i) the representations and warranties of the
Company in this Agreement are true and correct in all
material respects on and as of the date hereof with the
same effect as if made on the date hereof and the
Company has complied with all the agreements and
satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation
of the Agents to solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued and no
proceedings for that purpose have been instituted or,
to the knowledge of the Company, threatened; and
(iii) since the date of the most recent financial
statements included in the Prospectus (exclusive of any
supplement thereto), there has been no material adverse
change in the condition (financial or other), earnings,
business or properties of the Company, whether or not
arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the
Prospectus (exclusive of any supplement thereto).
(g) At the Execution Time, Coopers & Lybrand shall
have furnished to each Agent a letter or letters (which may
refer to letters previously delivered to the Agents), dated
as of the Execution Time, in form and substance satisfactory
to the Agents and subject to compliance with the
requirements of Statement on Auditing Standards No. 72
issued by the American Institute of Certified Public
Accountants and covering such specified financial statement
items as the Agents may reasonably request.
(h) Prior to the Execution Time, the Company shall
have furnished to each Agent such further information,
documents, certificates and opinions of counsel as the
Agents may reasonably request.
If any of the conditions specified in this Section 5
shall not have been fulfilled in all material respects when and
as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall
not be in all material respects reasonably satisfactory in form
and substance to such Agents and counsel for the Agents, this
Agreement and all obligations of any Agent hereunder may be
canceled at any time by the Agents. Notice of such cancellation
shall be given to the Company in writing or by telephone or
telegraph confirmed in writing.
The documents required to be delivered by this Section
5 shall be delivered at the office of Simpson Thacher & Bartlett,
counsel for the Agents, at 425 Lexington Avenue, New York, New
York, on the date hereof.
6. Conditions to the Obligations of the Purchaser.
The obligations of the Purchaser to purchase any Notes will be
subject to the accuracy of the representations and warranties on
the part of the Company and the Guarantor herein as of the date
of any related Terms Agreement and as of the Closing Date for
such Notes, to the performance and observance by the Company and
the Guarantor of all covenants and agreements herein contained on
their part to be performed and observed and to the following
additional conditions precedent:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(b) If specified by any related Terms Agreement and
except to the extent modified by such Terms Agreement, the
Purchaser shall have received, appropriately updated, (i)
certificates of the Company and the Guarantor, dated as of
the Closing Date, to the effect set forth in Sections 5(e)
and (f) (except that references to the Prospectus shall be
to the Prospectus as supplemented at the time of execution
of the Terms Agreement), (ii) the opinion of the General
Counsel or Counsel-Corporate Law of the Guarantor, dated as
of the Closing Date, to the effect set forth in Section
5(b); (iii) the opinion of Counsel-Corporate Law of the
Guarantor, dated as of the Closing Date to the effect set
forth in Section 5(c); (iv) the opinion of Simpson Thacher &
Bartlett, counsel for the Purchaser, dated as of the Closing
Date, to the effect set forth in Section 5(d), and (v)
letter of Coopers & Lybrand, independent accountants for the
Company, dated as of the Closing Date, to the effect set
forth in Section 5(g).
(c) Prior to the Closing Date, the Company and the
Guarantor shall have furnished to the Purchaser such further
information, certificates and documents as the Purchaser may
reasonably request.
If any of the conditions specified in this Section 6
shall not have been fulfilled in all material respects when and
as provided in this Agreement and any Terms Agreement, or if any
of the opinions and certificates mentioned above or elsewhere in
this Agreement or such Terms Agreement shall not be in all
material respects reasonably satisfactory in form and substance
to the Purchaser and its counsel, such Terms Agreement and all
obligations of the Purchaser thereunder and with respect to the
Notes subject thereto may be canceled at, or at any time prior
to, the respective Closing Date by the Purchaser. Notice of such
cancellation shall be given to the Company and the Guarantor in
writing or by telephone or telegraph confirmed in writing.
7. Right of Person Who Agreed to Purchase to Refuse
to Purchase. The Company agrees that any person who has agreed
to purchase and pay for any Note, including a Purchaser and any
person who purchases pursuant to a solicitation by any of the
Agents, shall have the right to refuse to purchase such Note if
(a) at the Closing Date therefor, any condition set forth in
Section 5 or 6, as applicable, shall not be satisfied, (b)
subsequent to the agreement to purchase such Note, any change, or
any development involving a prospective change, in or affecting
the business or properties of the Guarantor and its subsidiaries
taken as a whole shall have occurred the effect of which is, in
the reasonable judgment of the Purchaser or the Agent which
presented the offer to purchase such Note, as applicable, so
material and adverse as to make it impractical or inadvisable to
proceed with the delivery of such Note or (c) subsequent to the
agreement to purchase such Note, there shall have been any
downgrading in the rating of any debt securities of the Company
or the Guarantor, or any public announcement that the rating of
any debt securities of the Company or the Guarantor is under
consideration for possible downgrade by any "nationally
recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act).
8. Indemnification and Contribution. (a) The
Company agrees to indemnify and hold harmless each of you and
each person who controls any of you within the meaning of either
the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which you, they or
any of you or them may become subject under the Act, the Exchange
Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or
are based upon any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement for
the registration of the Securities as originally filed or in any
amendment thereof, or in the Prospectus or any preliminary
Prospectus, or in any amendment thereof or supplement thereto, or
arise out of or are based upon the omission or alleged omission
to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for
any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim,
damage, liability or action; provided, however, that (i) the
Company will not be liable in any such case to the extent that
any such loss, claim, damage or liability arises out of or is
based upon any such untrue statement or alleged untrue statement
or omission or alleged omission made therein in reliance upon and
in conformity with written information furnished to the Company
by any of you for use in connection with the preparation thereof,
and (ii) such indemnity with respect to the Prospectus or any
preliminary Prospectus shall not inure to the benefit of any of
you (or any person controlling any of you) from whom the person
asserting any such loss, claim, damage or liability purchased the
Notes which are the subject thereof if such person did not
receive a copy of the Prospectus (or the Prospectus as
supplemented) excluding documents incorporated therein by
reference at or prior to the confirmation of the sale of such
Notes to such person in any case where such delivery is required
by the Act and the untrue statement or omission of a material
fact contained in the Prospectus or any preliminary Prospectus
was corrected in the Prospectus (or the Prospectus as
supplemented). This indemnity agreement will be in addition to
any liability which the Company may otherwise have.
(b) Each of you agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who sign
the Registration Statement and each person who controls the
Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to
you, but only with reference to written information relating to
that one of you furnished to the Company by that one of you
specifically for use in the preparation of the documents referred
to in the foregoing indemnity. This indemnity agreement will be
in addition to any liability which you may otherwise have. The
Company and the Guarantor acknowledge that the statements set
forth in the last paragraph of the cover page, and under the
heading "Plan of Distribution", of the Prospectus Supplement
constitute the only information furnished in writing by any of
you for inclusion in the documents referred to in the foregoing
indemnity, and you confirm that such statements are correct.
(c) Promptly after receipt by an indemnified party
under this Section 8 of notice of the commencement of any action,
such indemnified party will, if a claim in respect thereof is to
be made against the indemnifying party under this Section 8,
notify the indemnifying party in writing of the commencement
thereof; but the omission to so notify the indemnifying party
will not relieve it from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case
any such action is brought against any indemnified party, and it
notifies the indemnifying party of the commencement thereof, the
indemnifying party will be entitled to participate therein, and
to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid
notice from such indemnified party, to assume the defense
thereof, with counsel satisfactory to such indemnified party;
provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and
the indemnified party shall have reasonably concluded that there
may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available
to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal
defenses and to otherwise participate in the defense of such
action on behalf of such indemnified party or parties. Upon
receipt of notice from the indemnifying party to such indemnified
party of its election to so assume the defense of such action and
approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this
Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof
unless (i) the indemnified party shall have employed separate
counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence (it
being understood, however, that the indemnifying party shall not
be liable for the expenses of more than one separate counsel
(plus any local counsel), approved by you in the case of
paragraph (a) of this Section 8, representing the indemnified
parties under such paragraph (a) who are parties to such action),
(ii) the indemnifying party shall not have employed counsel
satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at
the expense of the indemnifying party; and except that, if clause
(i) or (iii) is applicable, such liability shall be only in
respect of the counsel referred to in such clause (i) or (iii).
The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if
settled with such consent or if there be a final judgment for the
plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by
reason of such settlement or judgment. Notwithstanding the
foregoing sentence, if at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified
party for fees and expenses of counsel as contemplated by this
Section 8, the indemnifying party agrees that it shall be liable
for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 60 days
after receipt by such indemnifying party of the aforesaid request
and (ii) such indemnifying party shall not have reimbursed the
indemnified party in accordance with such request prior to the
date of such settlement. No indemnifying party shall, without
the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of
which any indemnified party is or could have been a party and
indemnity could have been sought hereunder by such indemnified
party, unless such settlement includes an unconditional release
of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) In order to provide for just and equitable
contribution in circumstances in which the indemnification
provided for in paragraph (a) of this Section 8 is due in
accordance with its terms but is for any reason held by a court
to be unavailable from the Company on grounds of policy or
otherwise, the Company and each of you shall contribute to the
aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with
investigating or defending same) to which the Company and any of
you may be subject in such proportion so that each of you is
responsible for that portion represented by the percentage that
the aggregate commissions received by that one of you pursuant to
Section 2 in connection with the Notes from which such losses,
claims, damages and liabilities arise (or, in the case of Notes
sold pursuant to a Terms Agreement, the aggregate commissions
that would have been received by that one of you if such
commissions had been payable), bears to the aggregate principal
amount of such Notes sold and the Company is responsible for the
balance; provided, however, that (y) in no case shall any of you
be responsible for any amount in excess of the commissions
received by that one of you in connection with the Notes from
which such losses, claims, damages and liabilities arise (or, in
the case of Notes sold pursuant to a Terms Agreement, the
aggregate commissions that would have been received by that one
of you if such commissions had been payable) and (z) no person
guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent
misrepresentation. For purposes of this Section 8, each person
who controls any of you within the meaning of the Act shall have
the same rights to contribution as you and each person who
controls the Company within the meaning of either the Act or the
Exchange Act, each officer of the Company who shall have signed
the Registration Statement and each director of the Company shall
have the same rights to contribution as the Company, subject in
each case to clauses (y) and (z) of this paragraph (d). Any
party entitled to contribution will, promptly after receipt of
notice of commencement of any action, suit or proceeding against
such party in respect of which a claim for contribution may be
made against another party or parties under this paragraph (d),
notify such party or parties from whom contribution may be
sought, but the omission to so notify such party or parties shall
not relieve the party or parties from whom contribution may be
sought from any other obligation it or they may have hereunder or
otherwise than under this paragraph (d).
9. Termination. (a) This Agreement will continue in
effect until terminated as provided in this Section 9. This
Agreement may be terminated by either the Company as to any one
of you or by any one of you insofar as this Agreement relates to
that one of you, by giving written notice of such termination to
that one of you or the Company, as the case may be. This
Agreement shall so terminate at the close of business on the
first business day following the receipt of such notice by the
party to whom such notice is given. In the event of such
termination, no party shall have any liability to the other
parties hereto, except as provided in the fourth paragraph of
Section 2(a), Section 4(h), Section 8 and Section 10. The
provisions of this Agreement (including without limitation
Section 7 hereof) applicable to any purchase of a Note for which
an agreement to purchase exists prior to the termination hereof
shall survive any termination of this Agreement.
(b) Each Terms Agreement shall be subject to
termination in the absolute discretion of the Purchaser, by
notice given to the Company prior to delivery of any payment for
Notes to be purchased thereunder, if prior to such time (i)
trading in the Guarantor's Common Stock shall have been suspended
by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have
been suspended or limited or minimum prices shall have been
established on such Exchange, (ii) a banking moratorium shall
have been declared either by Federal or New York State
authorities, or (iii) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis
the effect of which on the financial markets or the United States
is such as to make it, in the reasonable judgment of the
Purchaser, impracticable to market such Notes.
10. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities
and other statements of the Company, the Guarantor or their
respective officers and of you set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of you or the Company
and the Guarantor or any of the officers, directors or
controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Notes. The provisions of
Sections 4(h) and 8 hereof shall survive the termination or
cancellation of this Agreement.
11. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to any of
you, will be mailed, delivered or telegraphed and confirmed to
such of you, at the address specified in Schedule II hereto; or,
if sent to the Company, will be mailed, delivered or telegraphed
and confirmed to it at 1113 Westchester Avenue, White Plains, New
York 10604, attention of the Chairman of the Board or President,
with a copy to the Guarantor at 1113 Westchester Avenue, White
Plains, New York 10604, attention of the Treasurer.
12. Successors. This Agreement will inure to the
benefit of and be binding upon the parties hereto and their
respective successors and the officers and directors and
controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
13. Applicable Law. This Agreement will be governed
by and construed in accordance with the laws of the State of
New York.
If the foregoing is in accordance with your
understanding of our agreement, please sign and return to us the
enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company,
the Guarantor and you.
Very truly yours,
NYNEX CAPITAL FUNDING COMPANY
By:
_________________________
President
NYNEX CORPORATION
By:
_________________________
Vice President Secretary
and Treasurer
The foregoing Agreement is
hereby confirmed and accepted
as of the date hereof.
LEHMAN BROTHERS INC.
By:
_________________________
Name:
Title:
J.P. MORGAN SECURITIES INC.
By:
_________________________
Name:
Title:
MORGAN STANLEY & CO. INCORPORATED
By:
_________________________
Name:
Title:
SALOMON BROTHERS INC
By:
_________________________
Name:
Title:
<PAGE>
<PAGE>
SCHEDULE I
Commissions:
The Company agrees to pay each Agent a commission equal
to the following percentage of the principal amount of each Note
sold on an agency basis by such Agent:
Term Commission Rate
From 9 months to
less than 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 .350%
From 4 years to
less than 5 years .450%
From 5 years to
less than 6 years .500%
From 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%
30 years or more To be negotiated at the time of
issuance.
Unless otherwise specified in the applicable Terms
Agreement, the discount or commission payable to a Purchaser
shall be determined on the basis of the commission schedule set
forth above.
<PAGE>
<PAGE>
SCHEDULE II
Address for Notice to you:
Notices to Lehman Brothers Inc. (including Lehman
Special Securities Inc.) shall be directed to it at 3 World
Financial Center, 12th Floor, New York, NY 10285-1200, Attention:
Medium-Term Note Department.
Notices to J.P. Morgan Securities Inc. shall be
directed to it at 60 Wall Street, Third Floor, New York, NY
10260-0060, Attention: Medium-Term Note Desk.
Notices to Morgan Stanley & Co. Incorporated shall be
directed to it at 1221 Avenue of the Americas, New York, NY
10020, Attention: Manager, Continuously Offered Products; with a
copy to Morgan Stanley & Co. Incorporated at 1251 Avenue of the
Americas, 28th Floor, New York, NY 10020, Attention: Peter
Cooper.
Notices to Salomon Brothers Inc shall be directed to it
at Seven World Trade Center, New York, NY 10048, Attention:
Medium-Term Note Department.
<PAGE>
EXHIBIT A
NYNEX CAPITAL FUNDING COMPANY
Medium-Term Notes, Series B, Administrative Procedures
March 3, 1994
The Medium-Term Notes, Series B, Due Nine Months or
More from Date of Issue (the "Notes") of NYNEX Capital Funding
Company (the "Company") are to be offered on a continuing basis.
Lehman Brothers, Lehman Brothers Inc. (including its affiliate
Lehman Special Securities Inc.), J.P. Morgan Securities Inc.,
Morgan Stanley & Co. Incorporated and Salomon Brothers Inc, as
agents (each an "Agent"), have agreed to solicit purchases of
Notes issued in fully registered form. The Agents will not be
obligated to purchase Notes for their own account. The Notes are
being sold pursuant to a Selling Agency Agreement among the
Company, NYNEX Corporation and the Agents dated the date hereof
(the "Agency Agreement"). The Notes will rank equally with all
other unsecured and unsubordinated debt of the Company and have
been registered with the Securities and Exchange Commission (the
"Commission"). The Notes will be issued under the Indenture
dated as of April 1, 1990 from the Company and NYNEX Corporation
to The Bank of New York, as trustee (hereinafter the "Trustee"
shall refer to The Bank of New York in each capacity other than
as agent for The Depository Trust Company), as amended by a First
Supplemental Indenture dated as of March 3, 1994 (as so amended,
the "Indenture"). The Notes will be unconditionally guaranteed
as to payment of principal, premium, if any, and interest by
NYNEX Corporation.
Each Note will be represented by either a Global
Security (as defined hereinafter) delivered to The Bank of New
York, as agent (in such capacity, "BoNY") for The Depository
Trust Company ("DTC"), and recorded in the book-entry system
maintained by DTC (a "Book-Entry Note") or a certificate
delivered to the holder thereof or a Person designated by such
holder (a "Certificated Note"). An owner of a Book-Entry Note
will not be entitled to receive a certificate representing such
Note.
The procedures to be followed during, and the specific
terms of, the solicitation of orders by the Agents and the sale
as a result thereof by the Company are explained below.
Administrative and record-keeping responsibilities will be
handled for the Company by its Treasury Department. The Company
will advise the Agents and the Trustee in writing of those
persons handling administrative responsibilities with whom the
Agents and the Trustee are to communicate regarding orders to
purchase Notes and the details of their delivery.
Administrative procedures and specific terms of the
offering are explained below. Book-Entry Notes will be issued in
accordance with the administrative procedures set forth in Part I
hereof, as adjusted in accordance with changes in DTC's operating
requirements, and Certificated Notes will be issued in accordance
with the administrative procedures set forth in Part II hereof.
Unless otherwise defined herein, terms defined in the Indenture
and the Notes shall be used herein as therein defined. Notes for
which interest is calculated on the basis of a fixed interest
rate, which may be zero, are referred to herein as "Fixed Rate
Notes," "Fixed Rate Book-Entry Notes" or "Fixed Rate Certificated
Notes." Notes for which amounts in respect of interest and
principal due thereon shall be payable over the life of the Notes
according to an amortization schedule are referred to herein as
"Amortizing Notes," "Amortizing Book-Entry Notes" or "Amortizing
Certificated Notes." Notes for which interest is calculated on
the basis of a floating interest rate are referred to herein as
"Floating Rate Notes", "Floating Rate Book-Entry Notes" or
"Floating Rate Certificated Notes." To the extent the procedures
set forth below conflict with the provisions of the Notes, the
Indenture, DTC's operating requirements or the Agency Agreement,
the relevant provisions of the Notes, the Indenture, DTC's
operating requirements and the Agency Agreement shall control.
PART I
Administrative Procedures for
Book-Entry Notes
In connection with the qualification of the Book-Entry
Notes for eligibility in the book-entry system maintained by DTC,
BoNY will perform the custodial functions and the Trustee will
perform the document control and administrative functions
described below, in accordance with its respective obligations
under a Letter of Representations from the Company and the
Trustee to DTC dated as of the date hereof and a Medium-Term Note
Certificate Agreement between the Trustee and DTC and its
obligations as a participant in DTC, including DTC's Same-Day
Funds Settlement system ("SDFS").
Issuance:
On any date of settlement (as defined
under "Settlement" below) for one or more
Book-Entry Notes, the Company will issue
a single global security in fully
registered form without coupons (a
"Global Security") representing up to
$150,000,000 principal amount of all such
Book-Entry Notes that have the same
original issue date, original issue
discount provisions, if any, Interest
Payment Dates, Regular Record Dates,
redemption provisions, if any, Stated
Maturity, and, in the case of Fixed Rate
Notes, interest rate and amortization
provisions, if any, or, in the case of
Floating Rate Notes, provisions relating to
interest (collectively, the "Terms"). Each
Global Security will be dated and issued as
of the date of its authentication by the
Trustee. Each Global Security will bear an
original issue date, which will be (i) with
respect to an original Global Security (or
any portion thereof), the original issue date
specified in such Global Security and (ii)
following a consolidation of Global
Securities, with respect to the Global
Security resulting from such consolidation,
the most recent Interest Payment Date to
which interest has been paid or duly provided
for on the predecessor Global Securities,
regardless of the date of authentication of
such resulting Global Security. No Global
Security will represent (i) both Fixed Rate
and Floating Rate Book-Entry Notes or (ii)
any Certificated Note.
Identification
Numbers:
The Company or the Trustee has arranged
with the CUSIP Service Bureau of
Standard & Poor's Corporation (the "CUSIP
Service Bureau") for the reservation of a
series of CUSIP numbers, which series
consists of approximately 900 CUSIP
numbers and relates to Global Securities
representing Book-Entry Notes and
book-entry medium-term notes issued by
the Company with other series
designations. The Trustee, the Company
and DTC have obtained from the CUSIP
Service Bureau a written list of such
reserved CUSIP numbers. The Company will
assign CUSIP numbers to Global Securities
as described below under Settlement
Procedure "B." DTC will notify the CUSIP
Service Bureau periodically of the CUSIP
numbers that the Company has assigned to
Global Securities. At any time when
fewer than 100 of the reserved CUSIP
numbers remain unassigned to Global
Securities, the Trustee will obtain a new
list of 900 CUSIP numbers for assignment
to Global Securities. Upon obtaining
such additional CUSIP numbers, the Trustee
shall deliver a list of such additional CUSIP
numbers to DTC.
Registration:
Global Securities will be issued only in
fully registered form without coupons. Each
Global Security will be registered in the
name of CEDE & CO., as nominee for DTC, on
the securities register for the Notes
maintained under the Indenture. The
beneficial owner of a Book-Entry Note (or one
or more indirect participants in DTC
designated by such owner) will designate one
or more participants in DTC (with respect to
such Book-Entry Note, the "Participants") to
act as agent or agents for such owner in
connection with the book-entry system
maintained by DTC, and DTC will record in
book-entry form, in accordance with
instructions provided by such Participants, a
credit balance with respect to such
beneficial owner in such Book-Entry Note in
the account of such Participants. The
ownership interest of such beneficial owner
(or such Participant) in such Book-Entry Note
will be recorded through the records of such
Participants or through the separate records
of such Participants and one or more indirect
participants in DTC.
Transfers:
Transfers of a Book-Entry Note will be
accomplished by book entries made by DTC and,
in turn, by Participants (and in certain
cases, one or more indirect participants in
DTC) acting on behalf of beneficial
transferors and transferees of such Note.
Exchanges:
The Trustee may deliver to DTC and the
CUSIP Service Bureau at any time a
written notice of consolidation (a copy
of which shall be attached to the
resulting Global Security described
below) specifying (i) the CUSIP numbers
of two or more Outstanding Global
Securities that represent (A) Fixed Rate
Book-Entry Notes having the same Terms
and for which interest has been paid to
the same date or (B) Floating Rate
Book-Entry Notes having the same Terms
and for which interest has been paid to
the same date, (ii) a date, occurring at
least thirty days after such written
notice is delivered and at least thirty
days before the next Interest Payment Date
for such Book-Entry Notes, on which such
Global Securities shall be exchanged for a
single replacement Global Security and (iii)
a new CUSIP number, obtained from the
Company, to be assigned to such replacement
Global Security. Upon receipt of such a
notice, DTC will send to its participants
(including the Trustee) a written
reorganization notice to the effect that such
exchange will occur on such date. Prior to
the specified exchange date, the Trustee will
deliver to the CUSIP Service Bureau a written
notice setting forth such exchange date and
such new CUSIP number and stating that, as of
such exchange date, the CUSIP numbers of the
Global Securities to be exchanged will no
longer be valid. On the specified exchange
date, the Trustee will exchange such Global
Securities for a single Global Security
bearing the new CUSIP number and the CUSIP
numbers of the exchanged Global Securities
will, in accordance with CUSIP Service Bureau
procedures, be canceled and not immediately
reassigned. Notwithstanding the foregoing,
if the Global Securities to be exchanged
exceed $150,000,000 in aggregate principal
amount, one Global Security will be
authenticated and issued to represent each
$150,000,000 of principal amount of the
exchanged Global Securities and an additional
Global Security will be authenticated and
issued to represent any remaining principal
amount of such Global Securities (see
"Denominations" below).
Maturities:
Each Book-Entry Note will mature on a date
not less than nine months after the
settlement date for such Note.
Denominations:
Book-Entry Notes will be issued in
principal amounts of $1,000 or any amount in
excess thereof that is an integral multiple
of $1,000. Global Securities will be
denominated in principal amounts not in
excess of $150,000,000. If one or more
Book-Entry Notes having an aggregate
principal amount in excess of $150,000,000
would, but for the preceding sentence, be
represented by a single Global Security, then
one Global Security will be authenticated and
issued to represent each $150,000,000
principal amount of such Book-Entry Note or
Notes and an additional Global Security will
be authenticated and issued to represent any
remaining principal amount of such Book-Entry
Note or Notes. In such a case, each of the
Global Securities representing such
Book-Entry Note or Notes shall be assigned
the same CUSIP number.
Interest:
General. Interest, if any, on each
Book-Entry Note will accrue from the original
issue date for the first interest period or
the last date to which interest has been
paid, if any, for each subsequent interest
period, on the Global Security representing
such Book-Entry Note, and will be calculated
and paid in the manner described in such
Book-Entry Note and in the Prospectus (as
defined in the Agency Agreement), as
supplemented by the applicable Pricing
Supplement. Unless otherwise specified
therein, interest payments on a Fixed Rate
Book-Entry Note shall be the amount of
interest accrued from, and including, the
Original Issue Date or the last date to which
interest has been paid to, but excluding, the
Interest Payment Date or date of maturity, as
the case may be; provided that, if an
Interest Payment Date or the maturity date of
a Fixed Rate Note that would otherwise fall
on a day that is not a Business Day is
postponed or changed, the interest payable on
such date shall accrue to, but exclude, the
date that would have been the Interest
Payment Date or maturity date had it been a
Business Day. Unless otherwise specified
therein, interest payments on a Floating Rate
Book-Entry Note (except a Floating Rate Note
on which interest is reset daily or weekly)
shall be the amount of interest accrued from,
and including, the Original Issue Date or the
last date to which interest has been paid to,
but excluding, the Interest Payment Date or
date of maturity, as the case may be;
provided that, if the maturity date of such a
Floating Rate Book-Entry Note that would
otherwise fall on a day that is not a
Business Day is postponed or changed, the
interest payable on such date shall accrue
to, but exclude, the date that would have
been the maturity date had it been a Business
Day. In the case of a Floating Rate Book-
Entry Note on which interest is reset daily
or weekly, interest payments shall be, unless
otherwise specified therein, the amount of
interest accrued from and including the
Original Issue Date or from and including the
last date to which interest has been paid, as
the case may be, to, and including, the
Regular Record Date immediately preceding
such Interest Payment Date, except that at
maturity, the interest payable shall include
interest accrued to, but excluding, the
maturity date. Interest payable at the
Stated Maturity of a Book-Entry Note or upon
earlier redemption or repayment will be
payable to the Person to whom the principal
of such Note is payable. Standard & Poor's
Corporation will use the information received
in the pending deposit message described
under Settlement Procedure "C" below in order
to include the amount of any interest payable
and certain other information regarding the
related Global Security in the appropriate
(daily or weekly) bond report published by
Standard & Poor's Corporation.
Regular Record Dates. Unless otherwise
specified in the Note, the Regular Record
Date with respect to any Interest Payment
Date shall be the date fifteen calendar days
immediately preceding such Interest Payment
Date.
Interest Payment Dates on Fixed Rate
Book-Entry Notes. Unless otherwise specified
in the Note, interest payments on Fixed Rate
Book-Entry Notes (other than Amortizing Book-
Entry Notes) will be made semiannually on
March 15 and September 15 of each year and at
maturity. Principal and interest payments on
Amortizing Book-Entry Notes will be made
semiannually on March 15 and September 15 of
each year or quarterly on March 15, June 15,
September 15 and December 15 of each year and
at maturity. Notwithstanding the foregoing,
(i) if an Interest Payment Date for a Fixed
Rate Book-Entry Note would otherwise be a day
that is not a Business Day with respect to
such Fixed Rate Book-Entry Note, such
Interest Payment Date will be postponed to
the next day that is a Business Day with
respect to such Fixed Rate Book-Entry Note;
and (ii) in the case of a Fixed Rate
Book-Entry Note issued between a Regular
Record Date and an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Interest Payment Dates on Floating Rate
Book-Entry Notes. Except as provided below,
unless otherwise specified in the Note,
interest on a Floating Rate Book-Entry Note
shall be payable: (i) in the case of a Note
with a daily or weekly Interest Reset Date,
on the third Wednesday of March, June,
September and December, (ii) in the case of a
Note with a monthly Interest Reset Date, on
the third Wednesday of each month or on the
third Wednesday of March, June, September and
December, as specified in the Note, (iii) in
the case of a Note with a quarterly Interest
Reset Date, on the third Wednesday of March,
June, September and December, (iv) in the
case of a Note with a semiannual Interest
Reset Date, on the third Wednesday of the two
months specified in the Note, (v) in the case
of a Note with an annual Interest Reset Date,
on the third Wednesday of the month specified
in the Note; and (vi) in each case, at
maturity. If any Interest Payment Date for
any Floating Rate Book-Entry Note would
otherwise be a day that is not a Business
Day, such Interest Payment Date shall be
postponed to the next day that is a Business
Day, provided that in the case of a LIBOR
Note, if such Business Day is in the next
succeeding calendar month, such Interest
Payment Date shall be the immediately
preceding Business Day. In the case of a
Floating Rate Book-Entry Note issued between
a Regular Record Date and an Interest Payment
Date, the first interest payment will be made
on the Interest Payment Date following the
next succeeding Regular Record Date.
Notice of Interest Payment and Regular Record
Dates. On the first Business Day of January,
April, July and October of each year, the
Trustee will deliver to the Company and DTC a
written list of Regular Record Dates and
Interest Payment Dates that will occur with
respect to Book-Entry Notes during the
six-month period beginning on such first
Business Day. Promptly after each Interest
Determination Date for Floating Rate
Book-Entry Notes, The Bank of New York, in
such capacity as Calculation Agent, will
notify Standard & Poor's Corporation of the
interest rates determined on such Interest
Determination Date.
Calculation of
Interest:
Fixed Rate Book-Entry Notes. Interest on
Fixed Rate Book-Entry Notes (including
interest for partial periods) will be
calculated on the basis of a 360-day year
of twelve 30-day months.
Floating Rate Book-Entry Notes. Unless
otherwise specified in the Note, with respect
to a Floating Rate Book-Entry Note, accrued
interest shall be calculated by multiplying
the principal amount of such Floating Rate
Book-Entry Note (or, in the case of a
Currency Indexed Note, unless otherwise
specified in an Annex, the Face Amount (as
defined below) of such Currency Indexed Note)
by an accrued interest factor. Such accrued
interest factor shall be computed by adding
the interest factors calculated for each day
in the Interest Reset Period or from the last
date from which accrued interest is being
calculated. Unless otherwise specified in
the Note, the interest factor for each such
day is computed by dividing the interest rate
applicable to such day by 360, in the case of
a Commercial Paper Rate Note, CD Rate Note,
Federal Funds Rate Note, LIBOR Note and Prime
Rate Note, or by the actual number of days in
the year, in the case of a Treasury Rate
Note.
Payments of
Principal and
Interest:
Payment of Interest Only. Promptly after
each Regular Record Date, the Trustee
will deliver to the Company and DTC a
written notice setting forth, by CUSIP
number, the amount of interest to be paid
on each Global Security on the following
Interest Payment Date (other than an
Interest Payment Date coinciding with
Stated Maturity) and the total of such
amounts. DTC will confirm the amount
payable on each Global Security on such
Interest Payment Date by reference to the
appropriate (daily or weekly) bond
reports published by Standard & Poor's
Corporation. The Company will pay to
the Trustee, as paying agent, the total
amount of interest due on such Interest
Payment Date (other than at Stated
Maturity), and the Trustee will pay such
amount to DTC, at the times and in the
manner set forth below under "Manner of
Payment."
Payments at Stated Maturity. On or about the
first Business Day of each month, the Trustee
will deliver to the Company and DTC a written
list of principal, interest and premium, if
any, to be paid on each Global Security
maturing (on Stated Maturity or Redemption
Date or otherwise) in the following month.
The Trustee, the Company and DTC will confirm
the amounts of such principal, interest and
premium, if any, payments with respect to
each such Global Security on or about the
fifth Business Day preceding the Stated
Maturity, Redemption Date or other maturity
date, as the case may be, of such Global
Security. On or before Stated Maturity,
Redemption Date or other maturity date, as
the case may be, the Company will pay to the
Trustee, as paying agent, the principal
amount of such Global Security, together with
interest and premium, if any, due at such
Stated Maturity, Redemption Date or other
maturity date, as the case may be. The
Trustee will pay such amount to DTC at
the times and in the manner set forth below
under "Manner of Payment." Promptly after
payment to DTC of the principal, interest and
premium, if any, due at the Stated Maturity,
Redemption Date or other maturity date, as
the case may be, of such Global Security, the
Trustee will cancel such Global Security in
accordance with the Indenture and so advise
the Company. On the first Business Day of
each month, BoNY will deliver to the Trustee
a written statement indicating the total
principal amount of Outstanding Global
Securities as of the immediately preceding
Business Day.
Manner of Payment. The total amount of
principal, interest and premium, if any, due
on Global Securities on any Interest Payment
Date or at the Stated Maturity, Redemption
Date or other maturity date, as the case may
be, shall be paid by the Company to the
Trustee in immediately available funds no
later than 9:30 A.M. (New York City time) on
such date. The Company will make such
payment on such Global Securities by
instructing the Trustee to withdraw funds
from an account maintained by the Company
with the Trustee or by wire transfer to the
Trustee. The Company will confirm any such
instructions in writing to the Trustee.
Prior to 10 A.M. (New York City time) on the
day of the Stated Maturity, Redemption Date
or other maturity date, as the case may be,
or as soon as possible thereafter, the
Trustee will pay by separate wire transfer
(using Fedwire message entry instructions in
a form previously specified by DTC) to an
account at the Federal Reserve Bank of
New York previously specified by DTC, in
funds available for immediate use by DTC,
each payment of principal (together with
interest thereon and the premium, if any) due
on a Global Security on such date. On each
Interest Payment Date (other than at the
Stated Maturity, Redemption Date or other
maturity date, as the case may be), interest
payments shall be made to DTC, in funds
available for immediate use by DTC, in
accordance with existing arrangements between
the Trustee and DTC. On each such date, DTC
will pay, in accordance with its SDFS
operating procedures then in effect, such
amounts in funds available for immediate use
to the respective Participants in whose names
the Book-Entry Notes represented by such
Global Securities are recorded in the
book-entry system maintained by DTC. Neither
the Company (as issuer or as paying agent)
nor the Trustee shall have any direct
responsibility or liability for the payment
by DTC to such Participants of the principal
of and interest on the Book-Entry Notes.
Withholding Taxes. The amount of any taxes
required under applicable law to be withheld
from any interest payment on a Book-Entry
Note will be determined and withheld by the
Participant, indirect participant in DTC or
other Person responsible for forwarding
payments and materials directly to the
beneficial owner of such Note.
Procedure for
Rate Setting
and Posting:
The Company and the Agents will discuss from
time to time the aggregate principal amount
of, the issuance price of, and the interest
rates to be borne by, Book-Entry Notes that
may be sold as a result of the solicitation
of orders by the Agents. If the Company
decides to set prices of, and rates borne by,
any Book-Entry Notes in respect of which the
Agents are to solicit orders (the setting of
such prices and rates to be referred to
herein as "posting") or if the Company
decides to change prices or rates previously
posted by it, it will promptly advise the
Agents of the prices and rates to be posted.
Acceptance and
Rejection of
Orders:
Unless otherwise instructed by the Company,
each Agent will advise the Company promptly
by telephone of all orders to purchase
Book-Entry Notes received by such Agent,
other than those rejected by it in whole or
in part in the reasonable exercise of its
discretion. Unless otherwise agreed by the
Company and the Agents, the Company has the
right to accept orders to purchase Book-Entry
Notes and may reject any such orders in whole
or in part.
Preparation of
Pricing
Supplement:
If any order to purchase a Book-Entry
Note is accepted by or on behalf of
the Company, the Company will prepare a
pricing supplement (a "Pricing Supplement")
reflecting the terms of such Book-Entry Note
and will arrange to have such Pricing
Supplement filed with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Act and will supply at
least ten copies thereof (and additional
copies if requested) to the Agent which
presented the order (the "Presenting Agent").
The Presenting Agent will cause a Prospectus
and Pricing Supplement to be delivered to the
purchaser of such Book-Entry Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements
(other than those retained for files) will be
destroyed.
Suspension of
Solicitation;
Amendment or
Supplement:
Subject to the Company's representations,
warranties and covenants contained in the
Agency Agreement, the Company may instruct
the Agents to suspend at any time, for any
period of time or permanently, the
solicitation of orders to purchase Book-Entry
Notes. Upon receipt of at least twelve hours
prior notice from the Company, the Agents
will suspend solicitation until such time as
the Company has advised them that such
solicitation may be resumed. Notwithstanding
the foregoing, if, at any time when a
prospectus relating to the Notes is required
to be delivered under the Act, any event
occurs as a result of which the Prospectus as
then supplemented would include any untrue
statement of a material fact or omit to state
any material fact necessary to make the
statements therein, in the light of the
circumstances under which they were made, not
misleading, or if it shall be necessary to
amend the Registration Statement or to
supplement the Prospectus to comply with the
Act or the Exchange Act or the respective
rules thereunder, the Company promptly will
instruct the Agents to suspend the
solicitation of orders to purchase Book-Entry
Notes and the Agents will immediately suspend
solicitation and cease using the Prospectus
as then supplemented.
In the event that at the time the Company
suspends solicitation of purchases there
shall be any orders outstanding for
settlement, the Company will promptly advise
the Agents, the Trustee and BoNY whether such
orders may be settled and whether copies of
the Prospectus as in effect at the time of
the suspension, together with the appropriate
Pricing Supplement, may be delivered in
connection with the settlement of such
orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event
that the Company determines that such orders
may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement
the Registration Statement (as defined in the
Agency Agreement) or the Prospectus, it will
promptly advise the Agents and furnish the
Agents with the proposed amendment or
supplement and with such certificates and
opinions as are required, all to the extent
required by and in accordance with the terms
of the Agency Agreement. Subject to the
provisions of the Agency Agreement, the
Company may file with the Commission any such
supplement to the Prospectus relating to the
Notes. The Company will provide the Agents,
the Trustee and BoNY with copies of any such
supplement, and confirm to the Agents that
such supplement has been filed with the
Commission pursuant to the applicable
paragraph of Rule 424(b).
Procedures For
Rate Changes:
When the Company has determined to change the
interest rates of Book-Entry Notes being
offered, it will promptly advise the Agents
and the Agents will forthwith suspend
solicitation of orders. The Agents will
telephone the Company with recommendations as
to the changed interest rates. At such time
as the Company has advised the Agents of the
new interest rates, the Agents may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded.
Within two Business Days after any sale of
Book-Entry Notes, the Company will file with
the Securities and Exchange Commission a
Pricing Supplement to the Prospectus relating
to such Book-Entry Notes that reflects the
applicable interest rates and other terms and
will deliver copies of such Pricing
Supplement to the Agents.
Delivery of
Prospectus:
A copy of the Prospectus and a Pricing
Supplement relating to a Book-Entry Note
must accompany or precede the earliest of
any written offer of such Book-Entry
Note, confirmation of the purchase of
such Book-Entry Note and payment for such
Book-Entry Note by its purchaser. If
notice of a change in the terms of the
Book-Entry Notes is received by the
Agents between the time an order for a
Book-Entry Note is placed and the time
written confirmation thereof is sent by
the Presenting Agent to a customer or his
agent, such confirmation shall be
accompanied by a Prospectus and Pricing
Supplement setting forth the terms in
effect when the order was placed. Subject to
"Suspension of Solicitation;
Amendment or Supplement" above, the
Presenting Agent will deliver a
Prospectus and Pricing Supplement as
herein described with respect to each
Book-Entry Note sold by it. The Company
will make such delivery if such
Book-Entry Note is sold directly by the
Company to a purchaser (other than an
Agent).
Confirmation:
For each order to purchase a Book-Entry Note
solicited by any Agent and accepted by or on
behalf of the Company, the Presenting Agent
will issue a confirmation to the purchaser,
with a copy to the Company, setting forth the
details set forth above and delivery and
payment instructions.
Settlement:
The receipt by the Company of immediately
available funds in payment for a Book-Entry
Note and the authentication and issuance of
the Global Security representing such
Book-Entry Note shall constitute "settlement"
with respect to such Book-Entry Note. All
orders accepted by the Company will be
settled on the fifth Business Day following
the date of sale of such Book-Entry Note
pursuant to the timetable for settlement set
forth below unless the Company and the
purchaser agree to settlement on another day
which shall be no earlier than the next
Business Day following the date of sale.
Settlement
Procedures:
Settlement Procedures with regard to each
Book-Entry Note sold by the Company through
any Agent, as agent, shall be as follows:
A. The Presenting Agent will advise the
Company by telephone of the following
settlement information:
1. Principal amount.
2. Stated Maturity.
3. Final Maturity.
4. Original Issue Date.
5. Interest Accrual Date.
6. In the case of a Fixed Rate
Book-Entry Note, the interest rate
and amortization provisions, if
any, or, in the case of a Floating
Rate Book-Entry Note, whether such
Note is a Regular Floating Rate
Note, a Floating Rate/Fixed Rate
Note or an Inverse Floating Rate
Note, the Base Rate, Fixed Interest
Rate, if any, Fixed Rate
Commencement Date, if any, Initial
Interest Rate (if known at such
time), Index Maturity, Interest
Reset Period, Interest Reset Dates,
Spread and/or Spread Multiplier (if
any), Minimum Interest Rate (if
any) and Maximum Interest Rate (if
any), and in the case of an Indexed
Note (as defined in the
Prospectus), the specific terms
thereof, and in the case of a Dual
Currency Note (as defined in the
Prospectus), the specific terms
thereof.
7. Interest Payment Dates and the
period for which interest accrues.
8. Specified Currency and whether the
option to elect payment in a
Specified Currency applies and if
the Specified Currency is a Foreign
Currency, the authorized
denominations.
9. Repayment provisions, if any.
10. Reset provisions, if any.
11. Extension provisions, if any.
12. Redemption provisions, if any.
13. Settlement date.
14. Issue Price.
15. Presenting Agent's commission,
determined as provided in Section 2
of the Agency Agreement.
16. Whether such Book-Entry Note is
issued at an original issue
discount and, if so, the total
amount of OID, the yield to
maturity and the initial accrual
period OID.
B. The Company will assign a CUSIP number
to the Global Security representing such
Book-Entry Note and then advise the
Trustee by telephone (confirmed in
writing at any time on the same date) or
electronic transmission of the
information set forth in Settlement
Procedure "A" above, such CUSIP number,
the name of the Presenting Agent and any
other information which is required to
be added to the Note. The Company will
also notify the Presenting Agent by
telephone of such CUSIP number as soon
as practicable.
C. The Trustee will enter a pending deposit
message through DTC's Participant
Terminal System providing the following
settlement information to DTC (which
shall route such information to Standard
& Poor's Corporation, Interactive Data
Corporation (which is DTC's pricing
vendor) and the Presenting Agent):
1. The information set forth in
Settlement Procedure "A".
2. Identification as a Fixed Rate
Book-Entry Note or a Floating Rate
Book-Entry Note.
3. Initial Interest Payment Date for
such Book-Entry Note, number of
days by which such date succeeds
the related Regular Record Date and
amount of interest payable on such
Interest Payment Date.
4. The period for which interest
accrues.
5. CUSIP number of the Global Security
representing such Book-Entry Note.
6. Whether such Global Security will
represent any other Book-Entry Note
(to the extent known at such time).
7. The numbers of participant accounts
maintained by DTC on behalf of the
Agents and the Trustee.
D. To the extent the Company has not
already done so, the Company will
deliver to the Trustee an executed
Global Security in a form that has been
approved by the Company, the Agents and
the Trustee.
E. The Trustee will complete such
Book-Entry Note, stamp the appropriate
legend, as instructed by DTC, if not
already set forth thereon, and
authenticate the Global Security
representing such Book-Entry Note.
F. DTC will credit such Book-Entry Note to
the Trustee's participant account at
DTC.
G. The Trustee will enter an SDFS deliver
order through DTC's Participant Terminal
System instructing DTC to (i) debit such
Book-Entry Note to the Trustee's
participant account and credit such
Book-Entry Note to the Presenting
Agent's participant account and (ii)
debit the Presenting Agent's settlement
account and credit the Trustee's
settlement account for an amount equal
to the price of such Book-Entry Note
less the Presenting Agent's commission.
The entry of such a deliver order shall
constitute a representation and warranty
by the Trustee to DTC that (i) the
Global Security representing such
Book-Entry Note has been issued and
authenticated and (ii) BoNY is holding
such Global Security pursuant to the
Medium-Term Note Certificate Agreement
between BoNY and DTC.
H. The Presenting Agent will enter an SDFS
deliver order through DTC's Participant
Terminal System instructing DTC (i) to
debit such Book-Entry Note to the
Presenting Agent's participant account
and credit such Book-Entry Note to the
participant accounts of the Participants
with respect to such Book-Entry Note and
(ii) to debit the settlement accounts of
such Participants and credit the
settlement account of the Presenting
Agent for an amount equal to the price
of such Book-Entry Note.
I. Transfers of funds in accordance with
SDFS deliver orders described in
Settlement Procedures "G" and "H" will
be settled in accordance with SDFS
operating procedures in effect on the
settlement date.
J. The Trustee will, upon receipt of funds
from the Agent in accordance with
Settlement Procedure "G", wire transfer
to the account of the Company maintained
at The Chase Manhattan Bank, N.A.,
New York, New York, funds available for
immediate use in the amount transferred
to the Trustee in accordance with
Settlement Procedure "G".
K. The Presenting Agent will confirm the
purchase of such Book-Entry Note to the
purchaser either by transmitting to the
Participants with respect to such
Book-Entry Note a confirmation order or
orders through DTC's institutional
delivery system or by mailing a written
confirmation to such purchaser.
Settlement
Procedures
Timetable:
For orders of Book-Entry Notes solicited
by any Agent and accepted by the Company
for settlement on the first Business Day
after the sale date, Settlement
Procedures "A" through "K" set forth
above shall be completed as soon as
possible but not later than the
respective times (New York City time) set
forth below:
Settlement
Procedure Time
A 11:00 A.M. on the sale date
B 12:00 Noon on the sale date
C 2:00 P.M. on the sale date
D 3:00 P.M. on the day before
settlement
E 9:00 A.M. on settlement date
F 10:00 A.M. on settlement date
G-H 2:00 P.M. on settlement date
I 4:45 P.M. on settlement date
J-K 5:00 P.M. on settlement date
If a sale is to be settled more than one
Business Day after the sale date, Settlement
Procedures "A", "B" and "C" shall be
completed as soon as practicable but no later
than 11:00 A.M. and 12:00 Noon on the first
Business Day after the sale date and no later
than 2:00 P.M. on the Business Day before the
settlement; date, respectively. If the
initial interest rate for a Floating Rate
Book-Entry Note has not been determined at
the time that Settlement Procedure "A" is
completed, Settlement Procedures "B" and "C"
shall be completed as soon as such rate has
been determined but no later than 12:00 Noon
and 2:00 P.M., respectively, on the Business
Day before the settlement date. Settlement
Procedure "I" is subject to extension in
accordance with any extension of Fedwire
closing deadlines and in the other events
specified in SDFS operating procedures in
effect on the settlement date.
If settlement of a Book-Entry Note is
rescheduled or canceled, the Trustee will
deliver to DTC, through DTC's Participant
Terminal System, a cancellation message to
such effect by no later than 2:00 P.M. on the
Business Day immediately preceding the
scheduled settlement date.
Failure to
Settle:
If the Trustee fails to enter an SDFS deliver
order with respect to a Book-Entry Note
pursuant to Settlement Procedure "G", the
Trustee may deliver to DTC, through DTC's
Participant Terminal System, as soon as
practicable, a withdrawal message instructing
DTC to debit such Book-Entry Note to the
Trustee's participant account. DTC will
process the withdrawal message, provided that
the Trustee's participant account contains a
principal amount of the Global Security
representing such Book-Entry Note that is at
least equal to the principal amount to be
debited. If a withdrawal message is
processed with respect to all the Book-Entry
Notes represented by a Global Security, the
Trustee will cancel such Global Security in
accordance with the Indenture, will so advise
the Company and will make appropriate entries
in its records. The CUSIP number assigned to
such Global Security shall, in accordance
with CUSIP Service Bureau procedures, be
canceled and not immediately reassigned. If
a withdrawal message is processed with
respect to one or more, but not all, of the
Book-Entry Notes represented by a Global
Security, the Trustee will exchange such
Book-Entry Note for two Global Securities,
one of which shall represent such Book-Entry
Notes with respect to which the withdrawal
message is processed and shall be canceled
immediately after issuance and the other of
which shall represent the other Book-Entry
Notes previously represented by the
surrendered Global Security and shall bear
the CUSIP number of the surrendered Global
Security.
If the purchase price for any Book-Entry Note
is not timely paid to the Participants with
respect to such Note by the beneficial
purchaser thereof (or a Person, including an
indirect participant in DTC, acting on behalf
of such purchaser), such Participants and, in
turn, the Presenting Agent may enter SDFS
deliver orders through DTC's Participant
Terminal System reversing the orders entered
pursuant to Settlement Procedures "H" and
"G", respectively. Thereafter, the Trustee
will deliver the withdrawal message and take
the related actions described in the
preceding paragraph. If such failure shall
have occurred for any reason other than a
default by the Presenting Agent in the
performance of its obligations hereunder and
under the Agency Agreement, then the Company
will reimburse the Presenting Agent or the
Trustee, as applicable, on an equitable basis
for the loss of the use of the funds during
the period when they were credited to the
account of the Company.
Notwithstanding the foregoing, upon any
failure to settle with respect to a
Book-Entry Note, DTC may take any actions
in accordance with its SDFS operating
procedures then in effect. In the event
of a failure to settle with respect to
one or more, but not all, of the
Book-Entry Notes to have been represented
by a Global Security, the Trustee will
provide, in accordance with Settlement
Procedure "E", for the authentication and
issuance of a Global Security
representing the other Book-Entry Notes
to have been represented by such Global
Security and will make appropriate
entries in its records.
Trustee Not to
Risk Funds:
Nothing herein shall be deemed to require
the Trustee to risk or expend its own funds
in connection with any payment to the
Company, DTC, the Agents or any purchaser, it
being understood by all parties that payments
made by the Trustee to the Company, DTC, the
Agents or any purchaser shall be made only to
the extent that funds are provided to the
Trustee for such purpose.
Authenticity of
Signatures:
Upon the reasonable request of the Agents,
the Company will cause the Trustee to furnish
the Agents from time to time with the
specimen signatures of each of the Trustee's
officers, employees or agents who has been
authorized by the Trustee to authenticate
Book-Entry Notes, but no Agent will have any
obligation or liability to the Company or the
Trustee in respect of the authenticity of the
signature of any officer, employee or agent
of the Company or the Trustee on any
Book-Entry Note.
Payment of
Expenses:
Each Agent shall forward to the Company,
on a monthly basis, a statement of the
out-of-pocket expenses incurred by such
Agent during that month that are
reimbursable to it pursuant to the terms
of the Agency Agreement. The Company
will remit payment to the Agents
currently on a monthly basis.
Advertising
Costs:
The Company will determine with the
Agents the amount of advertising that may
be appropriate in soliciting offers to
purchase the Book-Entry Notes. Advertising
expenses will be paid by the
Company.
Periodic
Statements from
Trustee:
Monthly, the Trustee will send to the Company
a statement setting forth the principal
amount of Book-Entry Notes Outstanding as of
that date and setting forth a brief
description of any sales of Book-Entry Notes
which the Company has advised the Trustee but
which have not yet been settled.
PART II
Administrative Procedures for Certificated Notes
The Trustee will serve as registrar and transfer
agent in connection with the Certificated Notes.
Issuance:
Each Certificated Note will be dated and
issued as of the date of its
authentication by the Trustee. Each
Certificated Note will bear an Original
Issue Date, which will be (i) with
respect to an original Certificated Note
(or any portion thereof), its original
issuance date (which will be the
settlement date) and (ii) with respect to
any Certificated Note (or portion
thereof) issued subsequently upon
transfer or exchange of a Certificated
Note or in lieu of a destroyed, lost or
stolen Certificated Note, the Original
Issue Date of the predecessor
Certificated Note, regardless of the date
of authentication of such subsequently
issued Certificated Note.
Registration:
Certificated Notes will be issued only in
fully registered form without coupons.
Transfers
and/or
Exchanges:
A Certificated Note may be presented for
transfer or exchange at the principal
corporate trust office in The City of
New York of the Trustee. Certificated Notes
will be exchangeable for other Certificated
Notes having identical terms but different
authorized denominations without service
charge. Certificated Notes will not be
exchangeable for Book-Entry Notes.
Maturities:
Each Certificated Note will mature on a date
not less than nine months after the
settlement date for such Note.
Denominations:
The denomination of any Certificated Note
denominated in U.S. dollars will be a minimum
of $1,000 or any amount in excess thereof
that is an integral multiple of $1,000. The
authorized denominations of Certificated
Notes denominated in a Foreign Currency will
be specified pursuant to "Settlement
Procedures" below.
Interest:
General. Interest, if any, on each
Certificated Note will accrue from the
original issue date for the first
interest period or the last date to which
interest has been paid, if any, for each
subsequent interest period, and will be
calculated and paid in the manner
described in such Note and in the
Prospectus, as supplemented by the
applicable Pricing Supplement. Unless
otherwise specified therein, interest
payments on a Fixed Rate Certificated Note
shall be the amount of interest accrued from,
and including, the Original Issue Date or the
last date to which interest has been paid to,
but excluding, the Interest Payment date or
date of maturity, as the case may be;
provided that, if an Interest Payment Date or
the maturity date of a Fixed Rate Note that
would otherwise fall on a day that is not a
Business day is postponed or changed, the
interest payable on such date shall accrue
to, but exclude, the date that would have
been the Interest Payment Date or maturity
date had it been a Business Day. Unless
otherwise specified therein, interest
payments on a Floating Rate Certificated Note
(except a Floating Rate Note on which
interest is reset daily or weekly) shall be
the amount of interest accrued from, and
including, the Original Issue Date or the
last date to which interest has been paid to,
but excluding, the Interest Payment Date or
date of maturity, as the case may be;
provided that, if the maturity date of such a
Floating Rate Certificated Note that would
otherwise fall on a day that is not a
Business Day is postponed or changed, the
interest payable on such date shall accrue
to, but exclude, the date that would have
been the maturity date had it been a Business
Day. In the case of a Floating Rate
Certificated Note on which interest is reset
daily or weekly, interest payments shall be,
unless otherwise specified therein, the
amount of interest accrued from and including
the Original Issue Date or from and including
the last date to which interest has been
paid, as the case may be, to, and including,
the Regular Record Date immediately preceding
such Interest Payment Date, except that at
maturity, the interest payable shall include
interest accrued to, but excluding, the
maturity date. Interest payable at the
Stated Maturity of a Certificated Note or
upon earlier redemption or repayment will be
payable to the Person to whom the principal
of such Note is payable.
Regular Record Dates. Unless otherwise
specified in the Note, the Regular Record
Dates with respect to any Interest Payment
Date shall be the date fifteen calendar days
immediately preceding such Interest Payment
Date.
Interest Payment Dates on Fixed Rate
Certificated Notes. Unless otherwise
specified in the Note, interest payments on
Fixed Rate Certificated Notes (other than
Amortizing Certificated Notes) will be made
semiannually on March 15 and September 15 of
each year and at maturity. Principal and
interest payments on Amortizing Certificated
Notes will be made semiannually on March 15
and September 15 of each year or quarterly on
March 15, June 15, September 15 and December
15 of each year and at maturity.
Notwithstanding the foregoing, (i) if an
Interest Payment Date for a Fixed Rate
Certificated Note would otherwise be a day
that is not a Business Day with respect to
such Fixed Rate Certificated Note, such
Interest Payment Date will be postponed to
the next day that is a Business Day with
respect to such Fixed Rate Certificated Note;
and (ii) in the case of a Fixed Rate
Certificated Note issued between a Regular
Record Date and an Interest Payment Date, the
first interest payment will be made on the
Interest Payment Date following the next
succeeding Regular Record Date.
Interest Payment Dates on Floating Rate
Certificated Notes. Except as provided
below, unless otherwise specified in the
Note, interest on a Floating Rate
Certificated Note shall be payable: (i) in
the case of a Note with a daily or weekly
Interest Reset Date, on the third Wednesday
of March, June, September and December, (ii)
in the case of a Note with a monthly Interest
Reset Date, on the third Wednesday of each
month or on the third Wednesday of March,
June, September and December, as specified in
the Note, (iii) in the case of a Note with a
quarterly Interest Reset Date, on the third
Wednesday of March, June, September and
December, (iv) in the case of a Note with a
semiannual Interest Reset Date, on the third
Wednesday of the two months specified in the
Note, (v) in the case of a Note with an
annual Interest Reset Date, on the third
Wednesday of the month specified in the Note;
and (vi) in each case, at maturity. If any
Interest Payment Date for any Floating Rate
Certificated Note would otherwise be a day
that is not a Business Day, such Interest
Payment Date shall be postponed to the next
day that is a Business Day, provided that in
the case of a LIBOR Note, if such Business
Day is in the next succeeding calendar month,
such Interest Payment Date shall be the
immediately preceding Business Day. In the
case of a Floating Rate Certificated Note
issued between a Regular Record Date and an
Interest Payment Date, the first interest
payment will be made on the Interest Payment
Date following the next succeeding Regular
Record Date.
Calculation of
Interest:
Fixed-Rate Certificated Note.
Interest on Fixed Rate Certificated Notes
(including interest for partial periods)
will be calculated on the basis of a
360-day year of twelve 30-day months.
Floating Rate Certificated Notes.
Unless otherwise specified in the Note, with
respect to a Floating Rate Certificated Note,
accrued interest shall be calculated by
multiplying the principal amount of such
Floating Rate Certificated Note (or, in the
case of a Currency Indexed Note, unless
otherwise specified in an Annex, the Face
Amount (as defined below) of such Currency
Indexed Note) by an accrued interest factor.
Such accrued interest factor shall be
computed by adding the interest factors
calculated for each day in the Interest Reset
Period or from the last date from which
accrued interest is being calculated. Unless
otherwise specified in the Note, the interest
factor for each such day is computed by
dividing the interest rate applicable to such
day by 360, in the case of a Commercial Paper
Rate Note, CD Rate Note, Federal Funds Rate
Note, LIBOR Note and Prime Rate Note, or by
the actual number of days in the year, in the
case of a Treasury Rate Note.
Payments of
Principal and
Interest:
The Trustee will pay the principal amount of
each Certificated Note at Stated Maturity
upon presentation of such Certificated Note
to the Trustee. Such payment, together with
payment of interest due at Stated Maturity of
such Certificated Note, will be made in funds
available for immediate use by the
Trustee and in turn by the holder of such
Certificated Note. Certificated Notes
presented to the Trustee at Stated
Maturity for payment will be canceled by
the Trustee in accordance with the
Indenture. All interest payments on a
Certificated Note (other than interest
due at Stated Maturity) will be made by
check drawn on (or another Person
appointed by) the Trustee and mailed by
the Trustee to the Person entitled
thereto as provided in such Note and the
Indenture; provided, however, that the
holder of $10,000,000 (or the equivalent
thereof in a Foreign Currency) or more of
Certificated Notes of the same series with
similar tenor and terms will be entitled to
receive payment by wire transfer in U.S.
dollars, provided such holder furnishes the
Trustee with appropriate wire transfer
instructions prior to each Regular Record
Date. Following each Regular Record Date and
Special Record Date, the Trustee will furnish
the Company with a list of interest payments
to be made on the following Interest Payment
Date for each Certificated Note and in total
for all Certificated Notes. Interest at
Stated Maturity will be payable to the Person
to whom the payment of principal is payable.
The Trustee will provide monthly to the
Company lists of principal and interest, to
the extent ascertainable, to be paid on
Certificated Notes maturing (on Stated
Maturity or Redemption Date or otherwise)
in the next month.
The Trustee will be responsible for
withholding taxes on interest paid on
Certificated Notes as required by applicable
law.
Procedure for
Rate Setting
and Posting:
The Company and the Agents will discuss from
time to time the aggregate principal amount
of, the issuance price of, and the interest
rates to be borne by, Notes that may be sold
as a result of the solicitation of orders by
the Agents. If the Company decides to set
prices of, and rates borne by, any Notes in
respect of which the Agents are to solicit
orders (the setting of such prices and rates
to be referred to herein as "posting") or if
the Company decides to change prices or rates
previously posted by it, it will promptly
advise the Agents of the prices and rates to
be posted.
Acceptance and
Rejection of
Orders:
Unless otherwise instructed by the
Company, each Agent will advise the
Company promptly by telephone of all
orders to purchase Certificated Notes
received by such Agent, other than those
rejected by it in whole or in part in the
reasonable exercise of its discretion.
Unless otherwise agreed by the Company
and the Agents, the Company has the sole
right to accept orders to purchase
Certificated Notes and may reject any such
orders in whole or in part.
Preparation of
Pricing
Supplement:
If any order to purchase a Certificated
Note is accepted by or on behalf of the
Company, the Company will prepare a pricing
supplement (a "Pricing Supplement")
reflecting the terms of such Certificated
Note and will arrange to have such Pricing
Supplement filed with the Commission in
accordance with the applicable paragraph of
Rule 424(b) under the Act and will supply at
least ten copies thereof (and additional
copies if requested) to the Agent which
presented the order (the "Presenting Agent").
The Presenting Agent will cause a Prospectus
and Pricing Supplement to be delivered to the
purchaser of such Certificated Note.
In each instance that a Pricing Supplement is
prepared, the Presenting Agent will affix the
Pricing Supplement to Prospectuses prior to
their use. Outdated Pricing Supplements
(other than those retained for files), will
be destroyed.
Suspension of
Solicitation;
Amendment or
Supplement:
Subject to the Company's representations,
warranties and covenants contained in the
Agency Agreement, the Company may instruct
the Agents to suspend at any time for any
period of time or permanently, the
solicitation of orders to purchase
Certificated Notes. Upon receipt of at least
twelve hours prior notice from the Company,
the Agents will suspend solicitation until
such time as the Company has advised them
that such solicitation may be resumed.
Notwithstanding the foregoing, if, at any
time when a prospectus relating to the Notes
is required to be delivered under the Act,
any event occurs as a result of which the
Prospectus as then supplemented would include
any untrue statement of a material fact or
omit to state any material fact necessary to
make the statements therein, in the light of
the circumstances under which they were made,
not misleading, or if it shall be necessary
to amend the Registration Statement or to
supplement the Prospectus to comply with the
Act or the Exchange Act or the respective
rules thereunder, the Company promptly will
instruct the Agents to suspend the
solicitation of orders to purchase
Certificated Notes and the Agents will
immediately suspend solicitation and cease
using the Prospectus as then supplemented.
In the event that at the time the Company
suspends solicitation of purchases there
shall be any orders outstanding for
settlement, the Company will promptly advise
the Agents and the Trustee whether such
orders may be settled and whether copies of
the Prospectus as in effect at the time of
the suspension, together with the appropriate
Pricing Supplement, may be delivered in
connection with the settlement of such
orders. The Company will have the sole
responsibility for such decision and for any
arrangements that may be made in the event
that the Company determines that such orders
may not be settled or that copies of such
Prospectus may not be so delivered.
If the Company decides to amend or supplement
the Registration Statement or the Prospectus,
it will promptly advise the Agents and
furnish the Agents with the proposed
amendment or supplement and with such
certificates and opinions as are required,
all to the extent required by and in
accordance with the terms of the Agency
Agreement. Subject to the provisions of the
Agency Agreement, the Company may file with
the Commission any supplement to the
Prospectus relating to the Notes. The
Company will provide the Agents and the
Trustee with copies of any such supplement,
and confirm to the Agents that such
supplement has been filed with the Commission
pursuant to the applicable paragraph of Rule
424(b).
Procedure for
Rate Changes:
When the Company has determined to change
the interest rates of Certificated Notes
being offered, it will promptly advise the
Agents and the Agents will forthwith suspend
solicitation of orders. The Agents will
telephone the Company with recommendations as
to the changed interest rates. At such time
as the Company has advised the Agents of the
new interest rates, the Agents may resume
solicitation of orders. Until such time only
"indications of interest" may be recorded.
Within two Business Days after any sale of
Notes, the Company will file with the
Securities and Exchange Commission a Pricing
Supplement to the Prospectus relating to such
Notes that reflects the applicable interest
rates and other terms and will deliver copies
of such Pricing Supplement to the Agents.
Delivery of
Prospectus:
A copy of the Prospectus and a Pricing
Supplement relating to a Certificated Note
must accompany or precede the earliest of any
written offer of such Certificated Note,
confirmation of the purchase of such
Certificated Note and payment for such
Certificated Note by its purchaser. If
notice of a change in the terms of the
Certificated Notes is received by the Agents
between the time an order for a Certificated
Note is placed and the time written
confirmation thereof is sent by the
Presenting Agent to a customer or his agent,
such confirmation shall be accompanied by a
Prospectus and Pricing Supplement setting
forth the terms in effect when the order was
placed. Subject to "Suspension of
Solicitation; Amendment or Supplement" above,
the Presenting Agent will deliver a
Prospectus and Pricing Supplement as herein
described with respect to each Certificated
Note sold by it. The Company will make such
delivery if such Certificated Note is sold
directly by the Company to a purchaser (other
than any Agent).
Confirmation:
For each order to purchase a Certificated
Note solicited by any Agent and accepted by
or on behalf of the Company, the Presenting
Agent will issue a confirmation to the
purchaser, with a copy to the Company,
setting forth the details set forth above and
delivery and payment instructions.
Settlement:
The receipt by the Company of immediately
available funds in exchange for an
authenticated Certificated Note delivered to
the Presenting Agent and the Presenting
Agent's delivery of such Certificated Note
against receipt of immediately available
funds shall, with respect to such
Certificated Note, constitute "settlement".
All orders accepted by the Company will be
settled on the fifth Business Day following
the date of sale pursuant to the timetable
for settlement set forth below, unless the
Company and the purchaser agree to settlement
on another day which shall be no earlier than
the next Business Day following the date of
sale.
Settlement
Procedures:
Settlement Procedures with regard to
each Certificated Note sold by the Company
through any Agent, as agent, shall be as
follows:
A. The Presenting Agent will advise the
Company by telephone of the following
settlement information:
1. Name in which such Certificated
Note is to be registered
("Registered Owner").
2. Address of the Registered Owner and
address for payment of principal
and interest.
3. Taxpayer identification number of
the Registered Owner (if
available).
4. Principal amount.
5. Stated Maturity.
6. Final Maturity.
7. Original Issue Date.
8. Interest Accrual Date.
9. In the case of a Fixed Rate
Certificated Note, the interest
rate and amortization provisions,
if any, or, in the case of a
Floating Rate Certificated Note,
whether such Note is a Regular
Floating Rate Note, a Floating
Rate/Fixed Rate Note or an Inverse
Floating Rate Note, the Base Rate,
Fixed Interest Rate, if any, Fixed
Rate Commencement Date, if any,
Initial Interest Rate (if known at
such time), Index Maturity,
Interest Reset Period, Interest
Reset Dates, Spread and/or Spread
Multiplier (if any), Minimum
Interest Rate (if any) and Maximum
Interest Rate (if any), and in the
case of an Indexed Note (as defined
in the Prospectus), the specific
terms thereof, and in the case of a
Dual Currency Note (as defined in
the Prospectus), the specific terms
thereof.
10. Interest Payment Dates and the
period for which interest accrues.
11. Specified Currency and whether the
option to elect payment in a
Specified Currency applies and if
the Specified Currency is not U.S.
dollars, the authorized
denominations.
12. Repayment provisions, if any.
13. Reset provisions, if any.
14. Extension provisions, if any.
15. Redemption provisions, if any.
18. Settlement date.
17. Issue Price (including currency).
18. Presenting Agent's commission,
determined as provided in Section 2
of the Agency Agreement.
19. Whether such Certificated Note is
issued at an original issue
discount, and, if so, the total
amount of OID, the yield to
maturity and the initial accrual
period OID.
B. The Company will advise the Trustee by
telephone (confirmed in writing at any
time on the sale date) or electronic
transmission of the information set
forth in Settlement Procedure "A" above,
the name of the Presenting Agent and any
other information which is required to
be added to the Note.
C. The Company will deliver to the Trustee
a pre-printed four-ply packet for such
Certificated Note, which packet will
contain the following documents in forms
that have been approved by Company, the
Agents and the Trustee:
1. Certificated Note with customer
confirmation.
2. Stub One -- For Trustee.
3. Stub Two -- For Agent.
4. Stub Three -- For the Company.
D. The Trustee will complete such
Certificated Note and will authenticate
such Certificated Note and deliver it
(with the confirmation) and Stubs One
and Two to the Presenting Agent, and the
Presenting Agent will acknowledge
receipt of the Note by stamping or
otherwise marking Stub One and returning
it to the Trustee. Such delivery will
be made only against such
acknowledgement of receipt. The
Presenting Agent will give instructions
to the Trustee for payment to the
account of the Company at The Chase
Manhattan Bank, N.A., New York, New York
in funds available for immediate use, of
an amount equal to the price of such
Certificated Note less the Presenting
Agent's commission. In the event that
the instructions given by the Presenting
Agent for payment to the account of the
Company are revoked, the Company will as
promptly as possible wire transfer to
the account of the Presenting Agent an
amount of immediately available funds
equal to the amount of such payment
made.
E. The Presenting Agent will deliver such
Certificated Note (with the
confirmation) to the customer against
payment in immediately payable funds.
The Presenting Agent will obtain the
acknowledgement of receipt of such
Certificated Note by retaining Stub Two.
F. The Trustee will send Stub Three to the
Company by first-class mail.
Settlement
Procedure
Timetable:
For orders of Certificated Notes solicited by
any Agent, as agent, and accepted by the
Company, Settlement Procedures "A" through
"F" set forth above shall be completed on or
before the respective times (New York City
time) set forth below:
Settlement
Procedure Time
A 2:00 P.M. on the business day
before settlement
B-C 3:00 P.M. on the business day
before settlement
D 2:15 P.M. on settlement date
E 3.00 P.M. on settlement date
F 5:00 P.M. on settlement date
Failure to
Settle:
If a purchaser fails to accept delivery
of and make payment for any Certificated
Note, the Presenting Agent will notify
the Company and the Trustee by telephone
and return such Certificated Note to the
Trustee. Upon receipt of such notice,
the Company will immediately wire
transfer to the account of the Presenting
Agent an amount equal to the amount
previously credited to the account of the
Company in respect of such Certificated Note.
Such wire transfer will be made on the
settlement date, if possible, and in any
event not later than the Business Day
following the settlement date. If the
failure shall have occurred for any reason
other than a default by the Presenting Agent
in the performance of its obligations
hereunder and under the Agency Agreement,
then the Company will reimburse the
Presenting Agent or the Trustee, as
appropriate, on an equitable basis for its
loss of the use of the funds during the
period when they were credited to the account
of the Company. Immediately upon receipt of
the Certificated Note in respect of which
such failure occurred, the Trustee will
cancel such Certificated Note in accordance
with the Indenture, will so advise the
Company and will make appropriate entries in
its records.
Trustee Not to
Risk Funds:
Nothing herein shall be deemed to require the
Trustee to risk or expend its own funds in
connection with any payment to the Company,
the Agents or any purchaser, it being
understood by all parties that payments made
by the Trustee to the Company, the Agents or
any purchaser shall be made only to the
extent that funds are provided to the Trustee
for such purpose.
Authenticity of
Signatures:
Upon the reasonable request of the Agents,
the Company will cause the Trustee to furnish
the Agents from time to time with the
specimen signatures of each of the Trustee's
officers, employees or agents who has been
authorized by the Trustee to authenticate
Certificated Notes, but no Agent will have
any obligation or liability to the Company or
the Trustee in respect of the authenticity of
the signature of any officer, employee or
agent of the Company or the Trustee on any
Certificated Note.
Payment of
Expenses:
Each Agent shall forward to the Company, on a
monthly basis, a statement of the
out-of-pocket expenses incurred by such Agent
during that month that are reimbursable to it
pursuant to the terms of the Agency
Agreement. The Company will remit payment to
the Agents currently on a monthly basis.
Advertising
Costs:
The Company will determine with the Agents
the amount of advertising that may be
appropriate in soliciting orders to purchase
the Certificated Notes. Advertising expenses
will be paid by the Company.
Periodic
Statements from
Trustee:
Monthly, the Trustee will send to the Company
a statement setting forth the principal
amount of Certificated Notes Outstanding as
of that date and setting forth a brief
description of any sales of Certificated
Notes which the Company has advised the
Trustee but which have not yet been settled.
EXHIBIT B
NYNEX CAPITAL FUNDING COMPANY
Medium-Term Notes, Series B
Due Nine Months or More from Date of Issue
TERMS AGREEMENT
Attention: ___________ __, 199_
Subject in all respects to the terms and conditions of
the Selling Agency Agreement (the "Agreement") dated March 3,
1994, among Lehman Brothers, Lehman Brothers Inc. (including its
affiliate Lehman Special Securities Inc.), J.P. Morgan Securities
Inc., Morgan Stanley & Co. Incorporated, Salomon Brothers Inc,
and you, the undersigned agrees to purchase the following Notes
of ____________________:
Aggregate Principal Amount: $
Specified Currency
[Denominated and
Indexed Currency]
[applicable Index]
Interest Rate:
Date of Stated Maturity:
Interest Payment Dates:
Regular Record Dates:
Discount: % of Principal Amount
Purchase Price: % of Principal Amount [plus
accrued interest from
_________, 199_]
Purchase Date and Time:
Place for Delivery of Notes
and Payment Therefor:
Method of Payment:
Modification, if any, in
the requirements to
deliver the documents
specified in Section 6(b)
of the Agreement:
Period during which additional
Notes may not be sold pursuant
to Section 4(m) of the Agreement:
(Purchaser]
By:
Accepted:
By:
Title:
Unless this certificate is presented by an authorized representative of The
Depository Trust Company, a New York corporation ("DTC"), to the issuer or
its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or in such other
name as requested by an authorized representative of DTC (and any payment
is made to Cede & Co. or to such other entity as is requested by an
authorized representative of DTC), any TRANSFER, PLEDGE, OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as
the registered owner hereof, Cede & Co., has an interest herein.
NYNEX CAPITAL FUNDING COMPANY
MEDIUM-TERM NOTE, SERIES B
REGISTERED REGISTERED
If applicable, the "Total Amount of OID," "Yield to Maturity"
and "Initial Accrual Period OID" (computed under the designated method)
below will be completed solely for the purposes of applying the federal
income tax original issue discount ("OID") rules.
Floating Rate Note [ ]
No. DSE-
CUSIP
Original Issue Date:
Issue Price:
Redeemable:
[ ] Yes [ ] No
Redemption Dates:
Redemption Price(s):
Initial Redemption Price: %
Annual Reduction Percentage: %
Option to Elect Repayment:
[ ] Yes [ ] No
Repayment Price:
Currency Indexed Note:
[ ] Yes [ ] No
Base Exchange Rate:
Denominated Currency:
Determination Agent:
Face Amount:
Indexed Currency:
Option to Reset Rates or Spread and/or
Spread Multiplier:
[ ] Yes [ ] No
Optional Reset Dates:
Option to Extend Maturity:
[ ] Yes [ ] No
Extension Periods:
Final Maturity:
% Fixed Rate Note [ ]
Principal Amount:
Stated Maturity:
Specified Currency:
Option to Elect Payment in Specified Currency (Only applicable if Specified
Currency is other than U.S. Dollars):
[ ] Yes [ ] No
Authorized Denominations (Only applicable if Specified Currency is other
than
U.S. Dollars):
Interest Payment Dates:
Total Amount of OID:
Yield to Maturity:
Initial Accrual Period OID:
Indexed Note (Other than Currency Indexed):
[ ] Yes [ ] No
Applicable Index:
Dual Currency Note:
[ ] Yes [ ] No
Option Election Dates:
Face Amount Currency:
Optional Payment Currency:
Designated Exchange Rate:
Amortizing Note:
[ ] Yes [ ] No
Depositary:
Other Provisions:
Annex Attached:
[ ] Yes [ ] No
Only applicable if this is a Floating Rate Note:
Regular Floating Rate Note:
[ ] Yes [ ] No
Floating Rate/Fixed Rate Note:
[ ] Yes [ ] No
Inverse Floating Rate Note:
[ ] Yes [ ] No
Initial Interest Rate:
Index Maturity:
Base Rate:
Interest Reset Period:
Interest Reset Dates:
Spread (plus or minus):
Spread Multiplier:
Fixed Interest Rate:
Fixed Rate Commencement Date:
Maximum Interest Rate:
Minimum Interest Rate:
NYNEX Capital Funding Company, a Delaware corporation (the
"Company"), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal amount hereof at the "Stated Maturity",
as set forth above, and to pay interest thereon as described in the Terms
and Conditions of the Note attached hereto.
Unless otherwise provided herein and, if this is a Dual
Currency Note, except as otherwise provided in Section 8 of the attached
Terms and Conditions of the Note, payments of principal of, and premium, if
any, and interest on this Note shall be made in U.S. dollars, and, if the
"Specified Currency" set forth above is a Foreign Currency (as defined in
the attached Terms and Conditions of the Note), such payments shall be made
in U.S. dollars based on the equivalent of that Foreign Currency converted
into U.S. dollars in the manner set forth in Section 15 of the attached
Terms and Conditions of the Note; provided that, if the Specified Currency
is a Foreign Currency, the holder may elect to receive such payments in
that Foreign Currency in the manner and with the effect set forth in
Section 15 of the attached Terms and Conditions of the Note. If this is a
Dual Currency Note, such payments shall be made in the currency or currency
unit provided in Section 8 of the attached Terms and
Conditions of the Note.
Reference is hereby made to the further provisions of this Note
set forth in the Terms and Conditions of the Note attached hereto
(including, without Limitation, the Annex, if any, attached thereto), which
further provisions shall for all purposes have the same effect as if set
forth at this place.
Unless the certificate of authentication hereon has been
manually executed by or on behalf of the Trustee under the Indenture, this
Note shall not be entitled to any benefit under the Indenture, or be valid
or obligatory for any purpose.
Capitalized terms used herein but not herein defined shall have
the meanings set forth in the Terms and Conditions of the Note attached
hereto.
In Witness Whereof, NYNEX Capital Funding Company has caused
this Note to be duly executed under its corporate seal.
NYNEX Capital Funding Company
[SEAL] By
Title:
ATTEST:
Assistant Secretary
Dated:
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein described in
the within-mentioned Indenture.
The Bank of New York,
as Trustee
By
<PAGE>
Terms and Conditions of the Note
NYNEX CAPITAL FUNDING COMPANY
Medium-Term Note, Series B
Section 1. General.
This Note is one of a duly authorized issue of debt securities (hereinafter
called the "Securities") of the Company of the series hereinafter
specified, all such Securities issued and to be issued under an Indenture
dated as of April 1, 1990 from the Company and NYNEX Corporation (the
"Guarantor") to The Bank of New York, as Trustee (the "Trustee"), as
amended by a First Supplemental Indenture dated as of March 3, 1994 (as so
amended, the "Indenture"), to which Indenture and all other indentures
supplemental thereto reference is hereby made for a statement of the rights
and limitations of rights thereunder of the holders of the Securities and
of the rights, obligations, duties and immunities of the Trustee for each
series of Securities and of the Company, and the terms upon which the
Securities are and are to be authenticated and delivered. As provided in
the Indenture, the Securities may be issued in one or more series, which
different series may be issued in various aggregate principal amounts, may
mature at different times, may bear interest, if any, at different rates,
may be subject to different redemption provisions, if any, may be subject
to different sinking, purchase or analogous funds, if any, may be subject
to different covenants and Events of Default (as defined in the Indenture)
and may otherwise vary as in the Indenture provided or permitted. This
Note is one of a series of the Securities designated on the face hereof as
Medium-Term Notes, Series B (the "Notes"). The Notes are limited to an
aggregate amount sufficient to result in gross proceeds to the Company of
up to U.S. $1,500,000,000 or the equivalent thereof in other currencies or
currency units, including, without limitation, composite currencies (each a
"Foreign Currency"), subject to reduction as a result of the concurrent
sale of other debt securities of the Company. The Notes of this series may
be issued at various times with different maturity dates and different
principal repayment provisions, may bear interest at different rates, may
be payable in different currencies and may otherwise vary, all as provided
in the Indenture. The Notes are, and all other Securities issued under the
Indenture will be, unconditionally guaranteed as to payment of principal,
premium, if any, and interest by the Guarantor. Unless otherwise defined
herein, all terms used in this Note which are defined in the Indenture
shall have the meanings assigned to them in the Indenture. If so specified
on the face hereof, an Annex setting forth further provisions of this Note
(an "Annex") is attached hereto, and such Annex is incorporated herein by
reference and made a part hereof as if set forth at this place.
References herein to "U.S. dollars" or "$" are to the coin or
currency of the United States as at the time of payment is legal tender for
the payment of public and private debts.
Section 2. Record Dates.
Unless otherwise specified on the face hereof, the "Regular Record
Date" with respect to any Interest Payment Date (as hereinafter defined)
shall be the date (whether or not a Business Day) 15 calendar days
immediately preceding such Interest Payment Date. Interest payable and
punctually paid or duly provided for on any Interest Payment Date shall be
paid to the person in whose name a Note is registered at the close of
business on the Regular Record Date immediately preceding such Interest
Payment Date; provided, however, that the first payment of interest (or, in
the case of an Amortizing Note, principal and interest) on any Note with an
Original Issue Date between a Regular Record Date and an Interest Payment
Date or on an Interest Payment Date will be made on the Interest Payment
Date following the next succeeding Regular Record Date to the registered
holder on such next succeeding Regular Record Date; provided, further, that
interest, if any, payable at the Stated Maturity or upon earlier redemption
or repayment shall be payable to the person to whom principal shall be
payable. Notwithstanding the foregoing, any interest which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date
(hereinafter called "Defaulted Interest") shall forthwith cease to be
payable to the registered holder on the relevant Regular Record Date by
virtue of having been such holder, and such Defaulted Interest may be paid
to the person in whose name such Note is registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Trustee, notice whereof having been given to
the holder of such Note not less than ten days prior to such Special Record
Date, or may be paid in any other lawful manner.
Unless otherwise specified in an Annex, "Business Day" means any
day, other than a Saturday or Sunday, that meets each of the following
applicable requirements: such day is (a) not a day on which banking
institutions in the Borough of Manhattan, The City of New York are
authorized or required by law, regulation or executive order to close; (b)
if this Note is denominated in a Foreign Currency other than the European
Currency Unit (the "ECU"), (x) not a day on which banking institutions are
authorized or required by law or regulation to close in the principal
financial center of the country issuing the Foreign Currency and (y) a day
on which banking institutions in such principal financial center are
carrying out transactions in such Foreign Currency; (c) if this Note is
denominated in ECU, (x) not a day on which banking institutions are
authorized or required by law or regulation to close in Luxembourg and (y)
an ECU clearing day, as determined by the ECU Banking Association in Paris;
and (d) if this Note is a LIBOR Note, a day on which dealings in deposits
in the Specified Currency are transacted in the London interbank market (a
"London Banking Day").
Unless otherwise specified in an Annex, all percentages (or decimal
equivalents) resulting from any calculation shall be rounded, if necessary,
to the nearest one hundred-thousandth of a percentage point (or the decimal
equivalent, .0000001), with five one-millionths of a percentage point (or
the decimal equivalent, .00000005) being rounded upward, and all currency
or currency unit amounts used in or resulting from such calculation on this
Note shall be rounded to the nearest one-hundredth (.01) of a unit, with
five one-thousandths (.005) of a unit being rounded upward.
"Interest Payment Date" means each date on which a payment of
interest is due. In the event of any redemption of this Note at the option
of the Company, any repayment of this Note at the option of the holder or
upon acceleration of the maturity of this Note or other prepayment of this
Note, the term "maturity" when used herein shall refer, where applicable,
to the date of redemption, repayment or other prepayment of this Note.
Section 3. Interest on Fixed Rate Notes.
If this is a "Fixed Rate Note", the Company promises to pay
interest on the principal amount at the rate per annum shown on the face
hereof until the principal amount hereof is paid or payment hereof is duly
provided for, except as otherwise provided in Sections 9 and 10.
Unless otherwise set forth on the face hereof, interest on a Fixed
Rate Note (other than an Amortizing Note) shall be payable semiannually on
each March 15 and September 15 and at the Stated Maturity or upon earlier
redemption or repayment; provided, however, that if an Interest Payment
Date (including, without limitation, a maturity date) for a Fixed Rate Note
would otherwise be a day that is not a Business Day, such Interest Payment
Date shall be postponed to the next day that is a Business Day. Unless
otherwise specified in an Annex, interest on a Fixed Rate Note shall be
calculated on the basis of a 360-day year of twelve thirty-day months.
Unless otherwise specified in an Annex, interest payments on a
Fixed Rate Note shall be the amount of interest accrued from, and
including, the Original Issue Date or the last date to which interest has
been paid to, but excluding, the Interest Payment Date or date of maturity,
as the case may be; provided that, if an Interest Payment Date or the
maturity date of a Fixed Rate Note that would otherwise fall on a day that
is not a Business Day is postponed, the interest payable on such date shall
accrue to, but exclude, the date that would have been the Interest Payment
Date or maturity date had it been a Business Day.
Section 4. Interest on Floating Rate Notes.
If this is a "Floating Rate Note", the Company promises to pay
interest on the principal amount from the Original Issue Date at the rate
per annum stated or the interest rate formula set forth on the face hereof
or in an Annex, until the principal amount hereof is paid or payment hereof
is duly provided for, except as otherwise provided in Sections 9 and 10.
Each applicable "Base Rate" is specified on the face of a Floating
Rate Note or in an Annex and may be : (a) the Commercial Paper Rate (a
"Commercial Paper Rate Note"), (b) the CD Rate (a "CD Rate Note"), (c) the
Federal Funds Rate (a "Federal Funds Rate Note"), (d) LIBOR (a "LIBOR
Note"), (e) the Treasury Rate (a "Treasury Rate Note"), (f) the Prime Rate
(a "Prime Rate Note") or (g) such other Base Rate or interest rate formula
as is set forth in an Annex.
The "Spread" is the number of basis points (one one-hundredth of a
percentage point (or the decimal equivalent, .0001)) specified on the face
of a Floating Rate Note, as being applicable to the interest rate for such
Floating Rate Note, and the "Spread Multiplier" is the percentage specified
on the face of a Floating Rate Note, as being applicable to the interest
rate for such Floating Rate Note.
The "Index Maturity" for a Floating Rate Note is the period of
maturity of the instrument or obligation from which the Base Rate is
calculated and is specified on the face of such Floating Rate Note.
As specified on the face of a Floating Rate Note, such Floating
Rate Note may be subject to either or both of the following: (i) a maximum
limitation on the rate of interest ("Maximum Interest Rate"); and (ii) a
minimum limitation on the rate of interest ("Minimum Interest Rate").
The following additional terms, among other terms, are specified on
the face of a Floating Rate Note or in an Annex: (i) whether the Floating
Rate Note is a "Regular Floating Rate Note", a "Floating Rate/Fixed Rate
Note" or an "Inverse Floating Rate Note" (each as defined below); ; (ii)
the Fixed Rate Commencement Date (as defined below), if any, and Fixed
Interest Rate, if any; and (iii) the Initial Interest Rate, Interest Reset
Dates, Interest Reset Period and Interest Payment Dates. Additional terms
may be specified in an Annex.
The interest rate borne by a Floating Rate Note shall be determined
as follows, subject to any applicable Maximum Interest Rate or Minimum
Interest Rate:
(i) Unless a Floating Rate Note is designated as a
Floating Rate/Fixed Rate Note or an Inverse Floating Rate Note and
except as otherwise specified in an Annex, such Floating Rate Note
shall be designated a "Regular Floating Rate Note". Except as
described below or in an Annex, such Regular Floating Rate Note
shall bear interest at the rate determined by reference to the
applicable Base Rate or Base Rates (a) plus or minus the applicable
Spread, if any, and/or (b) multiplied (or, if so specified in an
Annex, otherwise arithmetically modified) by the applicable Spread
Multiplier, if any. Commencing on the initial Interest Reset Date,
the rate at which interest on such Regular Floating Rate Note shall
be payable shall be reset as of each Interest Reset Date; provided,
however that (a) the interest rate in effect for the period from
the Original Issue Date to the initial Interest Reset Date shall be
the Initial Interest Rate, and (b) unless otherwise specified in an
Annex, the interest rate in effect for the 10 days immediately
prior to the Stated Maturity shall be that in effect on the tenth
day preceding the Stated Maturity.
(ii) If such Floating Rate Note is designated as a
"Floating Rate/Fixed Rate Note", then, except as described below or
in an Annex, such Floating Rate/Fixed Rate Note shall bear interest
at the rate determined by reference to the applicable Base Rate or
Base Rates (a) plus or minus the applicable Spread, if any, and/or
(b) multiplied (or, if so specified in an Annex, otherwise
arithmetically modified) by the applicable Spread Multiplier, if
any. Commencing on the initial Interest Reset Date, the rate at
which interest on such Floating Rate/Fixed Rate Note shall be
payable shall be reset as of each Interest Reset Date; provided,
however that (a) the interest rate in effect for the period from
the Original Issue Date to the initial Interest Reset Date shall be
the Initial Interest Rate; (b) unless otherwise specified in an
Annex, the interest rate in effect for the 10 days prior to the
Fixed Rate Commencement Date shall be that in effect on the tenth
day preceding the Fixed Rate Commencement Date; and (c) the
interest rate in effect commencing on, and including, the Fixed
Rate Commencement Date to the Stated Maturity shall be the Fixed
Interest Rate, if such rate is specified on the face hereof, or if
no such Fixed Interest Rate is so specified, the interest rate in
effect thereon on the day immediately preceding the Fixed Rate
Commencement Date. "Fixed Rate Commencement Date" means the date,
if any, specified as such on the face hereof.
(iii) If such Floating Rate Note is designated as an
"Inverse Floating Rate Note," then, except as described below or in
an Annex, such Inverse Floating Rate Note shall bear interest equal
to the Fixed Interest Rate specified on the face hereof minus the
rate determined by reference to the applicable Base Rate or Base
Rates (a) plus or minus the applicable Spread, if any, and/or (b)
multiplied (or, if so specified in an Annex, otherwise
arithmetically modified) by the applicable Spread Multiplier, if
any; provided, however, that the interest rate thereon shall not be
less than zero. Commencing on the initial Interest Reset Date, the
rate at which interest on such Inverse Floating Rate Note is
payable shall be reset as of each Interest Reset Date; provided,
however, that (a) the interest rate in effect for the period from
the Original Issue Date to the initial Interest Reset Date shall be
the Initial Interest Rate, and (b) unless otherwise specified in an
Annex, the interest rate in effect for the 10 days immediately
prior to the Stated Maturity shall be that in effect on the tenth
day preceding the Stated Maturity.
Notwithstanding the foregoing, if a Floating Rate Note is
designated as having an Annex attached, such Floating Rate Note shall bear
interest in accordance with the terms described in such Annex.
The rate of interest on a Floating Rate Note shall be reset daily,
weekly, monthly, quarterly, semiannually or annually (such period being the
"Interest Reset Period" for such Note and the first date of each Interest
Reset Period being an "Interest Reset Date"), as specified on the face
hereof. Unless otherwise specified on the face of a Floating Rate Note,
the Interest Reset Date shall be, in the case of Floating Rate Notes which
reset daily, each Business Day; in the case of Floating Rate Notes (other
than Treasury Rate Notes) which reset weekly, the Wednesday of each week;
in the case of Treasury Rate Notes which reset weekly, the Tuesday of each
week (except as provided below); in the case of Floating Rate Notes which
reset monthly, the third Wednesday of each month; in the case of Floating
Rate Notes which reset quarterly, the third Wednesday of March, June,
September and December; in the case of Floating Rate Notes which reset
semiannually, the third Wednesday of two months of each year, as specified
on the face hereof; and in the case of Floating Rate Notes which reset
annually, the third Wednesday of one month of each year, as specified on
the face hereof; provided, however, that the interest rate in effect from
the Original Issue Date, to the first Interest Reset Date with respect to a
Floating Rate Note shall be the Initial Interest Rate (as set forth on the
face hereof). If any Interest Reset Date for any Floating Rate Note 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 in the
case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Reset Date shall be the next preceding
Business Day.
Except as provided below, unless otherwise specified on the face
hereof or in an Annex, interest on a Floating Rate Note shall be payable:
(i) in the case of a Note with a daily or weekly Interest Reset Date, on
the third Wednesday of March, June, September and December; (ii) in the
case of a Note with a monthly Interest Reset Date, on the third Wednesday
of each month or on the third Wednesday of March, June, September and
December, as specified on the face hereof; (iii) in the case of a Note with
a quarterly Interest Reset Date, on the third Wednesday of March, June,
September and December; (iv) in the case of a Note with a semiannual
Interest Reset Date, on the third Wednesday of the two months specified on
the face hereof; (v) in the case of a Note with an annual Interest Reset
Date, on the third Wednesday of the month specified on the face hereof; and
(vi) in each case, at maturity. If any Interest Payment Date (including,
without limitation, a maturity date) for any Floating Rate Note would
otherwise be a day that is not a Business Day, such Interest Payment Date
shall be postponed to the next day that is a Business Day, provided that in
the case of a LIBOR Note, if such Business Day is in the next succeeding
calendar month, such Interest Payment Date shall be the immediately
preceding Business Day.
Unless otherwise specified in an Annex, interest payments on a
Floating Rate Note (except a Floating Rate Note on which interest is reset
daily or weekly) shall be the amount of interest accrued from, and
including, the Original Issue Date or the last date to which interest has
been paid to, but excluding, the Interest Payment Date or date of maturity,
as the case may be; provided that, if the maturity date of such a Floating
Rate Note that would otherwise fall on a day that is not a Business Day is
postponed, the interest payable on such date shall accrue to, but exclude,
the date that would have been the maturity date had it been a Business Day.
In the case of a Floating Rate Note on which interest is reset daily or
weekly, interest payments shall be, unless otherwise specified in an Annex,
the amount of interest accrued from and including the Original Issue Date
or from and including the last date to which interest has been paid, as the
case may be, to, and including, the Regular Record Date immediately
preceding such Interest Payment Date, except that at maturity, the interest
payable shall include interest accrued to, but excluding, the maturity
date.
Unless otherwise specified in an Annex, with respect to a Floating
Rate Note, accrued interest shall be calculated by multiplying the
principal amount of such Floating Rate Note (or, in the case of a Currency
Indexed Note, unless otherwise specified in an Annex, the Face Amount (as
defined below) of such Currency Indexed Note) by an accrued interest
factor. Such accrued interest factor shall be computed by adding the
interest factors calculated for each day in the Interest Reset Period or
from the last date from which accrued interest is being calculated. Unless
otherwise specified in an Annex, the interest factor for each such day is
computed by dividing the interest rate applicable to such day by 360, in
the case of a Commercial Paper Rate Note, CD Rate Note, Federal Funds Rate
Note, LIBOR Note and Prime Rate Note, or by the actual number of days in
the year, in the case of a Treasury Rate Note.
Unless otherwise specified in an Annex, the interest rate in effect
with respect to a Floating Rate Note on each day shall be (i) if such day
is an Interest Reset Date, the interest rate with respect to the Interest
Determination Date (as defined below) pertaining to such Interest Reset
Date, or (ii) if such day is not an Interest Reset Date, the interest rate
with respect to the Interest Determination Date pertaining to the next
preceding Interest Reset Date. The Interest rate with respect to any
Interest Determination Date shall be calculated by reference to the Base
Rate with respect to such Interest Determination Date (determined as
provided below), as adjusted by the applicable provisions set forth herein,
and subject in any case to any applicable Maximum Interest Rate or Minimum
Interest Rate.
Notwithstanding the foregoing, the interest rate in effect from the
Original Issue Date to the first Interest Reset Date set forth on the face
of a Floating Rate Note shall be the Initial Interest Rate specified on the
face of such Floating Rate Note. In addition, the interest rate hereon
shall 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.
Unless otherwise specified on the face hereof, the "Interest
Determination Date" pertaining to an Interest Reset Date (i) for a
Commercial Paper Rate Note, a CD Rate Note, a Federal Funds Rate Note, or a
Prime Rate Note shall be the second Business Day next preceding such
Interest Reset Date; (ii) for a LIBOR Note shall be the second London
Banking Day next preceding such Interest Reset Date; and (iii) for a
Treasury Rate Note shall be the day of the week in which such Interest
Reset Date falls on which Treasury bills of the Index Maturity specified on
the face hereof are normally auctioned. Treasury bills are normally sold
at auction on Monday of each week, unless that day is a legal holiday, in
which case the auction is normally held on the following Tuesday, except
that such auction may be held on the preceding Friday. If, as a result of
a legal holiday, an auction is so held on the preceding Friday, such Friday
will be the Interest Determination Date pertaining to the Interest Reset
Date for such Treasury Rate Note occurring in the next succeeding week.
Subject to applicable provisions of law, the interest rate with
respect to each Interest Determination Date shall be determined by the
Calculation Agent (as hereinafter defined).
Commercial Paper Rate Notes. Each Commercial Paper Rate Note shall
bear interest at the interest rate calculated with reference to the
applicable Commercial Paper Rate, as adjusted by the applicable provisions
set forth herein, and subject in any case to any applicable Maximum
Interest Rate or Minimum Interest Rate.
Unless otherwise specified in an Annex, the "Commercial Paper Rate"
means, with respect to any Interest Determination Date, the Money Market
Yield (calculated as described below) of the rate on that date for
commercial paper having the Index Maturity specified on the face hereof as
such rate is published by the Board of Governors of the Federal Reserve
System in "Statistical Release H.15(519), Selected Interest Rates," or any
successor publication of such Board ("H.15(519)"), under the heading
"Commercial Paper." If such rate is not published by 9:00 a.m., New York
City time, on the Calculation Date pertaining to such Interest
Determination Date, then the Commercial Paper Rate shall be the Money
Market Yield of the rate on the Interest Determination Date for commercial
paper having the Index Maturity specified on the face hereof, as published
by the Federal Reserve Bank of New York in its daily statistical release
"Composite 3:30 p.m. Quotations for U.S. Government Securities" under the
heading "Commercial Paper." If such rate is not published by 3:00 p.m.,
New York City time, then the Commercial Paper Rate for that Interest
Determination Date shall be calculated by the Calculation Agent and shall
be the Money Market Yield of the arithmetic mean of the offered rates of
three leading dealers of commercial paper in The City of New York selected
by the Calculation Agent as of 11:00 a.m., New York City time, on that
Interest Determination Date, for commercial paper having the Index Maturity
specified on the face hereof placed for an industrial issuer whose bond
rating is "AA," or the equivalent, from a nationally recognized rating
agency; provided, however, that, if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
Commercial Paper Rate shall be the Commercial Paper Rate in effect on such
Interest Determination Date.
"Money Market Yield" shall be the yield calculated in accordance
with the following formula:
Money Market Yield = D x 360 x 100
360 - (D x M)
where "D" refers to the 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 period for which interest is being calculated.
CD Rate Notes. Each CD Rate Note shall bear interest at the
interest rate calculated with reference to the applicable CD Rate, as
adjusted by the applicable provisions set forth herein, and subject in any
case to any applicable Maximum Interest Rate or Minimum Interest Rate.
Unless otherwise specified in an Annex, the "CD Rate" means, with
respect to any Interest Determination Date, the rate on such date for
negotiable certificates of deposit having the applicable Index Maturity as
published in H.15 (519) under the heading "CDs (Secondary Market)" or, if
not so published by 9:00 a.m., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the CD Rate shall be the
rate on such Interest Determination Date for negotiable certificates of
deposit of the applicable Index Maturity as published in 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 such Calculation Date, then the CD Rate for
such Interest Determination Date shall be calculated by the Calculation
Agent and shall be the arithmetic mean of the secondary market offered
rates as of the opening of business, New York City time, on such Interest
Determination Date, of three leading nonbank dealers in negotiable U.S.
dollar certificates of deposit in The City of New York selected by the
Calculation Agent after consultation with the Company, for negotiable
certificates of deposit of major United States money center banks of the
highest credit standing (in the market for negotiable certificates of
deposit) with a remaining maturity closest to the applicable Index Maturity
in a denomination of U.S. $5,000,000; provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the CD Rate shall be the CD Rate in effect on
such Interest Determination Date.
Federal Funds Rate Notes. Each Federal Funds Rate Note shall bear
interest at the interest rate calculated with reference to the applicable
Federal Funds Rate, as adjusted by the applicable provisions set forth
herein, and subject in any case to any applicable Maximum Interest Rate or
Minimum Interest Rate.
Unless otherwise specified in an Annex, the "Federal Funds Rate"
means, with respect to any Interest Determination Date, the rate on such
date for Federal Funds as published in H.15(519) under the heading "Federal
Funds (Effective)" or, if not so published by 9:00 a.m., New York City
time, on the Calculation Date pertaining to such Interest Determination
Date, the Federal Funds Rate shall be the rate on such Interest
Determination Date as published in Composite Quotations under the heading
"Federal Funds/Effective Rate." If such rate is not yet published by 9:00
a.m., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Federal Funds Rate for such Interest
Determination Date shall be the rate on such Interest Determination Date
made publicly available by the Federal Reserve Bank of New York which is
equivalent to the rate which appears in H.15(519) under the heading
"Federal Funds (Effective)"; provided, however, that if such rate is not
made publicly available by the Federal Reserve Bank of New York by 9:00
a.m., New York City time, on the Calculation Date, the Federal Funds Rate
shall be the Federal Funds Rate in effect on such Interest Determination
Date.
LIBOR Notes. Each LIBOR Note shall bear interest at the interest
rate calculated with reference to applicable LIBOR, as adjusted by the
applicable provisions set forth herein, and subject in any case to any
applicable Maximum Interest Rate or Minimum Interest Rate.
Unless otherwise specified in an Annex, the "LIBOR", with respect
to any Interest Determination Date, shall be determined by the Calculation
Agent as follows:
1. With respect to such Interest Determination Date,
LIBOR shall be either: (a) if "LIBOR Reuters" is specified on the
face hereof, the arithmetic mean of the offered rates (unless the
specified Designated LIBOR Page (as defined below) by its terms
provides only for a single rate, in which case such single rate
shall be used) for deposits in the LIBOR Index Currency having the
Index Maturity designated on the face hereof, commencing on such
Interest Determination Date, that appear on the Designated LIBOR
Page as of 11:00 a.m., London time, on that Interest Determination
Date, if at least two such offered rates appear (unless, as
aforesaid, only a single rate is required) on such Designated LIBOR
Page, or (b) if "LIBOR Telerate" is specified on the face hereof,
the rate for deposits in the LIBOR Index Currency having the Index
Maturity designated on the face hereof, commencing on such Interest
Determination Date, that appears on the Designated LIBOR Page as of
11:00 a.m., London time, on that Interest Determination Date. If
fewer than two offered rates appear (if "LIBOR Reuters" is
specified on the face hereof) or no rate appears (if "LIBOR
Telerate" is specified on the face hereof, LIBOR with respect to
such Interest Determination Date shall be determined as if the
parties had specified the rate described in clause (ii) below.
2. With respect to an Interest Determination Date on which
fewer than two offered rates appear (if "LIBOR Reuters" is
specified on the face hereof) or no rate appears (if "LIBOR
Telerate" is specified on the face hereof), the Calculation Agent
shall request the principal London office 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 LIBOR Index Currency for the
period of the Index Maturity designated on the face hereof,
commencing on the second London Banking Day immediately following
such Interest Determination Date, to prime banks in the London
interbank market at approximately 11:00 a.m., London time, on such
Interest Determination Date and in a principal amount of not less
than U.S. $1,000,000 (or the equivalent in the LIBOR Index
Currency, if the LIBOR Index Currency is not the U.S. dollar) that
is representative for a single transaction in such LIBOR Index
Currency in such market at such time. If at least two such
quotations are provided, LIBOR determined on such Interest
Determination Date shall be the arithmetic mean of such quotations.
If fewer than two quotations are provided, LIBOR determined on such
Interest Determination Date shall be the arithmetic mean of the
rates quoted at approximately 11:00 a.m. (or such other time
specified on the face hereof), in the applicable principal
financial center for the country of the LIBOR Index Currency on
such Interest Determination Date, by three major banks in such
principal financial center selected by the Calculation Agent for
loans in the LIBOR Index Currency to leading European banks, having
the Index Maturity designated on the face hereof and in a principal
amount of not less than U.S. $1,000,000 commencing on the second
London Banking Day immediately following such Interest
Determination Date (or the equivalent in the LIBOR Index Currency,
if the LIBOR Index Currency is not the U.S. dollar) that is
representative for a single transaction in such LIBOR Index
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 in effect for the applicable
period shall be LIBOR in effect on such Interest Determination
Date.
"LIBOR Index Currency" means the currency (including
composite currencies) specified on the face hereof or in an Annex as the
currency for which LIBOR shall be calculated. If no such currency is
specified on the face hereof or in an Annex, the LIBOR Index Currency shall
be the U.S. dollar.
"Designated LIBOR Page" means either (a) if "LIBOR
Reuters" is designated on the face hereof, the display on the Reuters
Monitor Money Rates Service for the purpose of displaying the London
interbank rates of major banks for the applicable LIBOR Index Currency
(and, if the U.S. dollar is the LIBOR Index Currency, Page LIBO), or (b) if
"LIBOR Telerate" is designated on the face hereof, the display on the Dow
Jones Telerate Service for the purpose of displaying the London interbank
rates of major banks for the applicable LIBOR Index Currency (and, if the
U.S. dollar is the LIBOR Index Currency, Page 3750). If neither LIBOR
Reuters nor LIBOR Telerate is specified on the face hereof, LIBOR for the
applicable Index Currency shall be determined as if LIBOR Telerate had been
specified.
Treasury Rate Notes. Each Treasury Rate Note shall bear interest
at the interest rate calculated with reference to the applicable Treasury
Rate, as adjusted by the applicable provisions set forth herein, and
subject in any case to any applicable Maximum Interest Rate or Minimum
Interest Rate.
Unless otherwise specified in an Annex, the "Treasury Rate" means,
with respect to any Interest Determination Date, the rate for the auction
held on such Interest Determination Date of direct obligations of the
United States ("Treasury bills") having the Index Maturity designated on
the face hereof as such rate is published in H.15(519) under the heading
"U.S. Government Securities--Treasury bills--auction average (investment)"
or, if such rate is not so published by 9:00 a.m., New York City time, on
the Calculation Date (as defined below) pertaining to such Interest
Determination Date, then the Treasury Rate shall be the auction average
rate (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
specified on the face hereof are not published or reported as provided
above by 3:00 p.m., New York City time, on such Calculation Date (as
defined below) or if no such auction is held in a particular week, then the
Treasury Rate for that Interest Determination Date shall be calculated by
the Calculation Agent and shall be a yield to maturity (expressed as a bond
equivalent, on the basis of 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
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 specified on the face hereof, provided, however, that if the
dealers selected as aforesaid by the Calculation Agent are not quoting as
mentioned in this sentence, the Treasury Rate shall be the Treasury Rate in
effect on such Interest Determination Date.
Prime Rate Notes. Each Prime Rate Note shall bear interest at the
interest rate calculated with reference to the applicable Prime Rate, as
adjusted by the applicable provisions set forth herein, and subject in any
case to any applicable Maximum Interest Rate or Minimum Interest Rate.
Unless otherwise specified in an Annex, the "Prime Rate" means,
with respect to any Interest Determination Date, the rate on that day as
published in H.15(519) under the heading "Bank Prime Loan" or, if not so
published by 9:00 a.m., New York City time, on the Calculation Date
pertaining to such Interest Determination Date, the Prime Rate shall be
determined by the Calculation Agent and shall be the arithmetic mean of the
rates of interest publicly announced by each bank named on the Reuters
Screen NYMF Page (as defined below) as such bank's prime rate or base
lending rate as in effect for such Interest Determination Date. If fewer
than four such rates but more than one such rate appear on the Reuters
Screen NYMF Page for such Interest Determination Date, the Prime Rate shall
be determined by the Calculation Agent and shall be the arithmetic mean of
the prime rates quoted on the basis of the actual number of days in the
year divided by 360 as of the close of business on such Interest
Determination Date by four major money center banks in The City of New York
selected by the Calculation Agent after consultation with the Company. If
fewer than two such rates appear on the Reuters Screen NYMF Page, the Prime
Rate shall be calculated by the Calculation Agent and shall be the
arithmetic mean of the prime rates in effect for such Interest
Determination Date as furnished in The City of New York by at least three
substitute banks or trust companies organized and doing business under the
laws of the United States, or any State thereof, in each case having total
equity capital of at least $500,000,000 and being subject to supervision or
examination by Federal or State authority, selected by the Calculation
Agent after consultation with the Company to provide such rate or rates;
provided, however, that if the banks or trust companies selected as
aforesaid are not quoting as mentioned in this sentence, the Prime Rate for
the applicable period shall be the Prime Rate in effect on such Interest
Determination Date.
"Reuters Screen NYMF Page" means the display designated as page
"NYMF" on the Reuters Monitor Money Rates Service, or such other page as
may replace the NYMF page on that service for the purpose of displaying
prime rates or base lending rates of major United States banks.
Unless otherwise specified on the face of a Floating Rate Note or
in an Annex, the "Calculation Date" pertaining to any Interest
Determination Date shall be the earlier of either (i) the tenth calendar
day after such date, or, if such tenth day is not a Business Day, the next
succeeding Business Day, or (ii) the Business Day preceding the applicable
Interest Payment Date or date of maturity, as the case may be.
Unless otherwise specified on the face hereof or in an Annex, The
Bank of New York will be the calculation agent (the "Calculation Agent")
with respect to a Floating Rate Note. Upon the request of the holder of a
Floating Rate Note, the Calculation Agent shall provide the interest rate
then in effect and, if determined, the interest rate which shall become
effective on the next Interest Reset Date with respect to such Floating
Rate Note. In the absence of manifest error, such determinations shall be
conclusive for all purposes and irrevocably binding upon the holder of such
Floating Rate Note, and the Calculation Agent shall have no liability
therefor.
Section 5. Amortizing Notes.
If this is an Amortizing Note, as specified on the face hereof,
then amounts in respect of principal and interest due on this Note shall be
payable over the life of this Note according to the amortization schedule
included in an Annex.
Unless otherwise specified on the face of an Amortizing Note or in
such Annex:
(a) Interest on such Amortizing Note shall be computed on
the basis of a 360-day year of twelve 30-day months.
(b) Payments with respect to such Amortizing Note shall be
applied first to interest due and payable thereon and then to the
reduction of the unpaid principal amount thereof.
(c) Amounts in respect of principal and interest on such
Amortizing Note shall be payable either semiannually on each March
15 and September 15, or quarterly on each March 15, June 15,
September 15 and December 15 and at maturity, as specified on the
face of such Amortizing Note or in such Annex.
Additional terms and conditions of any issue of Amortizing Notes
may be set forth in such Annex.
Section 6. Currency Indexed Notes.
(a) If this is a Currency Indexed Note, as specified on the face
hereof, the principal amount payable at the Stated Maturity of this Note
and/or the interest rate of this Note shall be determined by reference to
the rate of exchange between the Denominated Currency and the Indexed
Currency.
(b) As used herein, the following terms have the following
meanings:
"Base Exchange Rate" means the rate of exchange, expressed
in units of the Indexed Currency per one unit of the Denominated
Currency, at which the Denominated Currency can be exchanged for
the Indexed Currency, designated as the "Base Exchange Rate" on the
face of the Currency Indexed Note.
"Denominated Currency" means the currency or currency unit
(including, without limitation, any composite currency) in which
the Currency Indexed Note is denominated, as specified on the face
of the Currency Indexed Note.
"Determination Agent" means the determination agent
specified on the face of the Currency Indexed Note or in an Annex.
"Determination Date" means the second Exchange Rate Day
prior to the Stated Maturity date of the Currency Indexed Note.
"Exchange Rate Day" means any day which is a Business Day
in The City of New York, and if such term is used with reference to
a Denominated Currency or Indexed Currency that is a Foreign
Currency, in the principal financial center of the country of such
Denominated Currency or Indexed Currency, as the case may be.
"Face Amount" means the stated principal amount of the
Currency Indexed Note, as set forth on the face of the Currency
Indexed Note.
"Indexed Currency" means the other currency or currency
unit (including, without limitation, any composite currency)
specified as the Indexed Currency (the "Indexed Currency") on the
face of the Currency Indexed Note, or as determined in such other
manner as may be specified in an Annex.
"Reference Dealers" means the three banks or firms
specified as such in an Annex, or if any of them shall be unwilling
or unable to provide the requested quotations, such other major
money center bank or banks in The City of New York selected by the
Company, in consultation with the Determination Agent, to act as
Reference Dealer or Dealers in replacement therefor.
"Spot Rate" means the rate of exchange, expressed in units
of the Indexed Currency per one unit of the Denominated Currency,
at which the Denominated Currency can be exchanged for the Indexed
Currency on the Determination Date next preceding the Stated
Maturity date of a Currency Indexed Note, as determined by the
Determination Agent, based upon the arithmetic mean of the open
market spot offer quotations for the Indexed Currency (spot bid
quotations for the Denominated Currency) obtained by the
Determination Agent from the Reference Dealers in The City of New
York at approximately 11:00 a.m., New York City time, on the
Determination Date, for an amount of Indexed Currency equal to the
aggregate Face Amount of such Currency Indexed Notes multiplied by
the Base Exchange Rate, with settlement on the Stated Maturity to
be in the Denominated Currency. If such quotations from the
Reference Dealers are not available on the Determination Date due
to circumstances beyond the control of the Company and the
Determination Agent, the Spot Rate shall be determined on the basis
of the most recently available quotations from the Reference
Dealers.
(c) Unless otherwise specified in an Annex, the amount of principal
payable at the Stated Maturity of a Currency Indexed Note shall be
determined by the Determination Agent, subject to the terms and limitations
set forth herein, according to the following formulas:
(i) If the Spot Rate equals or exceeds the Base Exchange
Rate, the principal amount of a Currency Indexed Note payable at
the Stated Maturity shall equal:
Face Amount + (Face Amount x Spot Rate - Base Exchange Rate
Spot Rate ); or
(ii) If the Base Exchange Rate exceeds the Spot Rate, the
principal amount of a Currency Indexed Note payable at the Stated
Maturity (which shall, in no event, be less than zero) shall equal:
Face Amount - (Face Amount x Base Exchange Rate - Spot Rate
Spot Rate );
provided that, if the Spot Rate is less than or equal to one-half of the
Base Exchange Rate, then the Spot Rate shall be deemed to be one-half of
the Base Exchange Rate and no principal amount of the Currency Indexed Note
would be payable at the Stated Maturity; and provided further that, in no
event shall the principal amount payable at the Stated Maturity be (x) more
than twice the Face Amount, or (y) less than zero.
(d) Unless otherwise specified in an Annex, in the event of any
redemption, repayment or prepayment of a Currency Indexed Note prior to its
Stated Maturity, the phrases "Stated Maturity" and "at the Stated Maturity"
used above shall refer to the redemption, repayment or prepayment date of
such Currency Indexed Note. If this Note is an Original Issue Discount
Note (as defined below), the term "Face Amount" when used in this Section
shall refer to the "Amortized Face Amount", as defined in Section 14.
(e) If interest is indexed, the amount of interest payable on any
date for the payment of interest shall be the Face Amount multiplied by the
relevant interest rate, indexed as specified in an Annex.
(f) Unless otherwise specified in an Annex, the payment of
principal of, premium, if any, and interest on any Currency Indexed Note
shall be payable in the Denominated Currency (except as otherwise described
in Section 15), and the principal shall be payable in amounts calculated in
the manner described in this Section 6.
(g) In the absence of manifest error, the determination by the
Determination Agent of the Spot Rate and of the amount of principal and
interest payable in respect of Currency Indexed Notes shall be conclusive
for all purposes and irrevocably binding upon the holders of such Currency
Indexed Notes, and the Determination Agent shall have no liability
therefor.
Section 7. Other Indexed Notes and Certain Terms Applicable to All
Indexed Notes.
If this is an Indexed Note other than a Currency Indexed Note, as
specified on the face hereof, the principal amount payable at maturity
and/or the interest rate of this Note may be determined by reference to the
relationship between two or more currencies, to the price of one or more
specified securities or commodities, to one or more securities or
commodities exchange indices or other indices or by other similar methods
or formulas or on such other terms as may be set forth in an Annex. Such
an Annex, if any, relating to such an Indexed Note describes, as
applicable, the method by which the amount of interest payable on any
Interest Payment Date and the amount of principal payable at maturity in
respect of such Indexed Note will be determined.
Unless otherwise specified in an Annex, the maximum principal
amount payable at maturity in respect of any Indexed Note (including,
without limitation, a Currency Indexed Note) shall be an amount equal to
twice the face amount thereof and the minimum principal amount so payable
would be zero.
Unless otherwise specified in an Annex, (a) for the purpose of
Determining whether holders of the requisite principal amount of Debt
Securities outstanding under the Indenture have made a demand or given a
notice or waiver or taken any other action, the outstanding principal
amount of Indexed Notes (including, without limitation, any Currency
Indexed Notes) shall be deemed to be the face amount thereof and (b) if the
payment of principal of and interest on any Indexed Note (including,
without limitation, any Currency Indexed Note) is accelerated in accordance
with the provisions of the Indenture referred to in Section 16, then the
Company shall pay to the holder of such Indexed Note on the date of
acceleration the principal amount determined by reference to the formula by
which the principal amount of such Indexed Note would be determined on the
Stated Maturity thereof, as if the date of acceleration were the Stated
Maturity.
Section 8. Dual Currency Notes.
(a) Except as otherwise specified below and in an Annex, if this
is a Dual Currency Note, as specified on the face hereof, the Company shall
have the option of making any scheduled payment of principal or interest
due on this Note in either the Face Amount Currency specified on the face
hereof or the Optional Payment Currency specified on the face hereof, as
provided in accordance with paragraphs (b) and (c) of this Section 8.
(b) Unless otherwise specified on the face of a Dual Currency Note
and/or in an Annex attached to such Note:
(i) If the Company elects, on any Option Election Date
specified on the face of a Dual Currency Note, to make a payment in
the Optional Payment Currency, the amount payable in such Optional
Payment Currency shall be determined using the Designated Exchange
Rate specified on the face of such Dual Currency Note.
(ii) The face of a Dual Currency Note and/or an Annex
attached to such Dual Currency Note specifies, among other things,
the face amount of the Dual Currency Notes of each issuance of Dual
Currency Notes, the Face Amount Currency and Optional Payment
Currency of such issuance and the Designated Exchange Rate for such
issuance, which shall be a fixed exchange rate used for converting
amounts denominated in the Face Amount Currency into amounts
denominated in the Optional Payment Currency, the Option Election
Dates, Interest Payment Dates and Stated Maturity for the related
issuance of Dual Currency Notes.
(iii) Each Option Election Date shall be not less than 10
days before an Interest Payment Date or the Stated Maturity and
shall be the date on which the Company must elect to make payments
due on the related Interest Payment Date in the Optional Payment
Currency (if the Company makes such election).
(c) Unless otherwise specified on the face of a Dual Currency Note
and/or in an Annex annexed to such Note:
(i) Interest on such Dual Currency Note shall be payable
based on the Face Amount of such Dual Currency Note at the rate per
annum applicable to such Note.
(ii) (A) Any payment of principal or interest due on any
Interest Payment Date (including, without limitation, any sinking
fund redemption date) or on the Stated Maturity may be made (x) in
the Face Amount Currency or (y) if the Company so elects, in the
Optional Payment Currency. (B) If such election is made, notice of
such election shall be provided in accordance with the Indenture
within four Business Days after the Option Election Date and shall
state (x) the applicable Interest Payment Date or the Stated
Maturity, as the case may be, with respect to which such election
has been made, and (y) the Designated Exchange Rate. (C) Any such
notice by the Company with respect to an Interest Payment Date or
the Stated Maturity, as the case may be, once given, may not be
withdrawn with respect to such Interest Payment Date or the Stated
Maturity, as the case may be.
(iii) If the Company elects on any Option Election Date to
pay the amounts due on the next succeeding Interest Payment Date or
on the Stated Maturity in the Optional Payment Currency, (A) the
amounts payable in the Optional Payment Currency on such Interest
Payment Date or at the Stated Maturity shall be determined by the
Company using the Designated Exchange Rate; and (B) the Company
shall pay all amounts (including interest and, if applicable,
principal) due with respect to the affected issuance of Dual
Currency Notes in the Optional Payment Currency on such Interest
Payment Date or the Stated Maturity.
(iv) (A) The Company may, from time to time at its
option, elect on any Option Election Date to pay the amounts due on
the next succeeding Interest Payment Date or on the Stated Maturity
in the Optional Payment Currency, and, if the Company has made such
an election with respect to any Interest Payment Date, it need not
make such an election with respect to a subsequent Interest Payment
Date or the Stated Maturity; and, in such event, amounts payable on
such subsequent Interest Payment Date or on the Stated Maturity
shall be paid in the Face Amount Currency. (B) If the Company does
not elect on an Option Election Date to pay the amount due on the
related Interest Payment Date or on the Stated Maturity in the
Optional Payment Currency, then such payment shall be made in the
Face Amount Currency and no notice of any election need be given.
(d) Unless otherwise specified on the face of a Dual Currency Note
and/or in an Annex attached to such Note:
(i) Notwithstanding any prior election by the Company, if
a Dual Currency Note is redeemed at the option of the Company or
repaid at the option of the holder prior to its Stated Maturity or
if the payment of principal of and interest on any Dual Currency
Note is accelerated in accordance with the provisions of the
Indenture referred to in Section 16, then the Company shall pay to
the holder of such Dual Currency Note, on the redemption date or
the date of repayment or acceleration, an amount equal to the face
amount thereof in the Face Amount Currency plus accrued interest in
such currency to but excluding the redemption date or the date of
repayment or acceleration, as the case may be, minus the Total
Option Value (as defined below) multiplied by a fraction, the
numerator of which is the Face Amount of such Dual Currency Note
and the denominator of which is the aggregate Face Amount of all
Dual Currency Notes issued on the same day and having the same
terms as such Dual Currency Note. Notwithstanding any prior
election made by the Company, such payment shall be made in the
Face Amount Currency unless otherwise specified on the face of such
Dual Currency Note and/or in an Annex attached to such Note.
(ii) The "Total Option Value" of any Dual Currency Note is
an amount (calculated as of the date on which the Company notifies
the Trustee that such Dual Currency Note will be redeemed at the
option of the Company, or the date of repayment at the option of
the holder or the date of acceleration, as the case may be, by the
Option Value Calculation Agent (to be designated in an Annex))
equal to the sum of the Option Values (calculated as of such date
by the Option Value Calculation Agent) for all Interest Payment
Dates occurring after the date of calculation up to and including
the Stated Maturity.
(iii) The "Option Value" for an Interest Payment Date or
the Stated Maturity is the amount calculated by the Option Value
Calculation Agent to be the arithmetic average of the prices quoted
on the date of calculation by three reference banks (which Banks
shall be selected by the Option Value Calculation Agent and shall
be reasonably acceptable the Company) for the right on the Option
Election Date immediately preceding such Interest Payment Date or
the Stated Maturity to purchase for value on such Interest Payment
Date or the Stated Maturity from such reference banks (A) the
aggregate amount of the Face Amount currency due on such Interest
Payment Date or the Stated Maturity with respect to all of the Dual
Currency Notes issued on the same day and having the same terms as
such Dual Currency Note in exchange for (B) the amount of the
Optional Payment Currency that would be received if the amount in
clause (A) were converted into the Optional Payment Currency at the
Designated Exchange Rate.
(iv) In no event shall the payment of principal of any
Dual Currency Note upon such redemption or repayment or upon
acceleration be less than zero.
(v) All determinations made by the Option Value
Calculation Agent shall be in its sole discretion (except to the
extent it is expressly provided that any determination is subject
to approval by the Company), and, in the absence of manifest error,
shall be conclusive for all purposes and irrevocably binding upon
the holders of Dual Currency Notes, and the Option Value
Calculation Agent shall have no liability therefor.
(e) If so specified in an Annex and as an alternative to the above
provisions set forth in this Section 8, the terms of an issue of Dual
Currency Notes may provide that the Company shall have a one-time option,
exercisable in whole but not in part with respect to all Dual Currency
Notes of such issue, of thereafter making all scheduled payments of
principal, premium, if any, and interest in the Optional Payment Currency.
Unless otherwise specified in such Annex, the terms applicable to such an
issue would preclude the Company from making any subsequent election to
make scheduled payments in the Face Amount Currency. If applicable, the
terms of such an issue (including terms relating to payment of principal,
premium and interest other than scheduled payments , which would be
applicable in lieu of the above described provisions are set forth in such
Annex.
Section 9. Subsequent Interest Periods.
If so specified on the face hereof, the Company has the option with
respect to this Note to reset the interest rate, in the case of a Fixed
Rate Note, or to reset the Spread and/or Spread Multiplier, in the case of
a Floating Rate Note, on the date or dates specified on the face hereof or
in an Annex (each, an "Optional Reset Date"), and, if so specified on the
face hereof or in an Annex, at such time, the Company may also provide for
different redemption provisions to be effective during the Subsequent
Interest Period (as hereinafter defined) following any repayment pursuant
to the fourth paragraph of this Section 9.
The Company may exercise such an option with respect to this Note,
if such an option is applicable to this Note, by notifying the Trustee of
such exercise at least 45 but not more than 60 days prior to an Optional
Reset Date for this Note. Not later than 40 days prior to such an Optional
Reset Date, the Trustee shall mail to the holder of this Note a notice (the
"Reset Notice"), first class, postage prepaid, setting forth (i) the
election of the Company to reset the interest rate, in the case of a Fixed
Rate Note, or the Spread and/or Spread Multiplier, in the case of a
Floating Rate Note, (ii) such new interest rate or such new Spread and/or
Spread Multiplier, as the case may be, and (iii) the provisions, if any,
for redemption during the period from such Optional Reset Date to the next
Optional Reset Date or, if there is no such next Optional Reset Date, to
the Stated Maturity of this Note (each such period, a "Subsequent Interest
Period"), including the date or dates on which or the period during which
and the price or prices at which such redemption may occur during such
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to an
Optional Reset Date for this Note, the Company may, at its option, revoke
the interest rate, in the case of a Fixed Rate Note, or the Spread and/or
Spread Multiplier, in the case of a Floating Rate Note, provided for in the
Reset Notice and establish (i) a higher interest rate, in the case of a
Fixed Rate Note, or (ii) a Spread and/or Spread Multiplier that would
result in a higher interest rate (assuming the same Base Rate), in the case
of a Floating Rate Note, for the Subsequent Interest Period commencing on
such Optional Reset Date by causing the Trustee to mail notice of such
higher interest rate or new Spread and/or Spread Multiplier, as the case
may be, first class, postage prepaid, to the holder of this Note. Such
notice shall be irrevocable. All Notes with respect to which the interest
rate or Spread and/or Spread Multiplier is reset on an Optional Reset Date
shall bear such higher interest rate, in the case of a Fixed Rate Note, or
Spread and/or Spread Multiplier that would result in a higher interest rate
(assuming the same Base Rate), in the case of a Floating Rate Note, whether
or not tendered for repayment.
If the Company resets the interest rate or the Spread and/or Spread
Multiplier of this Note, the holder of this Note will have the option to
elect repayment of this Note by the Company on an Optional Reset Date at a
price equal to the principal amount hereof plus any accrued interest to
such Optional Reset Date. In order for this Note to be so repaid on an
Optional Reset Date, the holder hereof must follow the procedures set forth
below in Section 13 for optional repayment except that the period for
delivery of this Note or notification to the Trustee shall be at least 25
but not more that 35 days prior to such Optional Reset Date and except that
a holder who has tendered this Note for repayment pursuant to a Reset
Notice may, by written notice to the Trustee, revoke any such tender for
repayment until the close of business on the tenth day prior to such
Optional Reset Date; provided, however, that if such day is not a Business
Day, then such notice may be given on the next succeeding Business Day.
Section 10. Extension of Maturity.
If so specified on the face hereof, the Company may extend the
Stated Maturity of this Note (unless this Note is an Amortizing Note) for
one or more periods of from one to five whole years (each, an "Extension
Period") up to but not beyond the date (the "Final Maturity") set forth on
the face hereof, and, if so specified on the face hereof or in an Annex, at
such time, the Company may reset the interest rate, in the case of a Fixed
Rate Note or the Spread and/or Spread Multiplier, in the case of a Floating
Rate Note, for the Extension Period and may provide for different
redemption provisions to be effective during the Extension Period following
any repayment pursuant to the fourth paragraph of this Section 10.
The Company may exercise such an option with respect to this Note,
if such option is applicable to this Note, by notifying the Trustee of such
exercise at least 45 but not more than 60 days prior to the Stated Maturity
of this Note in effect prior to the exercise of such option (the "Original
Stated Maturity"). Not later than 40 days prior to the Original Stated
Maturity, the Trustee shall mail to the holder of this Note a notice (the
"Extension Notice"), first class, postage prepaid setting forth (i) the
election of the Company to extend the Stated Maturity of this Note, (ii)
the new Stated Maturity, (iii) in the case of a Fixed Rate Note, the
interest rate applicable to the Extension Period or, in the case of a
Floating Rate Note, the Spread and/or Spread Multiplier applicable to the
Extension Period, and (iv) the provisions, if any, for redemption during
the Extension Period, including the date on which or the period or periods
during which and the price at which such redemption may occur during the
Extension Period. Upon the mailing by the Trustee of an Extension Notice
to the holder of this Note, the Stated Maturity of this Note shall be
extended automatically, and, except as modified by the Extension Notice and
as described in the next paragraph, this Note shall have the same terms as
prior to the mailing of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days prior to the
Original Stated Maturity for this Note, the Company may, at its option,
revoke the interest rate, in the case of a Fixed Rate Note, or the Spread
and/or Spread Multiplier, in the case of a Floating Rate Note, provided for
in the Extension Notice and establish (i) a higher interest rate, in the
case of a Fixed Rate Note, or (ii) a Spread and/or Spread Multiplier that
would result in a higher interest rate (assuming the same Base Rate), in
the case of a Floating Rate Note, for the Extension Period by causing the
Trustee to mail notice of such higher interest rate or new Spread and/or
Spread Multiplier, as the case may be, first class, postage prepaid, to the
holder of this Note. Such notice shall be irrevocable and shall be mailed
by the Trustee within one Business Day after the receipt thereof. All
Notes with respect to which the Stated Maturity is extended shall bear such
higher interest rate, in the case of a Fixed Rate Note, or Spread and/or
Spread Multiplier that would result in a higher interest rate (assuming the
same Base Rate), in the case of a Floating Rate Note, for the Extension
Period, whether or not tendered for repayment.
If the Company extends the Stated Maturity of this Note, the holder
of this Note shall have the option to elect repayment of this Note by the
Company on the original Stated Maturity at a price equal to the principal
amount hereof plus any accrued interest to such date. In order for this
Note to be repaid on the Original Stated Maturity, the holder hereof must
follow the procedures set forth below in Section 13 for optional repayment,
except that the period for delivery of this Note or notification to the
Trustee shall be at least 25 but not more than 35 days prior to the
Original Stated Maturity and except that a holder who has tendered this
Note for repayment pursuant to an Extension Notice may, by written notice
to the Trustee, revoke any such tender for repayment until the close of
business on the tenth day prior to the Original Stated Maturity; provided,
however, that if such day is not a Business Day then such notice may be
given on the next succeeding Business Day.
Section 11. Payment of Principal, Premium and Interest.
Unless otherwise specified on the face hereof or in an Annex,
payments in U.S. dollars of interest on certificates issued in definitive
form (other than interest payable at Stated Maturity or upon earlier
redemption or repayment) shall be made by mailing a check to the holder at
the address of such holder appearing on the Security Register on the
applicable Regular Record Date. Notwithstanding the foregoing, a holder of
U.S. $10,000,000 or more in aggregate principal amount of Notes of this
series and of like tenor and terms (or a holder of the equivalent thereof
in a Foreign Currency) shall be entitled to receive such payments in U.S.
dollars by wire transfer of immediately available funds, but only if
appropriate payment instructions have been received in writing by the
paying agent (initially, The Bank of New York) (the "Paying Agent") not
less than 15 calendar days prior to the applicable Interest Payment Date.
Unless otherwise specified on the face hereof or in an Annex, principal,
premium, if any, and interest payable at maturity or upon earlier
redemption or repayment in respect of this Note shall be paid in
immediately available funds upon surrender of this Note, accompanied by
wire transfer instructions, at the office of the Paying Agent.
Notwithstanding the foregoing, if this Note is a global Security,
then, unless otherwise specified on the face hereof or in an Annex, (i)
payments of interest on this Note, on any date other than a maturity date
of this Note, will be made in same-day funds in accordance with
arrangements between the Trustee or any Paying Agent and the Depositary,
and (ii) any principal, premium or interest payable on any maturity date
will be paid by wire transfer of immediately available funds to an account
specified by the Depositary.
Section 12. Redemption.
If so specified on the face hereof, this Note may be redeemed
either in whole or from time to time in part, at the option of the Company,
upon not less than 30 nor more than 60 days' notice, at the redemption
price or prices specified on the face hereof or in an Annex, together with
accrued interest to the date of redemption.
If less than all of the Notes of like tenor and terms are to be
redeemed, the Notes to be redeemed shall be selected by the Trustee by such
method as the Trustee deems fair and appropriate in accordance with the
Indenture.
The notice of such redemption shall specify which Notes are to be
redeemed. In the event of redemption of this Note in part only, a new Note
or Notes of this series of like tenor and terms for the unredeemed portion
hereof will be issued to the holder hereof upon the surrender hereof, in
accordance with the Indenture.
Unless otherwise specified on the face hereof or in an Annex, this
Note shall not be subject to any sinking fund.
Section 13. Repayment at the Option of the Holder.
If specified on the face hereof, this Note shall be repayable at
the option of the holder hereof on the repayment dates specified on the
face hereof prior to Stated Maturity (the "Repayment Dates") at the
repayment prices specified on the face hereof (the "Repayment Prices")
together with accrued interest to the date of repayment.
In order for this Note to be repaid, if an option to elect
repayment is so specified, the Paying Agent must receive at least 30 days
but not more than 45 days prior to the Repayment Date (i) the Note with the
form entitled "Option to Elect Repayment" set forth below duly completed or
(ii) a telegram, telex, facsimile transmission or letter from a member of a
national securities exchange or the National Association of Securities
Dealers, Inc. or a commercial bank or trust company in the United States
setting forth the name of the holder of the Note, the principal amount of
the Note, the principal amount of the Note to be repaid, the certificate
number or a description of the tenor and terms of the Note, a statement
that the option to elect repayment is being exercised thereby and a
guarantee that the Note with the form entitled "Option to Elect Repayment"
set forth below duly completed will be received by such Paying Agent not
later than five Business Days after the date of such telegram, telex,
facsimile transmission or letter and such Note and form duly completed
shall be received by the Paying Agent not later than such fifth Business
Day. Exercise of such repayment option by the holder of this Note shall be
irrevocable. The repayment option may be exercised by the holder of this
Note for less than the entire principal amount of this Note provided that
the principal amount remaining outstanding after repayment is an authorized
denomination.
Section 14. Redemption or Repayment of Original Issue Discount
Notes, Currency Indexed Notes or Dual Currency Notes.
Unless specified on the face hereof, if this Note is an Original
Issue Discount Note (as defined below), the amount payable on this Note in
the event of redemption or repayment prior to its Stated Maturity shall be
the Amortized Face Amount of such Note as of the date of redemption or the
date of repayment, as the case may be. The "Amortized Face Amount" of an
Original Issue Discount Note shall be the amount equal to (i) the Issue
Price (as defined below) set forth on the face of such Note plus (ii) that
portion of the difference between the Issue Price and the principal amount
of such Note that has accrued at the yield to maturity set forth on the
face of such Note (computed in accordance with generally accepted United
States bond yield computation principles) by such date of redemption or
repayment, but in no event shall the Amortized Face Amount of an Original
Issue Discount Note exceed its principal amount. Unless otherwise
specified on the face of a Currency Indexed Note or Dual Currency Note, in
the event of redemption or repayment at the option of the holder of such
Currency Indexed Note or Dual Currency Note, the amount payable upon such
redemption or repayment shall be the respective amount determined in the
manner provided in Section 7 or 8, as the case may be.
Section 15. Foreign Currency Denominated Notes.
If this Note is denominated in a Foreign Currency, then except as
otherwise provided below or in an Annex, the principal of, premium, if
any, and interest on this Note shall be payable in U.S. dollars based on
the equivalent of that Foreign Currency converted into U.S. dollars. If
this Note is denominated in a Foreign Currency, the Company shall, unless
otherwise specified in an Annex, appoint an agent (an "Exchange Rate
Agent") to determine the exchange rate for converting all payments in
respect of this Note into U.S. dollars in the manner described in the next
paragraph. Unless otherwise specified in an Annex, The Bank of New York,
or an affiliate, will act as the Exchange Rate Agent. Notwithstanding the
foregoing, the holder of a Note denominated in a Foreign Currency may
(unless otherwise specified in an Annex) elect to receive all such payments
in the Foreign Currency by delivery of a written request to the Trustee (or
to any duly appointed Paying Agent) at the Corporate Trust Office not later
than 10 calendar days prior to the applicable payment date, and such
election will remain in effect for such holder until revoked by written
notice to the Trustee (or to any such Paying Agent) at the Corporate Trust
Office, received not later than 10 calendar days prior to the applicable
payment date; provided, however, no such election or revocation may be made
with respect to payments on a Note with respect to which (i) an Event of
Default (as defined in the Indenture) has occurred, (ii) the Company has
exercised any discharge or defeasance options pursuant to the Indenture or
(iii) the Company has given a notice of redemption. In the event any
holder makes any such election pursuant to the preceding sentence, such
election will not be effective on any transferee of such holder and such
transferee shall be paid in U.S. dollars unless such transferee makes an
election pursuant to the preceding sentence; provided, however, that,
unless otherwise specified in an Annex, such election, if in effect while
funds are on deposit with the Trustee to satisfy and discharge such Note in
accordance with the provisions of the Indenture, will be effective on any
transferee of such holder. Unless otherwise specified in an Annex, payment
of principal of, premium, if any, and interest on Notes to be made in a
Foreign Currency will be made to an account maintained by the holder of
such Notes at a bank in the country which issues such Foreign Currency (or,
if such Foreign Currency is a composite currency, at a bank outside the
United States that accepts deposits in such Foreign Currency).
Unless otherwise specified in an Annex, the amount of U.S. dollars
payable in respect of a Note denominated in a Foreign Currency shall be
determined by the Exchange Rate Agent based on the indicative quotation in
The City of New York selected 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 that yields the least number of U.S. dollars upon
conversion of such Foreign Currency. Unless otherwise specified in an
Annex, such selection shall be made from among the quotations appearing on
the bank composite or multi-contributor pages of the Reuters Monitor
Foreign Exchange Service or, if not available, the Telerate Monitor Foreign
Exchange Service. If such quotations are unavailable from either such
foreign exchange service, such selection shall (unless otherwise specified
in an Annex) be made from the quotations received by the Exchange Rate
Agent from no more than three nor less than two recognized foreign exchange
dealers in The City of New York selected by the Exchange Rate Agent and
approved by the Company (one of which may be the Exchange Rate Agent) for
the purchase by the quoting dealer, for settlement on such payment date, of
the aggregate amount of such Foreign Currency payable on such payment date
in respect of all Notes denominated in such Foreign Currency and for which
the applicable dealer commits to execute a contract. If no such bid
quotations are available, payments shall be made in the Foreign Currency.
Unless otherwise specified in an Annex, if payment on a Note is
required to be made in a Foreign Currency and such currency is unavailable
to the Company for making payments thereof due to the imposition of
exchange controls or other circumstances beyond the Company's control, or
is no longer used by the government of the country which issued such
currency or for the settlement of transactions by public institutions of or
within the international banking community, the Company will be entitled to
make payments with respect to such Note in U.S. dollars until such Foreign
Currency is again available or so used. The amount so payable on any date
in such Foreign Currency shall be converted into U.S. dollars at a rate
determined by the Exchange Rate Agent on the basis of the noon buying rate
in The City of New York for cable transfers in the Foreign Currency as
certified for customs purposes by the Federal Reserve Bank of New York (the
"Market Exchange Rate") for such Foreign Currency on the second Business
Day prior to such payment date, or on such other basis as shall be
specified in an Annex. In the event such Market Exchange Rate is not then
available, the Company will be entitled to make payments in U.S. dollars,
(i) if such Foreign Currency is not a composite currency, on the basis of
the most recently available Market Exchange Rate for such Foreign Currency,
or (ii) if such Foreign Currency is a composite currency, including,
without limitation, the ECU, in an amount determined by the Exchange Rate
Agent to be the sum of the results obtained by multiplying the number of
units of each component currency of such composite currency, as of the most
recent date on which such composite currency was used, by the Market
Exchange Rate for such component currency on the second Business Day prior
to such payment date (or if such Market Exchange Rate is not then
available, by the most recently available Market Exchange Rate for such
component currency, or as otherwise specified in an Annex). Any payment in
respect of such Note made under such circumstances in U.S. dollars will not
constitute an Event of Default under the Indenture.
If the official unit of any component currency is altered by way of
combination or subdivision, the number of units of that currency as a
component 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 components 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 that
original component currency as a component shall be replaced by the amounts
of such two or more currencies having an aggregate value on the date of
division equal to the amount of the former component currency immediately
before such division.
In the event of an official redenomination of the Specified Currency,
the Denominated Currency, the Indexed Currency, the Face Amount Currency or
the Optional Payment Currency (including without limitation, an official
redenomination of any such currency that is a composite currency), the
obligations of the Company to make payments in or with reference to such
currency shall, in all cases, be deemed immediately following such
redenomination to be obligations to make payments in or with reference to
that amount of redenominated currency representing the amount of such
currency immediately before such redenomination. Except to the extent of
any adjustment of the amount of principal or premium, if any, or interest
on Currency Indexed Notes, other Indexed Notes or Dual Currency Notes
provided in or pursuant to Section 6, 7 or 8 and except as otherwise
provided in an Annex or in the Indenture, there shall be no adjustment to
any amount payable under this Note as a result of (a) any change in the
value of the Specified Currency thereof relative to any other currency due
solely to fluctuations in exchange rates or (b) any redenomination of any
component currency of any composite currency (unless such composite
currency is itself officially redenominated).
Section 16. Event of Default; Acceleration.
If an Event of Default with respect to the Notes of this series
shall occur and be continuing, the principal of all of the Notes may be
declared due and payable in the manner and with the effect provided in the
Indenture. If the principal of any Original Issue Discount Note is
declared to be due and payable immediately, the amount of principal due and
payable with respect to such Note shall be limited to the amount equal to
(i) the sum of the aggregate principal amount of such Note multiplied by
the price (expressed as a percentage of the aggregate principal amount) at
which such Note will be issued (the "Issue Price") plus (ii) the original
issue discount accrued from the date of issue to the date of declaration,
which accrual shall be calculated using the "interest method" computed in
accordance with generally accepted accounting principles in effect on the
date of declaration. An "Original Issue Discount Note" means (i) a Note,
including any zero-coupon Note, that has a stated redemption price at
maturity that exceeds the initial offering price to the public at which a
substantial amount of an offering is sold by at least 0.25% of its
principal amount multiplied by the number of full years from the Original
Issue Date to the Stated Maturity for such Note and which is designated as
a Discounted Note in the terms of such Note pursuant to the Indenture, and
(ii) any other Note designated by the Company as issued with original issue
discount for United States federal income tax purposes. If the principal
of any Currency Indexed Note, other Indexed Note or Dual Currency Note is
declared to be due and payable immediately, the amount of principal due and
payable with respect to such Note shall be limited to the respective
amounts determined in the manner provided in Section 6, 7 or 8 or in an
Annex.
Section 17. Modification of Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment or modification thereof at any time by the Company, the
Guarantor and the Trustee with the consent of the holders of more than 50%
in principal amount of the Securities at the time outstanding of each
series issued under the Indenture to be affected thereby. The Indenture
also contains provisions permitting the holders of specified percentages in
principal amount of the Securities of each series at the time outstanding,
on behalf of the holders of all Securities of that series, to waive
compliance by the Company and the Guarantor with certain provisions of the
Indenture and certain past defaults under the Indenture and their
consequences with respect to such series. 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 of any Note 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.
Section 18. Obligations Absolute.
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 the principal of and interest
on this Note at the times, place and rate, and in the coin or currency,
herein and in the Indenture prescribed.
Section 19. Authorized Denominations.
The authorized denominations of this Note, if denominated in U.S.
dollars, shall be U.S. $1,000 or any integral multiple of U.S. $1,000. The
authorized denominations of this Note, if denominated in a Foreign
Currency, shall be as set forth on the face hereof or in an Annex.
Section 20. Registration of Transfer; Exchange.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Note is registrable in the Security
Register maintained by the Security Registrar for this series (initially,
The Bank of New York in The City of New York). Every Note presented or
surrendered for registration of transfer shall be duly endorsed, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar for such series duly executed, by the
holder hereof or its attorney duly authorized in writing. Upon surrender
for registration of transfer, one or more new Notes of any authorized
denominations, of this same series and of like tenor and terms and for the
same aggregate principal amount, shall be issued in the name or names of
the designated transferee or transferees.
The Company shall not be required (i) to issue, register the
transfer of or exchange Notes to be redeemed for a period of 15 days
preceding the date of the mailing of the notice of redemption or (ii) to
register the transfer of or to exchange any such Note or portion thereof
selected for redemption, except the unredeemed portion of any such Note
being redeemed in part.
No service charge shall be made for any such registration of
transfer or exchange of Notes, 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 a Note for registration
of transfer, the Company, the Guarantor, the Trustee and any agent of the
Company, the Guarantor or the Trustee may treat the person in whose name
this Note is registered as the owner hereof for all purposes whether or not
this Note be overdue and neither the Company, the Guarantor, the Trustee
nor any such agent shall be affected by notice to the contrary.
Section 21. Defeasance.
Certain of the Company's and the Guarantor's obligations under the
Indenture with respect to Notes of any series, may be terminated if the
Company or the Guarantor irrevocably deposits with the Trustee money or
Government Obligations sufficient to pay and discharge the entire
indebtedness on all Notes of such series, as provided in the Indenture.
Section 22. Headings.
The headings set forth in this Note are for convenience of
reference only and shall not affect the meaning or interpretation of this
Note.
Section 23. Governing Law.
The Indenture and the Notes are governed by and construed in
accordance with the laws of the State of New York.<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay the within Note (or portion hereof specified below)
pursuant to its terms at a price equal to the applicable Repayment Price
thereof together with interest to the Repayment Date, to the undersigned
at--
(Please print or typewrite name and address of the undersigned)
If less than the entire principal amount of the within Note is to
be repaid, specify the portion thereof which the holder elects to have
repaid ; and specify the denomination or denominations
(which shall be in authorized denominations) of the Notes to be issued to
the holder for the portion of the within Note not being repaid (in the
absence of any such specification, one such Note shall be issued for the
portion not being repaid):
Date: (Signature)
<PAGE>
GUARANTEE
FOR VALUE RECEIVED, NYNEX Corporation, a Delaware corporation (the
"Guarantor"), hereby unconditionally guarantees to each holder of a Note
authenticated and delivered by the Trustee, and to the Trustee on behalf of
each such holder, the due and punctual payment of the principal of (and
premium, if any) and interest, if any, on each such Note and the due and
punctual payment of any sinking fund payments provided for pursuant to the
terms of such Note when and as the same shall become due and payable,
whether at the Stated Maturity, by declaration of acceleration, call for
redemption or otherwise, in accordance with the terms of such Note and of
the Indenture, dated as of April 1, 1990 from NYNEX Capital Funding Company
(the "Company") and the Guarantor to The Bank of New York, as Trustee (the
"Trustee"), as amended by a First Supplemental Indenture dated as of March
3, 1994 (as so amended, the "Indenture"). In case of the failure of the
Company punctually to make any such payment of principal (or premium, if
any) or interest, if any, or sinking fund payment, the Guarantor hereby
agrees to cause any such payment to be made punctually when and as the same
shall become due and payable, whether at the Stated Maturity or by
declaration of acceleration, call for redemption or otherwise, and as if
such payment were made by the Company.
The Guarantor hereby agrees that its obligations hereunder shall be
unconditional, irrespective of the validity, regularity or enforceability
of such Note or the Indenture, the absence of any action to enforce the
same, any waiver or consent by the holder of such Note or by the Trustee
with respect to any provisions thereof or of the Indenture, the obtaining
of any judgment against the Company or any action to enforce the same or
any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantor hereby waives
the benefits of division and discussion, diligence, presentment, demand of
payment, filing of claims with a court in the event of insolvency or
bankruptcy of the Company, any right to require a proceeding first against
the Company, protest or notice with respect to such Note or the
indebtedness evidenced thereby or with respect to any sinking fund payment
required pursuant to the terms of such Note and all demands whatsoever, and
covenants that this Guarantee will not be discharged except by complete
performance of the obligations contained in the Notes and in this
Guarantee. This Guarantee is a guarantee of payment and not collection.
If the Trustee or the holder of any Note is required by any court or
otherwise to return to the Company or the Guarantor, or any custodian,
receiver, liquidator, trustee, sequestrator or other similar official
acting in relation to the Company or the Guarantor, any amount paid to the
Trustee or such holder in respect of a Note, this Guarantee, to the extent
theretofore discharged, shall be reinstated in full force and effect. The
Guarantor further agrees, to the fullest extent that it lawfully may do so,
that, as between the Guarantor on the one hand, and the holders and the
Trustee on the other hand, the maturity of the obligations guaranteed
hereby may be accelerated as provided in Article Five of the Indenture for
the purposes of this Guarantee, notwithstanding any stay, injunction or
other prohibition extant under any applicable bankruptcy law preventing
such acceleration in respect of the obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the holders of
the Notes of a particular series against the Company in respect of any
amounts paid by the Guarantor on account of such Note pursuant to the
provisions of this Guarantee or the Indenture; provided, however, that the
Guarantor shall not be entitled to enforce or to receive any payments
arising out of, or based upon, such right of subrogation until the
principal of (and premium, if any) and interest, if any, on all Notes of
such series issued hereunder shall have been paid in full.
The Guarantor hereby certifies and warrants that all acts,
conditions and things required to be done and performed and to have
happened prior to the creation and issuance of this Guarantee and to
constitute the same as the legal, valid and binding obligation of the
Guarantor enforceable in accordance with its terms, have been done and
performed and have happened in due and strict compliance with applicable
laws.
The delivery of any Note by the Trustee, after the authentication
thereof, shall constitute due delivery of this Guarantee endorsed thereon
on behalf of the Guarantor. The Guarantor hereby agrees that this
Guarantee shall remain in full force and effect notwithstanding any failure
to endorse on each Security a notation of this Guarantee.
This Guarantee shall be governed by and construed in accordance
with the laws of the State of New York.
All terms used in this Guarantee which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
IN WITNESS WHEREOF, NYNEX CORPORATION has caused this Guarantee to
be duly executed in its corporate name by the facsimile signature of one of
its officers thereunto duly authorized and has caused a facsimile of its
corporate seal to be affixed hereunto or imprinted or otherwise reproduced
hereon.
Dated as of: , 19
NYNEX Corporation
By:
Authorized Officer
[SEAL]
<PAGE>
ABBREVIATIONS
The following abbreviations, when used in the inscription on the
face of this instrument, shall be construed as though they were written out
in full according to applicable laws or regulations:
TEN COM --as tenants in common
TEN ENT --as tenants by the entireties
IT TEN --as joint tenants with right of
survivorship and not
as tenants in common
UNIF GIFT MIN ACT --........................................
Custodian...............................
(Cust) (Minor)
Under Uniform Gifts to Minors
Act......................................
(State)
Additional abbreviations may also be used though not in the above list.
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
the within Note and all rights thereunder, hereby irrevocably constituting
and appointing attorney to transfer said Note on the books
of the Company, with full power of substitution in the premises.
Dated:
Signature
NOTICE: THE SIGNATURE TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS
WRITTEN UPON THE FACE OF THE WITHIN INSTRUMENT IN EVERY PARTICULAR, WITHOUT
ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. THE SIGNATURE SHOULD BE
GUARANTEED.
NYNEX Capital Funding Company
Medium-Term Notes, Series B
AUTHORIZED OFFICER'S CERTIFICATE
Pursuant to Sections 201 and 301 of the Indenture, dated as of
April 1, 1990, as amended by a First Supplemental Indenture dated as of
March 3, 1994 (as so amended, the "Indenture"), from NYNEX Capital Funding
Company (the "Company") and NYNEX Corporation (the "Guarantor") to The Bank
of New York, as trustee (the "Trustee"), and pursuant to the Resolutions
(as defined in Paragraph A hereof), the undersigned officer does hereby
certify as follows:
A. He is the duly elected or appointed President of the Company,
acting pursuant to resolutions adopted by the Board of Directors of the
Company on April 18, 1990, September 15, 1993 and November 18, 1993, and
pursuant to resolutions adopted by the Board of Directors of the Guarantor
on April 19, 1990, September 15, 1993 and November 18, 1993 (such
resolutions of the Boards of Directors of the Company and the Guarantor
being attached hereto as Annex A and being herein called the
"Resolutions").
B. By this determination of the President of the Company, there
is hereby established a series of Securities to be issued under the
Indenture, which series of Securities shall have the terms set forth in the
Indenture, in the Notes (as defined below), in the Prospectus, dated
January 27, 1994, as supplemented by the Prospectus Supplement, dated March
3, 1994 relating to the Notes (collectively, the "Prospectus"), and in
Instructions (as defined in Paragraph E below), which terms include the
following (the numbers of the sub-paragraphs below corresponding to the
numbered sub-sections of Section 301 of the Indenture):
1. The title of the Securities of the series is Medium-Term
Notes, Series B, which title may include any other appropriate
designations as an Authorized Officer (as defined in Paragraph E
below) shall determine (the "Notes"). The Notes may be issued from
time to time by the Company, subject to the terms and provisions
hereof or incorporated or described herein.
2. The aggregate principal amount of the Notes which may be
authenticated and delivered under the Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 304,
305, 306, 906 or 1107 of the Indenture) shall be limited to such
aggregate principal amount as shall be sufficient to result in gross
proceeds to the Company of U.S. $1,500,000,000, or the equivalent
thereof in other currencies or currency units (including composite
currencies); subject to the foregoing, the aggregate principal amount
of Notes to be issued and sold from time to time shall be as
determined by one more Authorized Officers on behalf of the Company.
3. The Notes shall be issuable only as Registered Securities.
4. The date or dates (or manner of determination) on which the
principal of each of the Notes is payable shall be any Business Day or
Business Days nine months or more from the date of issue of such Note
and shall be as set forth in the applicable Pricing Supplement (as
defined in the Prospectus), the Prospectus, such Note and/or the
Instructions relating to such Note.
5. The rate or rates (or the manner of calculation or
determination), at which each of the Notes shall bear interest (if
any) and the date or dates from which such interest shall accrue and
the basis for computing such interest, shall be as set forth in the
applicable Pricing Supplement, the Prospectus, the Note and/or the
Instructions relating to such Note. Unless otherwise set forth in the
applicable Pricing Supplement, any Note and/or the Instructions
relating to such Note, (A) the Interest Payment Dates for such Note
shall be the dates specified in the Form of Note (as defined in
Paragraph C below) and the Prospectus as applicable to such Note,
provided that the first payment of interest on any Fixed Rate Note (as
defined in the Form of Note) originally issued between a Regular
Record Date and an Interest Payment Date will be made on the Interest
Payment Date specified in the Form of Note and the Prospectus as
applicable to such Note; and (B) the Regular Record Date for the
interest payable on any Interest Payment Date for such Note shall be
the date specified in the Form of Note and the Prospectus as
applicable to such Note.
6. Unless otherwise specified in the applicable Pricing
Supplement, any Note and/or the Instructions relating to such Note,
(A) the place or places where the principal of (and premium, if any)
and interest, if any, on the Notes shall be payable and where Notes
may be surrendered for registration of transfer or exchange and where
notices and demands to or upon the Company in respect of the Notes and
the Indenture may be served shall be as set forth in the Indenture or
in the Instructions related to such Note; (B) the place or places
where notices and demands to or upon the Company in respect of the
Notes and the Indenture may be served shall be NYNEX Capital Funding
Company, 1113 Westchester Avenue, White Plains, New York 10604,
Attention: Secretary; and (C) interest shall be payable as specified
in Section 307 of the Indenture, in the Form of Note and in the
Prospectus; provided that, while the Notes are registered in the name
of the Depositary or its nominee, all payments in respect of the Notes
shall be made to the Depositary or its nominee in accordance with the
rules, procedures and practices of the Depositary from time to time in
effect, which rules, procedures and practices are expected to provide
that principal and any premium and interest payable at Maturity (as
defined in the Indenture) will be payable by wire transfer of
immediately available funds to an account specified by the Depositary,
and payments of interest, other than at Maturity, will be made in
same-day funds in accordance with existing arrangements between the
Trustee or any Paying Agent and the Depositary.
7. The period or periods within which, the price or prices at
which, the currency or currency unit in which, and the terms and
conditions upon which any Note may be redeemed at the option of the
Company shall be as set forth in the applicable Pricing Supplement,
such Note and/or the Instructions relating to such Note, and such
terms may, as permitted by Article Eleven of the Indenture, be
different from the terms provided in such Article Eleven.
8. The obligation of the Company, if any, to redeem or purchase
such Notes pursuant to any sinking fund or analogous provision, or at
the option of a Holder thereof, and the period or periods within
which, the price or prices at which, the currency or currency unit in
which, and the terms upon which, the Notes shall be redeemed or
purchased, in whole or in part pursuant to such obligation, and such
terms may, as permitted by Articles Eleven and Twelve of the
Indenture, be different from the terms provided in such Articles
Eleven and Twelve.
9. If the currency in which any Note shall be issuable is U.S.
dollars, the denominations in which such Note shall be issuable, if
other than denominations of $1,000 and any integral multiple thereof,
shall be as set forth in the applicable Pricing Supplement, such Note
and/or the Instructions relating to such Note. If the currency or
currency unit in which any Note shall be issuable is other than U.S.
dollars, the denominations in which such Note shall be issuable shall
be as set forth in the applicable Pricing Supplement, such Note and/or
the Instructions relating to such Note.
10. If other than the principal amount thereof, the portion of
the principal amount of any Note which shall be payable upon a
declaration of acceleration of the Maturity thereof pursuant to
Section 502 of the Indenture shall be as set forth in the applicable
Pricing Supplement, such Note and/or the Instructions relating to such
Note.
11. The applicable Pricing Supplement, any Note and/or the
Instructions relating to such Note shall specify any Events of Default
or covenants of the Company with respect to such Note in addition to
the Events of Default and covenants set forth in the Indenture.
12. Not applicable.
13. The applicable Pricing Supplement, any Note and/or the
Instructions relating to such Note shall specify the currency or
currency unit, if other than U.S. dollars, in which payment of the
principal of (and premium, if any) or interest, if any, on the Notes
shall be made or in which the Notes shall be denominated and the
particular provisions applicable thereto in accordance with, in
addition to or in lieu of the provisions of Section 311 of the
Indenture.
14. If the principal of (and premium, if any) and interest, if
any, on any Note are to be payable, at the election of the Company or
a Holder thereof, in a currency or currency unit other than that in
which such Note is denominated or stated to be payable, in accordance
with provisions in addition to or in lieu of, or in accordance with
the provisions of, Section 311 of the Indenture, the applicable
Pricing Supplement, such Note and/or the Instructions relating to such
Note shall specify the period or periods within which (including the
Election Date (as defined in the Indenture)), and the terms and
conditions upon which, such election may be made, and the time and
manner of determining the exchange rate between the currency or
currency unit in which such Note is denominated or stated to be
payable and the currency or currency unit in which such Note is to be
so payable.
15. The initial Currency Determination Agent shall be The Bank
of New York, and the initial Calculation Agent (as defined in the Form
of Note) shall be The Bank of New York. The applicable Pricing
Supplement, any Note and/or the Instructions relating to such Note
shall designate any other agent for purposes of making determinations
or calculations with respect to such Note or otherwise.
16. If any Note is an Indexed Security, the applicable Pricing
Supplement, such Note and/or the Instructions relating to such Note
shall specify the manner in which the amount of payments of principal
of (and premium, if any) or interest, if any, on such Notes shall be
determined and any other special terms with respect to such Note.
17. If any Note does not bear interest, the applicable Pricing
Supplement, such Note and/or the Instructions relating to such Note
shall specify the applicable dates for purposes of Section 701 of the
Indenture.
18. Unless otherwise specified in the applicable Pricing
Supplement, any Note and/or the Instructions relating to such Note,
the provisions for the satisfaction and discharge of the Indenture set
forth in Section 401 of the Indenture shall be applicable to such
Note.
19. Unless otherwise specified in the applicable Pricing
Supplement, any Note and/or the Instructions relating to such Note,
the date as of which any global Security representing such Note shall
be dated shall be the date of original issuance of such Note.
20. Unless otherwise specified in the applicable Pricing
Supplement, any Note and/or the Instructions relating to such Note,
(A) Section 1004 of the Indenture shall not be applicable to such
Note, and (B) Section 1011 of the Indenture shall be applicable to
such Note. The applicable Pricing Supplement, any Note and/or the
Instructions relating to such Note shall, if applicable, specify any
covenant not set forth in the Indenture which is to be applicable to
such Note and subject to Section 1010 or 1011 or both such Sections.
21. Unless otherwise specified in the applicable Pricing
Supplement, any Note and/or the Instructions relating to such Note,
The Depository Trust Company shall serve as Depositary with respect to
each Note, and each Note shall be initially issued in the form of a
fully registered global Security or Securities, registered in the name
of The Depository Trust Company or its nominee.
22. If any Note is to be issuable initially in the form of a
global Security or Securities, the circumstances under which the
global Security can be exchanged for definitive Registered Securities
shall be as set forth in Section 305 of the Indenture, and the
provisions of the ninth paragraph of said Section 305 of the Indenture
shall be applicable to such Note.
23. Not applicable.
24. Not applicable.
25. The Notes and the Guarantees (as defined in the Indenture)
to be endorsed thereon shall be substantially in the form of the Form
of Note attached hereto as Annex B. The Notes may differ from one
another as to denomination and as to any other matters provided for
herein or as set forth in the Instructions relating to any Note
pursuant to the action of an Authorized Officer acting hereunder.
26. If any Note is to be issued as a Dual Currency Security, the
applicable Pricing Supplement, such Note and/or the Instructions
relating to such Note shall specify the two currencies in either of
which any scheduled payment of principal or interest due thereon may
be made at the option of the Company and any other special terms with
respect to such Dual Currency Security.
27. If any Note is to be issued as an Amortizing Security, the
applicable Pricing Supplement, such Note and/or the Instructions
relating to such Note shall specify the amortization schedule
according to which amounts in respect of interest thereon and
principal thereof are payable over the life of such Amortizing
Security and any other special terms with respect to such Amortizing
Security.
28. If any Note is to be issued as a Discounted Security, the
applicable Pricing Supplement, such Note and/or the Instructions
relating to such Note shall designate such Note as a Discounted
Security.
29. If Section 311(b) applies to any Note, the applicable
Pricing Supplement, such Note and/or the Instructions relating to such
Note shall specify the Election Date.
30. The applicable Pricing Supplement, any Note and/or the
Instructions relating to such Note shall specify any provisions, if
other than as set forth in Section 113, relating to the payment of
principal of (and premium, if any) and interest, if any, with respect
to such Note in any case where any Interest Payment Date, Redemption
Date or Stated Maturity shall not be a Business Day at any Place of
Payment with respect to such Note.
31. Each Note shall have such additional terms (not inconsistent
with the provisions of the Indenture) as are set forth in the Form of
Note and the Prospectus and as shall be set forth in the applicable
Pricing Supplement, such Note and/or the Instructions relating to such
Note.
C. Pursuant to Section 201 of the Indenture, the undersigned
hereby establishes the form of Note and the form of Guarantee annexed
hereto as Annex B (collectively, the "Form of Note") as the form of the
Notes and the form of the Guarantees, respectively.
D. The Resolutions constitute "Board Resolutions" (as defined in
the Indenture) of the Company and the Guarantor.
E. Certain additional terms of the Notes not set forth herein
but required to be established or specified by or pursuant to Board
Resolutions of the Company and the Guarantor shall be established or
specified from time to time by any of the Chairman, the President, the
Executive Vice President-Finance or the Vice President and Treasurer of the
Company (each an "Authorized Officer"), as evidenced by the instructions
(the "Instructions") delivered from time to time by or on behalf of the
Company and the Guarantor to the Trustee, by telecopy or hand delivery, in
each case providing the applicable information referred to above and any
such additional terms.
F. All terms in this Authorized Officer's Certificate which are
defined in the Indenture or the Prospectus shall have the meanings assigned
to them in the Indenture or the Prospectus, as the case may be.
IN WITNESS WHEREOF, the undersigned has hereunto executed this
Authorized Officer's Certificate as of this ____
day of March 1994.
Name: C. P. Turner
Title: President
