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EXHIBIT 4(k)
UNLESS THIS SECURITY IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (THE "DEPOSITARY") (00 XXXXX XXXXXX, XXX XXXX, XXX
XXXX) TO THE ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY SECURITY ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY
AND ANY PAYMENT IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE SENIOR INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE OF A DEPOSITARY. THIS SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED
IN THE NAME OF A PERSON OTHER THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE
LIMITED CIRCUMSTANCES DESCRIBED IN THE SENIOR INDENTURE AND MAY NOT BE
TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A NOMINEE OF SUCH DEPOSITARY
OR BY A NOMINEE OF SUCH DEPOSITARY TO SUCH DEPOSITARY OR ANOTHER NOMINEE OF SUCH
DEPOSITARY OR BY SUCH DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR OF SUCH
DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR.
REGISTERED REGISTERED PRINCIPAL
No. AMOUNT: $
CUSIP No.: 115885 AN 5
XXXXXXXX-XXXXXX INDUSTRIES, INC.
6.08% Market Value Put securities(SM) ("MVPs"SM)
ORIGINAL ISSUE DATE: January 15, 1999 INTEREST RATE TO
REMARKETING DATE: 6.08%
REMARKETING DATE: January 18, 2000 MATURITY DATE:
January 18, 2002, subject to
adjustment as set forth herein
and reflected in the records of
the Trustee.
ADDITIONAL REMARKETING DATE: INTEREST PAYMENT DATE(S):
To be determined as set forth herein and
reflected in the records of the Trustee. January 18 and July 15 until
January 18, 2000 and thereafter,
as set forth herein and reflected
in the records of the Trustee.
-------------------------
"Market Value Put securities" and "MVPs" are service marks owned by First
Chicago Capital Markets, Inc.
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INTERIM PERIOD INTEREST RATE: AUTHORIZED DENOMINATIONS:
To be determined as set forth herein and $1,000 and integral multiples
reflected in the records of the Trustee. thereof.
INTEREST RATE TO MATURITY:
To be determined as set forth herein and
reflected in the records of the Trustee.
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Xxxxxxxx-Xxxxxx Industries, Inc., a Delaware corporation (the
"Company"), which term includes any successor under the Senior Indenture
hereinafter referred to, for value received, hereby promises to pay to Cede &
Co., a nominee of The Depository Trust Company ("DTC"), or its registered
assigns, the principal amount of Two Hundred Million Dollars ($200,000,000), on
the Maturity Date specified above (or any earlier redemption date or repurchase
date) (each such Maturity Date, redemption date or repurchase date being
hereinafter referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon, at the Interest Rate per
annum specified above to January 18, 2000 (the "Remarketing Date"), and
thereafter, subject to the terms and conditions set forth herein, at the
Interest Rate determined by the Calculation Agent (as defined below) in
accordance with the procedures set forth below, until the principal hereof is
paid or duly made available for payment. The Company will pay interest in
arrears on each Interest Payment Date, if any, specified above, commencing with
the first Interest Payment Date next succeeding the Original Issue Date
specified above, and on the Maturity Date; provided, however, that if the
Original Issue Date occurs between a Record Date (as defined below) and the
related Interest Payment Date, interest payments will commence on the Interest
Payment Date immediately following the next succeeding Record Date to the holder
of this MVPs on such next succeeding Record Date. Interest on the MVPs accruing
during the period from and including the Original Issue Date to but excluding
the Remarketing Date will be payable semi-annually on January 18 and July 15 of
each year, commencing July 15, 1999. Interest on the MVPs accruing from the
Remarketing Date (if such date is not the Interim Period Remarketing Date (as
defined herein)) or the Additional Remarketing Date (as defined herein) (if the
Remarketing Date is the Interim Period Remarketing Date) will be payable
semi-annually on each day that is a six-month anniversary of such date. Interest
on the MVPs accruing during the period from and including the Remarketing Date
(if that date is the Interim Period Remarketing Date) to but excluding the
Additional Remarketing Date (the "Interim Period"), if applicable, will be
payable only on the Additional Remarketing Date. Each day on which interest is
scheduled to be paid is herein referred to as an "Interest Payment Date."
Interest on this MVPs will be computed on the basis of a 360-day year of twelve
30-day months, except that interest accruing during the Interim Period, if any,
will be computed on the basis of the actual number of days in such period over a
360-day year.
If, pursuant to the Remarketing and Interest Calculation Agreement,
dated as of the date hereof (the "Remarketing and Interest Calculation
Agreement"), among The First Chicago National Bank, as Call Holder (the "Call
Holder"), First Chicago Capital Markets, Inc., as Calculation Agent (the
"Calculation Agent"), and the Company, the Call Holder elects to remarket the
MVPs, then, except as otherwise set forth herein, (i) this MVPs shall be subject
to mandatory tender to the Call Holder for remarketing on the Remarketing Date
and, in the event of the Interim Period, on the Additional Remarketing Date, on
the terms and subject to the conditions set forth herein, and (ii) on and after
the Remarketing Date, this MVPs shall bear interest at the rate or rates
determined by the Calculation Agent in accordance with the procedures set forth
in Section 4 herein. The Remarketing Date and the Additional Remarketing Date
shall be the remarketing dates for the MVPs. The duties of each of the
Calculation Agent and the Call Holder set forth herein shall be performed
pursuant to the Remarketing and Interest Calculation Agreement.
Interest on this MVPs will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the
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Original Issue Date, if no interest has been paid or duly provided for) to, but
excluding, the applicable Interest Payment Date or the Maturity Date, as the
case may be. The interest so payable, and punctually paid or duly provided for,
on any Interest Payment Date or the Maturity Date will, subject to certain
exceptions described herein, be paid to the person in whose name this MVPs (or
one or more predecessor MVPs) is registered at the close of business on the
fifteenth calendar day (whether or not a Business Day, as defined below)
immediately preceding such Interest Payment Date or the Maturity Date except
that, in the case of the Interest Payment Date relating to the Interim Period,
interest will be payable to the persons to whom principal is payable on the
Additional Remarketing Date (each such date, a "Record Date"). Any such interest
not so punctually paid or duly provided for ("Defaulted Interest") will
forthwith cease to be payable to the Holder on any Record Date, and shall be
paid to the person in whose name this MVPs is registered at the close of
business on a special record date (the "Special Record Date") for the payment of
such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the Holder of this MVPs by the Trustee not less
than 10 calendar days prior to such Special Record Date or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this MVPs may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the Senior
Indenture.
Principal of and premium, if any, on this MVPs will be payable when due
upon presentation and surrender of this MVPs at the corporate trust office of
the Trustee maintained for that purpose in the City of Dallas, Texas currently
located at 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, or at such other
paying agency in the Borough of Manhattan, The City of New York, as the Company
may determine. Payment of interest due on any Interest Payment Date or the
Maturity Date will be made by check mailed to the address of the person entitled
thereto as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; provided, however, that a holder of U.S.
$10,000,000 or more in aggregate principal amount of MVPs will be entitled to
receive interest payments on such Interest Payment Date or the Maturity Date by
wire transfer of immediately available funds if appropriate wire transfer
instructions have been received in writing by the Trustee not less than 15
calendar days prior to such Interest Payment Date or the Maturity Date. Any such
wire transfer instructions received by the Trustee shall remain in effect until
revoked by such holder. Notwithstanding the foregoing or any provision hereof,
if this MVPs is a Global Security (as evidenced by the legend first set forth
above and provided in the Senior Indenture), and is held in book-entry form
through the facilities of DTC, payments on this MVPs will be made to DTC or its
nominee in accordance with the arrangements then in effect between the Trustee
and DTC.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest, shall be made on the next succeeding Business Day with the same
force and effect as if it were made on the date such payment was due, and no
interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date or the Maturity Date, as the case may be, to the date
of payment on the next succeeding Business Day.
As used herein, "Business Day" means any day other than a Saturday, a
Sunday or a day on which banking institutions in The City of New York, Houston,
Texas or Chicago, Illinois are authorized or obligated by law, regulation or
executive order to close and, in the case of the
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determination of the Reference Rate (as defined below) that is based upon
deposits in U.S. dollars in London, the City of London.
The Company is obligated to make payment of principal, premium, if any,
and interest in respect of this MVPs in United States dollars.
Reference is hereby made to the further provisions of this MVPs set
forth following the Trustee's Certificate of Authentication (the "Certificate of
Authentication") set forth below.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this MVPs shall not be entitled to any benefit
under the Senior Indenture or be valid or obligatory for any purpose.
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IN WITNESS WHEREOF, Xxxxxxxx-Xxxxxx Industries, Inc. has caused this MVPs
to be duly executed.
XXXXXXXX-XXXXXX INDUSTRIES, INC.
as Issuer
By:
--------------------------------
Name:
Title:
[Corporate Seal]
Attest:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated herein referred
to in the within-mentioned Senior Indenture.
Dated: January 15, 1999 CHASE BANK OF TEXAS, NATIONAL
ASSOCIATION
as Trustee
By:
--------------------------------
Authorized Officer
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XXXXXXXX-XXXXXX INDUSTRIES, INC.
6.08% Market Value Put securities(SM) ("MVPs"SM)
1. Senior Indenture. (a) This MVPs is one of a duly authorized series
of Securities of the Company issued under a Restated Indenture, dated as of
September 1, 1991 (as amended, modified or supplemented from time to time, the
"Senior Indenture"), between the Company and Chase Bank of Texas, National
Association (formerly known as Texas Commerce Bank National Association as
successor trustee to First City, Texas-Houston, National Association, which was
formerly First City National Bank of Houston) (the "Trustee," which term
includes any successor trustee under the Senior Indenture), to which Senior
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the MVPs, and of the
terms upon which the MVPs are authenticated and delivered. The MVPs are limited
to $250,000,000 aggregate principal amount and are designated "6.08% Market
Value Put securities" ("MVPs") subject to the provisions of the Senior
Indenture. All terms used but not defined in this MVPs shall have the meanings
assigned to such terms in the Senior Indenture. Except where the context
otherwise requires, all references in this MVPs to "this MVPs," "this Security,"
"herein" or "hereof" or similar terms shall include the Senior Indenture.
(b) This MVPs is issuable only in registered form without coupons in
minimum denominations of U.S. $1,000 and integral multiples thereof.
(c) This MVPs will not be subject to any sinking fund.
2. Mandatory Tender. Provided that on a Business Day not later than
five Business Days prior to the Remarketing Date the Call Holder notifies the
Company and the Trustee of its election to purchase the MVPs on the Remarketing
Date for remarketing (the "Notification Date"), the MVPs shall be subject to
mandatory tender to the Call Holder, and the Call Holder shall be obligated to
purchase the MVPs, for remarketing on the Remarketing Date and, if such date is
designated as the Interim Period Remarketing Date, the Additional Remarketing
Date thereafter, subject in each case to the conditions described herein and set
forth in the Remarketing and Interest Calculation Agreement. The purchase price
for the tendered MVPs shall equal 100% of the principal amount thereof. From and
including the Remarketing Date (if such date is not the Interim Period
Remarketing Date) or the Additional Remarketing Date (if the Remarketing Date is
the Interim Period Remarketing Date), the MVPs will bear interest at the
Interest Rate to Maturity, determined pursuant to Section 4 hereof. During the
Interim Period, if any, the MVPs will bear interest at the Interim Period
Interest Rate determined pursuant to Section 4 hereof. If the Call Holder elects
to remarket the MVPs, the obligation of the Call Holder to purchase the MVPs on
any remarketing date is subject to the conditions specified in Section 9 of the
Remarketing and Interest Calculation Agreement. If the Call Holder purchases
MVPs on any remarketing date, it must purchase all of the MVPs. If for any
reason the Call Holder does not purchase all of the MVPs on any remarketing
date, the Company shall be required to repurchase from the Beneficial Owners
thereof, and the Beneficial Owners will be required to sell to the Company, all
the MVPs at a price equal to the principal amount thereof plus all accrued and
unpaid interest, if any, on the MVPs to such remarketing date as provided in
Section 6 hereof.
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"Beneficial Owner" shall mean each person who acquires an interest in
the MVPs which is reflected on the records of the DTC through its participants.
3. Remarketing Dates; Adjustment of Maturity Date. If the Call Holder
gives notice of its intention to purchase the MVPs on January 18, 2000, then not
later than 4:00 p.m., New York City time, on the fourth Business Day prior to
January 18, 2000, the Company, after consultation with the Call Holder, may
notify the Call Holder, the Trustee and DTC by telephone, confirmed in writing
that it elects January 18, 2000 to be the Interim Period Remarketing Date (the
"Interim Period Remarketing Date"). The Company will be eligible to make such
notification if at such time its senior unsecured debt is rated at least "Baa3"
by Xxxxx'x Investors Service, Inc. and "BBB-" by Standard & Poor's Ratings
Services (or the equivalent thereof by each such rating agency) at the time of
such notification or if the Call Holder waives this requirement in its sole
discretion. If the Company does not provide such notification, January 18, 2000
will be the only remarketing date and the Maturity Date will be January 18,
2002. If the Company provides such notification, then (i) the Additional
Remarketing Date will be one of the 26 following one-week anniversary dates of
January 18, 2000 (or if any such day is not a Business Day, the next succeeding
Business Day) designated by the Company not later than the fifth Business Day
prior to such one-week anniversary date (the "Additional Remarketing Date")
except that, if the Company fails to so designate the Additional Remarketing
Date, the Additional Remarketing Date will be the date that is the 26th week
anniversary of January 18, 2000 (or if such day is not a Business Day, the next
following Business Day) and (ii) the Maturity Date of the MVPs will be the date
that is the two-year anniversary of the Additional Remarketing Date (whether or
not a Business Day).
4. Determination of Applicable Interest Rate. From and including the
Remarketing Date (if such date is not the Interim Period Remarketing Date) or
the Additional Remarketing Date (if the Remarketing Date is designated the
Interim Period Remarketing Date) to but excluding the Maturity Date, the MVPs
will bear interest at the Interest Rate to Maturity. During the Interim Period,
if any, the MVPs will bear interest at the Interim Period Interest Rate.
(a) Interest Rate to Maturity. Subject to the Call Holder's
election to remarket the MVPs as provided in Section 2 hereof and
subject further to Sections 4(c) and 7 hereof and the Remarketing and
Interest Calculation Agreement, the Interest Rate to Maturity shall be
determined by the Calculation Agent by 3:30 p.m., New York City time,
on the third Business Day preceding the Remarketing Date (if such date
is not the Interim Period Remarketing Date) or the Additional
Remarketing Date (in the event of the Interim Period) (subject to
Section 4(c) hereof, the "Determination Date") to the nearest one
hundred-thousandth (0.00001) of one percent per annum by soliciting
firm committed bids, expressed as a spread over the Base Rate, to
purchase all outstanding MVPs at the Dollar Price, and by selecting the
lowest such firm committed bid (regardless of whether each of the
Reference Corporate Dealers actually submits bids). The Interest Rate
to Maturity will be equal to the sum of 4.68% (the "Base Rate") plus
the Applicable Spread. The Interest Rate to Maturity announced by the
Calculation Agent, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and Holders of the MVPs, the Call
Holder, the Company and the Trustee.
"Applicable Spread" shall mean the lowest bid expressed as a
spread (in the form of a percentage or in basis points) above the Base
Rate, obtained by the Calculation
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Agent on the Determination Date from the bids quoted by up to five
Reference Corporate Dealers for the full aggregate principal amount of
the MVPs at the Dollar Price, but assuming (i) an issue date equal to
the Remarketing Date (if such date is not the Interim Period
Remarketing Date) or the Additional Remarketing Date (in the event of
an Interim Period), with settlement on such date without accrued
interest, (ii) a maturity date equal to the Maturity Date of the MVPs,
and (iii) a stated annual interest rate, payable semi-annually, equal
to the Base Rate plus the spread bid by the applicable Reference
Corporate Dealer.
"Dollar Price" shall mean, with respect to the MVPs, the
present value, as of the Remarketing Date, of the Remaining Scheduled
Payments discounted to the Remarketing Date, on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months), at the
Treasury Rate, except that in the case of the Additional Remarketing
Date, the Dollar Price will be the Adjusted Dollar Price.
"Adjusted Dollar Price" shall mean, with respect to the
Additional Remarketing Date, the Dollar Price as of the Remarketing
Date (determined by the Calculation Agent on the third Business Day
prior to the Remarketing Date) plus the product of (i) such Dollar
Price less the aggregate principal amount of the MVPs outstanding as of
the Remarketing Date, (ii) the weighted average per annum Interim
Period Interest Rate for the Interim Period, and (iii) the number of
days in the Interim Period divided by 360.
"Reference Corporate Dealers" shall mean each of First Chicago
Capital Markets, Inc., its successors and four other leading dealers of
publicly traded debt securities of the Company selected by the Call
Holder.
"Treasury Rate" shall mean the rate per annum equal to the
semi-annual equivalent yield to maturity or interpolated (on a 30/360
day count basis) yield to maturity of the Comparable Treasury Issue for
value on the Remarketing Date, assuming a price for the Comparable
Treasury Issue (expressed as a percentage of its principal amount),
equal to the Comparable Treasury Price.
"Comparable Treasury Issue" shall mean the United States
Treasury security selected by the Calculation Agent as having an actual
or interpolated maturity comparable to the remaining term of the MVPs.
"Comparable Treasury Price" shall mean, (a) the offer price
for the Comparable Treasury Issue (expressed as a percentage of its
principal amount) on the third Business Day prior to the Remarketing
Date, as set forth on Telerate Page 500 (as defined below), adjusted to
reflect settlement on the Remarketing Date if prices quoted on Telerate
Page 500 are for settlement on any date other than the Remarketing
Date, or (b) if such page (or any successor page) is not displayed or
does not contain such offer price on such Business Day, (i) the average
of five Reference Treasury Dealer Quotations (as defined below) for
such Remarketing Date, excluding the highest and lowest of such
Reference Treasury Dealer Quotations (unless there is more than one
highest or lowest quotation, in which case only one such highest and/or
lowest quotation shall be excluded), or (ii) if the Calculation Agent
obtains fewer than four such Reference Treasury Dealer Quotations, the
average of all such Reference Treasury Dealer Quotations.
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"Telerate Page 500" means the display designated as "Telerate
Page 500" on Bridge Telerate, Inc. (or such other page as may replace
Telerate Page 500 on such service) or such other service displaying the
offer prices specified in (a) above as may replace Bridge Telerate,
Inc. The Calculation Agent shall have the discretion to select the time
at which the Comparable Treasury Price is determined on the third
Business Day prior to the Remarketing Date.
"Reference Treasury Dealer Quotations" shall mean, with
respect to each Reference Treasury Dealer, the offer price for the
Comparable Treasury Issue (expressed in each case as a percentage of
its principal amount) for settlement on the Remarketing Date quoted in
writing to the Calculation Agent by such Reference Treasury Dealer by
3:30 p.m., on the third Business Day immediately preceding the
Remarketing Date.
"Reference Treasury Dealer" shall mean each of First Chicago
Capital Markets, Inc., Chase Securities Inc., NationsBanc Xxxxxxxxxx
Securities LLC, Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co.
Incorporated and their respective successors; provided, however, that
if any of the foregoing or their affiliates shall cease to be a primary
U.S. Government securities dealer (a "Primary Treasury Dealer"), the
Calculation Agent shall substitute therefor another Primary Treasury
Dealer.
"Remaining Scheduled Payments" shall mean, with respect to the
MVPs, the remaining scheduled payments of the principal thereof and
interest thereon, calculated at the Base Rate only and assuming (i) a
maturity date equal to January 18, 2002, and (ii) that the Company did
not elect the Remarketing Date to be the Interim Period Remarketing
Date.
(b) Determination of Interim Period Interest Rate. The
interest rate for the Interim Period, if any, will be reset on each
Interest Reset Date during the Interim Period and will be equal to the
Reference Rate in respect of the applicable Interest Reset Date plus
the Basic Spread, in each case as calculated by the Calculation Agent
(the "Interim Period Interest Rate"). The Wednesday of each week during
the Interim Period will be an "Interest Reset Date." The "Interest
Determination Date" applicable to an Interest Reset Date will be the
second Business Day preceding such Interest Reset Date. The interest
rate in effect from and including the Interim Period Remarketing Date
(which is the first day of the Interim Period) to but excluding the
first Interest Reset Date during such Interim Period will be determined
as if the Interim Period Remarketing Date were an Interest Reset Date
and the Interest Determination Date for such Interest Reset Date were
the second Business Day prior to the Interim Period Remarketing Date.
The "Reference Rate" shall mean, with respect to the Interim
Period, one of the following reference rates selected by the Company
and notified to the Calculation Agent no later than four Business Days
prior to the Interim Period Remarketing Date: (i) the per annum rate
for deposits in U.S. dollars for a period of one week shown on Telerate
page 3750 (or any successor page) at 11:00 a.m., London time, on the
applicable Interest Determination Date, (ii) the per annum rate equal
to the average of the federal funds rates shown on Telerate page 5 (or
any successor page) as of 11:00 a.m., New York City time, on the
applicable Interest Determination Date and each of the four Business
Days prior to such Interest Determination Date, or (iii) the one-week
"AA" non-financial commercial
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paper rate shown on the Internet world wide web page of the Board of
Governors of the Federal Reserve System at
xxx.xxx.xxx.xxx.xx/xxxxxxxx/XX/ (or any successor page) as of 11:00
a.m., New York City time, on the applicable Interest Determination
Date. If the reference rate on the applicable designated page (or
successor page) is not published on the specified page by the specified
time on the applicable date or dates, then the reference rate
determined as of the applicable Interest Determination Date will be the
reference rate in effect on such Interest Determination Date.
The "Basic Spread" will be the lowest firm commitment bid
expressed as a spread (in the form of a percentage or a number of basis
points (plus or minus)) with respect to the Reference Rate, obtained by
the Calculation Agent on the third Business Day prior to the Interim
Period Remarketing Date from the bids quoted from up to five Reference
Money Market Dealers on such date for the full aggregate principal
amount of the MVPs at a dollar price equal to par, but assuming (i)
that the purchase date is the Interim Period Remarketing Date, with
settlement on such date without accrued interest, (ii) that the
maturity date is the day that is 26 weeks from the Interim Period
Remarketing Date, (iii) that the MVPs are callable by the Call Holder
on a weekly basis after the Interim Period Remarketing Date, (iv) that
the MVPs will be repurchased by the Company at par on the day that is
26 weeks from the Interim Period Remarketing Date if not previously
called by the Call Holder, and (v) a stated annual interest rate,
payable on the Additional Remarketing Date, equal to the Reference Rate
plus the spread bid by the applicable Reference Money Market Dealer.
"Reference Money Market Dealers" means each of First Chicago
Capital Markets, Inc., Chase Securities Inc., NationsBanc Xxxxxxxxxx
Securities LLC, Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co.
Incorporated and their respective successors; provided, however, that
if any of the foregoing or their affiliates shall cease to be a leading
dealer of publicly traded debt securities of the Company and a leading
dealer in money market instruments (a "Primary Money Market Dealer"),
the Calculation Agent shall substitute therefor another Primary Money
Market Dealer.
The Interim Period Interest Rate and the amount of interest
payable on the Additional Remarketing Date shall each be determined by
the Calculation Agent and, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and Holders of the MVPs, the Call
Holder, the Company and the Trustee.
(c) Redetermination of Interest Rate to Maturity.
Notwithstanding any provision herein to the contrary, upon the
occurrence, at any time after determination of the Interest Rate to
Maturity on the Determination Date and prior to 3:30 p.m., New York
City time, on the Business Day immediately preceding the Remarketing
Date, of any event as specified in Section 12(b) of the Remarketing and
Interest Calculation Agreement, the Call Holder, in its sole discretion
at any time between the Determination Date and 3:30 p.m., New York City
time, on the Business Day immediately preceding the Remarketing Date
(if such date is not the Interim Period Remarketing Date) or the
Additional Remarketing Date (in the event of the Interim Period), may
elect to purchase the MVPs for remarketing and determine a new Interest
Rate to Maturity in the manner provided in Section 4(a) hereof, except
that for purposes of determining the new Interest Rate to Maturity
pursuant to this paragraph, the Determination Date referred to therein
shall be
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the date of such election and redetermination. The Calculation Agent
shall notify the Company, the Trustee and DTC by telephone, confirmed
in writing (which may include facsimile or other electronic
transmission), by 4:00 p.m., New York City time, on the date of such
election, of the new Interest Rate to Maturity applicable to the MVPs.
Thereupon, such new Interest Rate to Maturity shall supersede and
replace any Interest Rate to Maturity previously determined by the
Calculation Agent and, absent manifest error, shall be binding and
conclusive upon the Beneficial Owners and Holders of the MVPs on or
after the Remarketing Date, the Company and the Trustee.
5. Notification of Results; Settlement. Provided the Call Holder has
previously notified the Company and the Trustee on the Notification Date of its
intention to purchase all MVPs on January 18, 2000 and subject to Section 7
below, the Calculation Agent will notify the Company, the Trustee and DTC by
telephone, confirmed in writing (which may include facsimile or other electronic
transmission), by 4:00 p.m., New York City time, on the Determination Date, of
the Interest Rate to Maturity. If January 18, 2000 is the Interim Period
Remarketing Date, the Calculation Agent will provide the Company, the Trustee
and DTC notice in accordance with the preceding sentence, on the second Business
Day prior to January 18, 2000, of the Interim Period Interest Rate which will
initially be in effect. All of the outstanding MVPs shall be automatically
delivered to the account of the Trustee, by book-entry through DTC pending
payment of the purchase price therefor, on the applicable remarketing date.
In the event that the Call Holder purchases the tendered MVPs on any
remarketing date, the Call Holder shall make or cause the Trustee to make
payment to the DTC Participant of each Beneficial Owner of MVPs, by book-entry
through DTC no later than the close of business on the applicable remarketing
date against delivery through DTC of such Beneficial Owner's tendered MVPs, of
100% of the principal amount of the tendered MVPs that have been purchased for
remarketing by the Call Holder. If the Call Holder does not purchase all of the
MVPs on any remarketing date, it shall be the obligation of the Company to make
or cause to be made such payment for the MVPs, as provided in Section 6 hereof.
In any case, the Company shall make or cause the Trustee to make payment of
interest to each Beneficial Owner of MVPs due on any remarketing date by
book-entry through DTC no later than the close of business on such remarketing
date.
"DTC Participant" shall mean any person that has an account with DTC
through which Beneficial Owners acquire, directly or indirectly, an interest in
the MVPs.
The transactions set forth herein shall be executed through DTC in
accordance with the procedures of DTC, and the accounts of the respective DTC
Participants will be debited and credited and the MVPs delivered by book-entry
as necessary to effect the purchases and sales thereof.
The tender and settlement procedures set forth herein, including
provisions for payment by purchasers of MVPs in the remarketing or for payment
to selling Beneficial Owners of MVPs, may be modified, without the consent of
the Beneficial Owners and Holders of the MVPs, to the extent required by DTC or
to the extent required to facilitate the tender and remarketing of MVPs in
certificated form, if the book-entry system is no longer available for the MVPs
at the time of the remarketing. In addition, the Call Holder may, without the
consent of Holders or
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Beneficial Owners of the MVPs, modify the tender and settlement procedures set
forth above in order to facilitate the tender and settlement process.
As long as DTC's nominee holds the certificates representing any MVPs
in the book-entry system of DTC, no certificates for such MVPs will be delivered
by any selling Beneficial Owner to reflect any transfer of such MVPs effected in
the remarketing.
6. Repurchase. In the event that (i) the Calculation Agent for any
reason (other than redemption by the Company of the MVPs from the Call Holder
pursuant to Section 7 hereof) does not notify the Company of (A) the Interest
Rate to Maturity by 4:00 p.m., New York City time, on the Determination Date or
(B) in the event of the Interim Period, the Interim Period Interest Rate which
will initially be in effect, by 4:00 p.m. New York City time on the second
Business Day prior to January 18, 2000, or (ii) prior to any remarketing date,
the Call Holder has resigned and no successor has been appointed on or before
(A) the Determination Date or (B) in the event of the Interim Period, the second
Business Day prior to January 18, 2000, or (iii) at any time after the Call
Holder elects on the Notification Date to remarket the MVPs, any event as set
forth in Section 9 or Section 12 of the Remarketing and Interest Calculation
Agreement shall have occurred, or (iv) the Call Holder for any reason does not
elect to purchase the MVPs for remarketing on any remarketing date, (v) the Call
Holder for any reason does not purchase all tendered MVPs on the Remarketing
Date, or (vi) a Reference Corporate Dealer shall fail to purchase all of the
MVPs from the Call Holder on the Remarketing Date (if such date is not the
Interim Period Remarketing Date) or Additional Remarketing Date (in the event of
the Interim Period), or (vii) in the event of the Interim Period, a Reference
Money Market Dealer shall fail to purchase all of the MVPs on the Interim Period
Remarketing Date, then the Company shall repurchase all the MVPs as a whole on
the remarketing date relating to such event (which, in the case of clause (iii)
that occurs during the Interim Period shall be the Additional Remarketing Date)
at a price equal to 100% of the principal amount of the MVPs plus all accrued
and unpaid interest, if any, on the MVPs to such remarketing date. In any such
case, payment will be made by the Company through the Trustee to the DTC
Participant of each tendering Beneficial Owner of MVPs, by book-entry through
DTC no later than the close of business on the applicable remarketing date
against delivery through DTC of such Beneficial Owner's tendered MVPs.
7. Redemption. If the Call Holder elects to remarket the MVPs in
accordance with the terms of the Remarketing and Interest Calculation Agreement,
then not later than four Business Days immediately preceding the Remarketing
Date or the Additional Remarketing Date, if any, the Company may irrevocably
elect to exercise its right to redeem the outstanding MVPs, in whole but not in
part, from the Call Holder on the remarketing date immediately following such
election at the Optional Redemption Price.
The "Optional Redemption Price" shall be the sum of (i) the greater of
(a) 100% of the principal amount of the MVPs and (b) the Dollar Price (which if
such remarketing date is the Additional Remarketing Date, will equal the
Adjusted Dollar Price), plus (ii) in the case of either (a) or (b), accrued and
unpaid interest on the principal amount being redeemed to the date of payment in
respect of such redemption.
Provided that the MVPs have not been repurchased pursuant to Section 6
hereof or redeemed pursuant to the two immediately preceding paragraphs,
following the remarketing of the MVPs on the Remarketing Date (if such date is
not the Interim Period Remarketing Date) or
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the Additional Remarketing Date (in the event of the Interim Period), the MVPs
will be redeemable, in whole or from time to time in part, at the option of the
Company after the Remarketing Date (if such date is not the Interim Period
Remarketing Date) or the Additional Remarketing Date (in the event of the
Interim Period) at a redemption price equal to the greater of (i) 100% of the
principal amount of the MVPs to be redeemed and (ii) an amount (determined by
the Quotation Agent (as defined below)) equal to the sum of the present values
of the remaining scheduled payments of principal and interest on the MVPs to be
redeemed (not including any portion of such payments of interest accrued as of
the date of redemption) discounted to the date of redemption on a semi-annual
basis (assuming a 360-day year consisting of twelve 30-day months) at the
Adjusted Treasury Rate (as defined below) plus 15 basis points, plus, in either
case, accrued interest thereon to the date of redemption.
"Adjusted Treasury Rate" means, with respect to any redemption date,
the rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the United States Treasury security
selected by the Quotation Agent as having a maturity comparable to the remaining
term of the MVPs to be redeemed that would be utilized, at the time of selection
and in accordance with customary financial practice, in pricing new issues of
corporate debt securities of comparable maturity to the remaining term of such
MVPs.
"Comparable Treasury Price" means, with respect to any redemption date,
(i) the average of the Reference Treasury Dealer Quotations for such redemption
date, after excluding the highest and lowest such Reference Treasury Dealer
Quotations, or (ii) if the Trustee obtains fewer than three such Reference
Treasury Dealer Quotations, the average of such Quotations, such average in any
case to be determined by the Quotation Agent, or (iii) if only one Reference
Treasury Dealer Quotation is received, such Quotation.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
Company.
"Reference Treasury Dealer" means (i) each of First Chicago Capital
Markets, Inc., Chase Securities Inc., NationsBanc Xxxxxxxxxx Securities LLC,
Xxxxxxx, Xxxxx & Co. and Xxxxxx Xxxxxxx & Co. Incorporated and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer (a "Primary Treasury Dealer"), the
Company shall substitute therefor another Primary Treasury Dealer, and (ii) any
other Primary Treasury Dealer(s) selected by the Company.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the Quotation Agent, of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) quoted in
writing to the Trustee by such Reference Treasury Dealer at 5:00 p.m., New York
City time, on the third Business Day preceding such redemption date.
Notice of any redemption will be mailed at least 30 days but not more
than 60 days before the redemption date to each holder of the MVPs to be
redeemed. Unless the Company defaults in payment of the redemption price, on and
after the redemption date, interest will cease
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to accrue on the MVPs or portions thereof called for redemption. If less than
all of the MVPs are to be redeemed, the MVPs (or portions thereof) to be
redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate.
8. Effect of Events of Default. If an Event of Default, as defined in
the Senior Indenture, shall occur and be continuing, the principal of the MVPs
may be declared due and payable in the manner and with the effect provided in
the Senior Indenture.
9. Defeasance. Notwithstanding any provision to the contrary in the
Senior Indenture or otherwise, prior to the Remarketing Date, neither the
Company nor any of its subsidiaries or affiliates shall defease, purchase or
otherwise acquire, or enter into any agreement to defease, purchase or otherwise
acquire, any of the MVPs prior to the remarketing thereof by the Call Holder.
10. Maintenance in Book-Entry Form. Notwithstanding any provision to
the contrary set forth in the Senior Indenture, the Company (i) shall use its
best efforts to maintain the MVPs in book-entry form with DTC or any successor
thereto and to appoint a successor depositary to the extent necessary to
maintain the MVPs in book-entry form, and (ii) waives any discretionary right it
otherwise has under the Senior Indenture to cause the MVPs to be issued in
certificated form.
11. Amendment and Modification. The Senior Indenture permits, with
certain exceptions as therein provided, the amendment thereof and the
modification of the rights and obligations of the Company and the rights of the
Holders of the Securities at any time by the Company and the Trustee with the
consent of the Holders of not less than a majority of the aggregate principal
amount of all Securities at the time outstanding of each series affected
thereby. The Senior Indenture also contains provisions permitting the Holders of
not less than a majority of the aggregate principal amount of the outstanding
Securities of any series, on behalf of the Holders of all such Securities, to
waive compliance by the Company with certain provisions of the Senior Indenture.
Furthermore, provisions in the Senior Indenture permit the Holders of not less
than a majority of the aggregate principal amount of the outstanding Securities
of any series, in certain instances, to waive, on behalf of all of the Holders
of Securities of such series, certain past defaults under the Senior Indenture
and their consequences. Any such consent or waiver by the Holder of this MVPs
shall be conclusive and binding upon such Holder and upon all future Holders of
this MVPs and other MVPs issued upon the registration or transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation or such consent or
waiver is made upon this MVPs. Without the consent of any Holder, (i) the
Company and the Trustee may amend or supplement the Senior Indenture or the MVPs
to cure any ambiguity, defect or inconsistency or to make certain other
specified changes or any change that does not materially adversely affect the
rights of any Holder and (ii) the tender and settlement procedures may be
modified as provided in Section 3(b) above. Holders of MVPs may not enforce
their rights pursuant to the Senior Indenture or the MVPs except as permitted in
the Senior Indenture.
12. Obligation to Pay Principal, Premium, if any, and Interest. No
reference herein to the Senior Indenture and no provision of this MVPs or of the
Senior Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this MVPs at the times, places and rate or formula, and in the manner
and coin or currency, herein prescribed.
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13. Transfer and Exchange. As provided in the Senior Indenture and
subject to certain limitations therein and herein set forth (including without
limitation the restrictions on transfer under the Senior Indenture in the event
this MVPs is a Global Security as evidenced by the legend first set forth above
and provided in the Senior Indenture), the transfer of this MVPs is registrable
in the Security Register of the Company upon surrender of this MVPs for
registration of transfer at the office or agency of the Security Registrar in
Dallas, Texas designated for such purpose, duly endorsed by, or accompanied by a
written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the Holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new MVPs, of authorized
denominations and for the same aggregate principal amount and otherwise bearing
identical terms and provisions, will be issued to the designated transferee or
transferees.
As provided in the Senior Indenture and subject to certain limitations
therein and herein set forth (including without limitation the restrictions on
transfer under the Senior Indenture in the event this MVPs is a global Security
as evidenced by the legend first set forth above and provided in the Senior
Indenture), this MVPs is exchangeable for a like aggregate principal amount of
MVPs of different authorized denominations but otherwise having the same terms
and conditions, as requested by the Holder hereof surrendering the same at the
office or agency of the Security Registrar in Dallas, Texas designated for such
purpose.
No service charge shall be made for any such registration of transfer
or exchange of MVPs, but the Company or the Security Registrar may require
payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in relation thereto. Initially, the Trustee will act as Security
Registrar and the office at which this MVPs must be surrendered for registration
of transfer or exchange is currently the corporate trust department of the
Trustee, 0000 Xxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000.
Prior to due presentment of this MVPs for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
person in whose name this MVPs is registered as the owner thereof for all
purposes, whether or not this MVPs be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
14. Treatment for United States Federal Income Tax Purposes. Each
Holder of this MVPs, by virtue of its purchase hereof, agrees, with respect to
the period from the Original Issue Date to the Remarketing Date, to treat this
MVPs as a fixed rate debt instrument that matures on the Remarketing Date for
United States Federal income tax purposes.
15. Governing Law. The Senior Indenture and this MVPs shall be governed
by and construed in accordance with the laws of the State of Texas.
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ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this MVPs, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
UNIF GIFT MIN ACT - __________ Custodian __________
(Cust) (minor)
under Uniform Gifts to Minors Act
______________________ (State)
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right
of survivorship and not as
tenants in common
Additional abbreviations may also be used though not in the above list.
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ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
_____________________________this MVPs and all
(Please print or typewrite name and address including postal zip code of
assignee)
rights thereunder hereby irrevocably constituting and appointing________________
_________________________________________________Attorney to transfer this MVPs
on the books of the Trustee, with full power of substitution in the premises.
Dated:
-------------------------------------------
Notice: The signature(s) on this Assignment
must correspond with the name(s) as written
upon the face of this MVPs in every
particular, without alteration or
enlargement or any change whatsoever.
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