[FACE OF NOTE]
UNLESS THIS NOTE 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 NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. SNR/FXR-
----------- ------------------ --------------------
BOEING CAPITAL CORPORATION
Series X SUBORDINATED MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S) %
[ ] Janaury 15 and July 15
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF
DATE(S): AN ORIGINAL ISSUE
DISCOUNT NOTE
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATIONS: EXCHANGE RATE
[ ] United States dollars [ ] $100,000 and integral AGENT:
[ ] Other: multiples of $1,000
in excess thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
-----------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
Boeing Capital Corporation, a Delaware corporation (the "Company", which
term includes any successor corporation under the Subordinated Indenture
hereinafter referred to), for value received, hereby promises to pay to
, or registered assigns, the principal sum of , on
the Stated Maturity Date specified above (or any Redemption Date or Repayment
Date, each as defined on the reverse hereof) (each such Stated Maturity Date,
Redemption Date and Repayment Date and any other date on which the principal
or an installment of principal of this Note shall become due and payable,
whether by declaration of acceleration or otherwise, being hereinafter
referred to as the "Maturity Date" with respect to the principal repayable on
such date) and to pay interest thereon, at the Interest Rate per annum
specified above, until the principal hereof is paid or duly made available
for payment. The Company will pay interest in arrears on each Interest
Payment Date, if any, specified above (each, an "Interest Payment Date"),
commencing with the first Interest Payment Date next succeeding the Original
Issue Date specified above, and on the Maturity Date; PROVIDED, HOWEVER, that
if the Original Issue Date occurs between a Record Date (as defined below)
and the next succeeding Interest Payment Date, interest payments will
commence on the second Interest Payment Date next succeeding the Original
Issue Date to the holder of this Note on the Record Date with respect to such
second Interest Payment Date. Interest on this Note will be computed on the
basis of a 360-day year of twelve 30-day months.
References herein to "this Note", "hereof", "herein" and comparable terms
shall include an Addendum hereto if an Addendum is specified above.
Notwithstanding anything else contained herein, if this Note is a Global
Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Interest on this Note will accrue from, and including, the immediately
preceding Interest Payment Date to which interest has been paid or duly provided
for (or from, and including, the Original Issue Date if no interest has been
paid or duly provided for with respect to this Note) to, but excluding, the
applicable Interest Payment Date or the Maturity Date, as the case may be (each,
an "Interest Period"). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Record Date"); PROVIDED, HOWEVER,
that interest payable on the Maturity Date will be payable to the person to whom
the principal hereof and premium, if any, hereon shall be payable. Any such
interest not so punctually paid or duly provided for ("Defaulted Interest") will
forthwith cease to be payable to the holder on any Record Date, and
2
shall be paid to the person in whose name this Note is registered at the close
of business on a special record date (the "Special Record Date") for the payment
of such Defaulted Interest to be fixed by the Trustee hereinafter referred to,
notice whereof shall be given to the holder of this Note by the Trustee not less
than 10 calendar days prior to such Special Record Date or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Subordinated Indenture.
Payments of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The Borough of Manhattan, The City of New York, currently located at
Four Albany Street, New York, New York 10015, or at such other paying agency in
the Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed election form) is presented and
surrendered at the aforementioned office of the Trustee in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that is
not a Business Day, the required payment of principal, premium, if any, and/or
interest shall be made on the next succeeding Business Day with the same force
and effect as if made on the date such payment was due, and no interest shall
accrue with respect to such payment for the period from and after such Interest
Payment Date or the Maturity Date, as the case may be, to the date of such
payment on the next succeeding Business Day.
3
As used herein, "Business Day" means any day, other than a Saturday or
Sunday, that is neither a legal holiday nor a day on which banking institutions
are authorized or required by law, regulation or executive order to close in The
City of New York; PROVIDED, HOWEVER, that if the Specified Currency is other
than United States dollars and any payment is to be made in the Specified
Currency in accordance with the provisions hereof, such day is also not a day on
which banking institutions are authorized or required by law, regulation or
executive order to close in the Principal Financial Center (as defined below) of
the country issuing the Specified Currency unless the Specified Currency is
European Currency Units ("ECU"), in which case such day is not a day that
appears as an ECU non-settlement day on the display designated as "ISDE" on the
Xxxxxx Monitor Money Rates Service (or a day so designated by the ECU Banking
Association) or, if ECU non-settlement days do not appear on that page (and are
not so designated), is not a day on which payments in ECU cannot be settled in
the international interbank market). "Principal Financial Center" means the
capital city of the country issuing the Specified Currency, except that with
respect to United States dollars, Australian dollars, Deutsche marks, Dutch
guilders, Italian lire, Swiss francs and ECU, the "Principal Financial Center"
shall be The City of New York, Sydney, Frankfurt, Amsterdam, Milan, Zurich and
Luxembourg, respectively.
The Company is obligated to make payments of principal, premium, if any,
and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note; PROVIDED, HOWEVER, that the holder of
this Note may elect to receive such amounts in the Specified Currency pursuant
to the provisions set forth below.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by the Exchange Rate Agent at
approximately 11:00 A.M., New York City time, on the second Business Day
preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to
4
execute a contract. All currency exchange costs will be borne by the holder of
this Note by deductions from such payments. If three such bid quotations are
not available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the holder
of this Note may elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Note in the
Specified Currency by submitting a written request for such payment to the
Trustee at its corporate trust office in The City of New York on or prior to the
applicable Record Date or at least 15 calendar days prior to the Maturity Date,
as the case may be. Such written request may be mailed or hand delivered or
sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Subordinated Indenture).
If the Specified Currency is a composite currency and the holder of this
Note shall have duly made an election to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in
5
United States dollars shall be computed by the Exchange Rate Agent on the basis
of the equivalent of the composite currency in United States dollars. The
component currencies of the composite currency for this purpose (collectively,
the "Component Currencies" and each, a "Component Currency") shall be the
currency amounts that were components of the composite currency as of the last
day on which the composite currency was used. The equivalent of the composite
currency in United States dollars shall be calculated by aggregating the United
States dollar equivalents of the Component Currencies. The United States dollar
equivalent of each of the Component Currencies shall be determined by the
Exchange Rate Agent on the basis of the most recently available Market Exchange
Rate for each such Component Currency, or as otherwise specified on the face
hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent shall
be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof and, if so specified above, in the Addendum hereto, which
further provisions shall have the same force and effect as if set forth on the
face hereof.
Unless the Certificate of Authentication hereon has been executed by the
Trustee by manual signature, this Note shall not be entitled to any benefit
under the Subordinated Indenture or be valid or obligatory for any purpose.
6
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[SEAL] BOEING CAPITAL CORPORATION
By
----------------------------
Title:
Attest:
By:
----------------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Subordinated Indenture.
BANKERS TRUST COMPANY,
as Trustee
By Dated:
---------------------------- ----------------------------
Authorized Officer
7
[REVERSE OF NOTE]
BOEING CAPITAL CORPORATION
Series X SUBORDINATED MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the "Debt
Securities") of the Company issued and to be issued under a Subordinated
Indenture, dated as of June 15, 1988, as amended by the First Supplemental
Subordinated Indenture dated as of June 12, 1995 and as further amended,
modified or supplemented from time to time (the "Subordinated Indenture"),
between the Company and Bankers Trust Company, as successor Trustee (the
"Trustee", which term includes any successor trustee under the Subordinated
Indenture), to which Subordinated Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the holders of the Debt Securities, and of the terms upon which the
Debt Securities are, and are to be, authenticated and delivered. This Note is
one of the series of Debt Securities designated as "Series X Subordinated
Medium-Term Notes Due Nine Months or More from Date of Issue" (the "Notes").
All terms used but not defined in this Note specified on the face hereof or in
an Addendum hereto shall have the meanings assigned to such terms in the
Subordinated Indenture.
This Note is issuable only in registered form without coupons in
denominations of U.S.$100,000 and integral multiples of $1,000 in excess thereof
or the minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on any
date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be at least U.S.$100,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage
8
Reduction, if any, specified on the face hereof until the Redemption Price is
100% of unpaid principal amount to be redeemed. In the event of redemption of
this Note in part only, a new Note of like tenor for the unredeemed portion
hereof and otherwise having the same terms as this Note shall be issued in the
name of the holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of the
holder hereof on the Optional Repayment Date(s), if any, specified on the face
hereof, in whole or in part in increments of U.S.$1,000 or, if the Specified
Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof (provided that any remaining principal
amount hereof shall be at least U.S.$100,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued thereon to the date fixed
for repayment (each, a "Repayment Date"). For this Note to be repaid, this Note
must be received, together with the form hereon entitled "Option to Elect
Repayment" duly completed, by the Trustee at its corporate trust office not more
than 60 nor less than 30 calendar days prior to the Repayment Date. Exercise of
such repayment option by the holder hereof will be irrevocable. In the event of
repayment of this Note in part only, a new Note of like tenor for the unrepaid
portion hereof and otherwise having the same terms as this Note shall be issued
in the name of the holder hereof upon the presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the face
hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (ii)
any unpaid interest accrued thereon, from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the case
may be. The difference between the Issue Price and 100% of the principal amount
of this Note is referred to herein as the "Discount", and the Discount will be
ratably accrued over the term of this Note for purposes of determining the
amount payable upon redemption, repayment or acceleration of maturity of this
Note.
Subordinated Indebtedness evidenced by this Note is subordinate and junior
in right of payment to the prior payment in full of all Senior Indebtedness
(defined below) of the Company and each Holder of this Note by accepting the
same agrees to and shall be bound by the provisions hereof, and authorizes the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the same and appoints the Trustee as his attorney-in-fact for such
purpose.
9
For all purposes herein, the term "Senior Indebtedness" shall mean all of
the indebtedness of, or guaranteed by, the Company for borrowed money (including
the principal of, premium, if any, or interest on any such borrowed money and
any commitment fees for unborrowed amounts which, if borrowed, would constitute
Senior Indebtedness), whether currently outstanding or hereafter incurred,
unless, under the instrument evidencing the same or under which the same is
outstanding, it is expressly provided that such indebtedness is subordinate to
other indebtedness and obligations of the Company.
In the event that the Company shall default in the payment of any Senior
Indebtedness, when the same becomes due and payable, whether at maturity or on a
date fixed for prepayment or by declaration or otherwise, then, unless and until
such default shall have been cured or waived or shall have ceased to exist, no
direct or indirect payment (in cash, property, or securities or by set-off or
otherwise) shall be made or agreed to be made on account of the principal of,
premium, if any, or interest or any Additional Amounts on this Note, or in
respect of any sinking fund for, or redemption, retirement or purchase or other
acquisition of this Note.
Upon the happening of an event of default with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
(other than under the circumstances when the terms of the immediately preceding
paragraph are applicable), then, unless and until such event of default shall
have been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, or securities or by set-off or otherwise) shall be
made or agreed to be made on account of the principal of, or premium, if any, or
interest or any Additional Amounts on this Note or in respect of any sinking
fund for, or redemption, retirement or purchase or other acquisition of this
Note during any period (i) of 90 days after written notice of such default shall
have been given to the Company by any holder of Senior Indebtedness or (ii) in
which any judicial proceeding shall be pending in respect of such default and a
notice of acceleration of the maturity of such Senior Indebtedness shall have
been transmitted to the Company in respect of such default.
In the event of (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding relating
to the Company, its creditors or its property; (ii) any proceeding for the
liquidation, dissolution or other winding-up of the Company, voluntary or
involuntary, whether or not involving insolvency or bankruptcy proceedings;
(iii) any assignment by the Company for the benefit of creditors; or (iv) any
other marshalling of the assets of the Company, all Senior Indebtedness
(including any interest accruing after commencement of any such proceedings)
shall first be paid in full before any payment or distribution, whether in cash,
securities or other property, shall be made to any holder of this Note on
account of this Note. Any payment or distribution, whether in cash, securities
or other property (other than securities of the Company
10
or any other corporation provided for by a plan of reorganization or
readjustment the payment of which is subordinate, at least to the extent
provided herein with respect to this Note, to the payment of all Senior
Indebtedness at the time Outstanding and to any securities issued in respect
thereof under any such plan of reorganization or readjustment), which would
otherwise but for the foregoing be payable or deliverable in respect of this
Note shall be paid or delivered directly to the holders of Senior Indebtedness
in accordance with the priorities then existing among such holders until all
Senior Indebtedness (including any interest thereon accruing after the
commencement of any such proceedings) shall have been paid in full.
In the event that this Note shall be declared due and payable as a result
of the occurrence of any one or more defaults in respect thereof (under
circumstances when the terms of the immediately preceding paragraph are not
applicable), no payment shall be made in respect of this Note unless and until
all Senior Indebtedness shall have been paid in full or such declaration and its
consequences shall have been rescinded and all such defaults shall have been
remedied or waived.
If any payment or distribution to be paid to the holders of Senior
Indebtedness shall be received by any Holder of this Note in contravention of
the foregoing and before all the Senior Indebtedness shall have been paid in
full, such payment or distribution of any character or any security whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
provisions of the Subordinated Indenture with respect to the Subordinated
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan or
reorganization or readjustment), shall be received in trust for the benefit of,
and shall be paid over or delivered and transferred to, the holders of Senior
Indebtedness at the time Outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the holder of this Note to
endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same. Nothing contained herein shall impair, as between the Company and the
holder of this Note, the obligation of the Company to pay to the holder thereof
the principal thereof and interest thereon as and when the same shall become due
and payable in accordance with the terms of this Note, or prevent the holder of
this Note from exercising all rights, powers and remedies otherwise permitted by
applicable law or pursuant to the terms of this Note or the Subordinated
Indenture upon a default or Event of Default under the Subordinated Indenture,
all subject to the rights of the holders of Senior Indebtedness to receive cash,
securities or other property otherwise payable or deliverable to the holder of
this Note. Senior Indebtedness shall not be deemed to have been paid in
11
full unless the holders thereof shall have received cash equal to the amount of
such Senior Indebtedness then Outstanding. Upon the payment in full of all
Senior Indebtedness, the holder of this Note shall be subrogated to all rights
of any holders of Senior Indebtedness to receive any further payments or
distributions applicable to the Senior Indebtedness until all amounts owing on
this Note shall have been paid in full, and such payments or distributions
received by the Holder of this Note by reason of such subrogation, of cash,
securities or other property which otherwise would be paid or distributed to the
holders of Senior Indebtedness, shall, as between the Company and its creditors
other than the holders of Senior Indebtedness, on the one hand, and the Holder
of this Note, on the other hand, be deemed to be a payment by the Company on
account of Senior Indebtedness and not on account of this Note.
If an Event of Default shall occur and be continuing, the principal of all
the Notes may be declared due and payable in the manner and with all the effect
provided in the Subordinated Indenture.
For purposes of determining the amount of Discount that has accrued as of
any Redemption Date, Repayment Date or date of acceleration of maturity of this
Note, such Discount will be accrued using a constant yield method. The constant
yield will be calculated using a 30-day month, 360-day year convention, a
compounding period that, except for the Initial Period (as defined below),
corresponds to the shortest period between Interest Payment Dates (with ratable
accruals within a compounding period), a coupon rate equal to the initial
interest rate applicable to this Note and an assumption that the maturity of
this Note will not be accelerated. If the period from the Original Issue Date
to the initial Interest Payment Date (the "Initial Period") is shorter than the
compounding period for this Note, a proportionate amount of the yield for an
entire compounding period will be accrued. If the Initial Period is longer than
the compounding period, then such period will be divided into a regular
compounding period and a short period, with the short period being treated as
provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Subordinated Indenture contains provisions for defeasance of the entire
indebtedness of the Notes upon compliance with certain conditions set forth
therein, which provisions apply to the Notes.
The Subordinated Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the holders of the Debt Securities
at any time by the Company and the Trustee with the consent of the holders of
not less than 66-2/3% in principal
12
amount of the Outstanding Debt Securities of each series affected thereby. The
Subordinated Indenture also contains provisions permitting the holders of at
least 66-2/3% in principal amount of the Outstanding Debt Securities of any
series, on behalf of the holders of all such Debt Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Subordinated Indenture permit the holders of not
less than a majority in principal amount of the Outstanding Debt Securities of
any series, in certain instances, to waive, on behalf of all of the holders of
Debt Securities of such series, certain past defaults under the Subordinated
Indenture and their consequences. Any such consent or waiver by the holder of
this Note shall be conclusive and binding upon such holder and upon all future
holders of this Note and other Notes issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Note.
No reference herein to the Subordinated Indenture and no provision of this
Note or of the Subordinated Indenture shall alter or impair the obligation of
the Company, which is absolute and unconditional, to pay principal, premium, if
any, and interest in respect of this Note at the times, places and rate or
formula, and in the coin or currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Company upon surrender of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal hereof and any premium or interest hereon are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the holder
hereof surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not
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this Note be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
The Subordinated Indenture and this Note shall be governed by and construed
in accordance with the laws of the State of New York applicable to agreements
made and to be performed entirely in such State.
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_____________
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (State)
Additional abbreviations may also be used though not in the above list.
______________________________
FOR VALUE RECEIVED, the undersigned hereby sell(s), assign(s) and transfer(s)
unto
PLEASE INSERT SOCIAL SECURITY OR
OTHER
IDENTIFYING NUMBER OF ASSIGNEE
| |
|____________________________|________________________________________________
______________________________________________________________________________
(Please print or typewrite name and address including postal zip code of
assignee)
______________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
______________________________________________________________________________
Attorney to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ ____________________________________________
____________________________________________
Notice: The signature(s) on this assignment
must correspond with the name(s) as written
upon the face of this Note in every
particular, without alteration or enlargement
or any change whatsoever.
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OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the Company
to repay this Note (or portion hereof specified below) pursuant to its terms at
a price equal to 100% of the principal amount to be repaid, together with unpaid
interest accrued hereon to the Repayment Date, to the undersigned, at___________
________________________________________________________________________________
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate trust
office, not more than 60 nor less than 30 calendar days prior to the Repayment
Date, this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (each of which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid:________________ ______________________________________
Notice: The signature(s) on this
Date:________________________ Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
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