ORACLE CORPORATION Officers Certificate

EX-4.01 2 dex401.htm FORM OF OFFICERS' CERTIFICATE SETTING FORTH THE TERMS OF THE NOTES Form of Officers' Certificate setting forth the terms of the Notes

Exhibit 4.01

ORACLE CORPORATION

Officers’ Certificate

Pursuant to Section 2.01 and Section 2.03 of the Indenture dated as of January 13, 2006 (the “Base Indenture”) by and among Oracle Corporation (the “Issuer,” formerly known as Ozark Holding Inc.), Oracle Systems Corporation (formerly known as Oracle Corporation) and Citibank, N.A. (the “Original Trustee”), as amended by the First Supplemental Indenture dated as of May 9, 2007 (together with the Base Indenture, the “Indenture”) by and among the Issuer, the Original Trustee and The Bank of New York Trust Company, N.A., as trustee for any and all securities issued thereunder subsequent to the date of such amendment (the “Trustee”), the undersigned officers do hereby certify, in connection with the issuance of (i) $1,000,000,000 aggregate principal amount of Floating Rate Notes due May 14, 2009 (“Notes due May 14, 2009”) and (ii) $1,000,000,000 aggregate principal amount of Floating Rate Notes due May 14, 2010 (“Notes due May 14, 2010,” and, together with the Notes due May 14, 2009, the “Notes”), that the terms of the Notes are as follows:

Capitalized terms used but not otherwise defined herein shall have the meanings specified in the Indenture.

 

Notes due May 14, 2009   
Title:    Floating Rate Notes due May 14, 2009
Issuer:    Oracle Corporation
Trustee, Registrar, Calculation Agent, Transfer Agent, Authenticating Agent and Paying Agent:    The Bank of New York Trust Company, N.A.
Aggregate Principal Amount at Maturity:    $1,000,000,000
Principal Payment Date:    May 14, 2009
Interest:    Floating rate equal to three-month USD LIBOR plus 0.02%
Date from which Interest will Accrue:    May 15, 2007


Interest Payment Dates:    February 14, May 14, August 14 and November 14, commencing August 14, 2007; provided, that if an Interest Payment Date for this Note falls on a day that is not a Business Day the Interest Payment Date shall be postponed to the next succeeding Business Day, unless such next succeeding Business Day would be in the following month, in which case the Interest Payment Date shall be the immediately preceding Business Day.
Conversion:    None
Sinking Fund:    None
Redemption:    The Notes due May 14, 2009 shall not be redeemable prior to their maturity.
Denominations:    $2,000 and multiples of $1,000 thereafter.
Miscellaneous:    The terms of the Notes due May 14, 2009 shall include such other terms as are set forth in the form of Notes due May 14, 2009 attached hereto as Exhibit A and in the Indenture.

 

Notes due May 14, 2010   
Title:    Floating Rate Notes due May 14, 2010
Issuer:    Oracle Corporation
Trustee, Registrar, Calculation Agent, Transfer Agent, Authenticating Agent and Paying Agent:    The Bank of New York Trust Company, N.A.
Aggregate Principal Amount at Maturity:    $1,000,000,000
Principal Payment Date:    May 14, 2010
Interest:    Floating rate equal to three-month USD LIBOR plus 0.06%
Date from which Interest will Accrue:    May 15, 2007


Interest Payment Dates:    February 14, May 14, August 14 and November 14, commencing August 14, 2007; provided, that if an Interest Payment Date for this Note falls on a day that is not a Business Day the Interest Payment Date shall be postponed to the next succeeding Business Day, unless such next succeeding Business Day would be in the following month, in which case the Interest Payment Date shall be the immediately preceding Business Day.
Conversion:    None
Sinking Fund:    None
Redemption:    The Notes due May 14, 2010 shall not be redeemable prior to their maturity.
Denominations:    $2,000 and multiples of $1,000 thereafter.
Miscellaneous:    The terms of the Notes due May 14, 2010 shall include such other terms as are set forth in the form of Notes due May 14, 2010 attached hereto as Exhibit B and in the Indenture.

Subject to the representations, warranties and covenants described in the Indenture, as amended or supplemented from time to time, the Issuer shall be entitled, subject to authorization by the Board of Directors of the Issuer and an Officers’ Certificate, to issue additional notes from time to time under each series of notes issued hereby. Any such additional notes of a series shall have identical terms as the Notes due May 14, 2009 or the Notes due May 14, 2010, as the case may be, issued on the issue date, other than with respect to the date of issuance and the issue price (together the “Additional Notes”). Any Additional Notes will be issued in accordance with Section 2.03 of the Indenture.

Each such officer has read and understands the provisions of the Indenture and the definitions relating thereto. The statements made in this Officers’ Certificate are based upon the examination of the provisions of the Indenture and upon the relevant books and records of the Issuer. In such officers’ opinion, they have made such examination or investigation as is necessary to enable such officers to express an informed opinion as to whether or not the covenants and conditions of such Indenture relating to the issuance and authentication of the Notes have been complied with. In such officers’ opinion, such covenants and conditions have been complied with.


IN WITNESS WHEREOF, the undersigned officers of the Issuer have duly executed this certificate as of May 15, 2007.

 

ORACLE CORPORATION
By:  

 

Name:   Safra A. Catz
Title:   President and Chief Financial Officer
By:  

 

Name:   Eric R. Ball
Title:   Vice President and Treasurer

[Signature Page to Officers’ Certificate re. Issuance of Notes]


EXHIBIT A

[FORM OF NOTE DUE MAY 14, 2009]

UNLESS THIS NOTE 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 NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS 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 A BENEFICIAL INTEREST HEREIN.

TRANSFERS OF THIS NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE.

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


ORACLE CORPORATION

Floating Rate Note due May 14, 2009

 

No.   
   CUSIP No.:                
   ISIN No.:                
   $                              

ORACLE CORPORATION, a Delaware corporation (the “Issuer”), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of                      DOLLARS on May 14, 2009.

Interest Payment Dates: February 14, May 14, August 14 and November 14 (each, an “Interest Payment Date”), commencing August 14, 2007.

Interest Record Dates: the Business Day preceding the Interest Payment Date (the “Interest Record Date”).

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.


IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

ORACLE CORPORATION
By:  

 

Name:  
Title:  
By:  

 

Name:  
Title:  


This is one of the Notes of the series designated herein and referred to in the within-mentioned Indenture.

Dated: May 15, 2007

 

The Bank of New York Trust Company, N.A.,
as Trustee

By:

 

 

  Authorized Signatory


(REVERSE OF NOTE)

ORACLE CORPORATION

Floating Rate Note due May 14, 2009

 

  1. Interest.

Oracle Corporation (the “Issuer”) promises to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue from May 15, 2007, or the most recent Interest Payment Date to which payment has been paid or provided for; provided, that if an Interest Payment Date for this Note falls on a day that is not a Business Day the Interest Payment Date shall be postponed to the next succeeding Business Day, unless such next succeeding Business Day would be in the following month, in which case the Interest Payment Date shall be the immediately preceding Business Day. Interest on this Note will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest quarterly in arrears on each Interest Payment Date, commencing August 14, 2007. Interest will be computed on the basis of the actual number of days in an interest period and a 360-day year.

The Issuer shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful.

The interest rate for each interest period will be determined by the calculation agent. Initially, The Bank of New York Trust Company, N.A. will act as calculation agent. The Issuer may change any calculation agent without notice to the Holders. The interest rate for a particular interest period will be a per annum rate equal to three-month USD LIBOR as determined on the interest determination date plus 0.02%. The interest determination date for an interest period will be the second London business day preceding such interest period.

A London business day is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.

On any interest determination date, USD LIBOR will be equal to the offered rate for deposits in U.S. dollars having an index maturity of three months, in amounts of at least $1,000,000, as such rate appears on “Reuters Page LIBOR01” at approximately 11:00 a.m., London time, on such interest determination date. If, on an interest determination date, such rate does not appear on the “Reuters Page LIBOR01” as of 11:00 a.m. (London time), or if the “Reuters Page LIBOR01” is not available on such date, the calculation agent will obtain such rate from Bloomberg L.P.’s page “BBAM.”


If no offered rate appears on “Reuters Page LIBOR01” or Bloomberg L.P. page “BBAM” on an interest determination date at approximately 11:00 a.m., London time, then the calculation agent (after consultation with the Issuer) will select four major banks in the London interbank market and shall request each of their principal London offices to provide a quotation of the rate at which three-month deposits in U.S. dollars in amounts of at least $1,000,000 are offered by it to prime banks in the London interbank market, on that date and at that time, that is representative of single transactions at that time. If at least two quotations are provided, USD LIBOR will be the arithmetic average of the quotations provided. Otherwise, the calculation agent will select three major banks in New York City and shall request each of them to provide a quotation of the rate offered by them at approximately 11:00 a.m., New York City time, on the interest determination date for loans in U.S. dollars to leading European banks having an index maturity of three months for the applicable interest period in an amount of at least $1,000,000 that is representative of single transactions at that time. If three quotations are provided, USD LIBOR will be the arithmetic average of the quotations provided. Otherwise, the rate of USD LIBOR for the next interest period will be set equal to the rate of USD LIBOR for the then current interest period.

Upon request from any Holder, the calculation agent will provide the interest rate in effect on the Notes for the current interest period and, if it has been determined, the interest rate to be in effect for the next interest period.

Dollar amounts resulting from such calculation will be rounded to the nearest cent, with one-half cent being rounded upward.

 

  2. Paying Agent.

Initially, The Bank of New York Trust Company, N.A. (the “Trustee”) will act as paying agent. The Issuer may change any paying agent without notice to the Holders.

 

  3. Indenture; Defined Terms.

This Note is one of the Floating Rate Notes due May 14, 2009 (the “Notes”) issued under an indenture dated as of January 13, 2006 (the “Base Indenture”) by and among the Issuer (formerly known as Ozark Holding Inc.), Oracle Systems Corporation (formerly known as Oracle Corporation) and Citibank, N.A. (the “Original Trustee”), as amended by a supplemental indenture dated as of May 9, 2007 (together with the Base Indenture, the “Indenture”) by and among the Issuer, the Original Trustee and the Trustee, and established pursuant to an Officers’ Certificate dated May 15, 2007, issued pursuant to Sections 2.01 and 2.03 of the Indenture. This Note is a “Security” and the Notes are “Securities” under the Indenture.


For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the “TIA”) as in effect on the date on which the Indenture was qualified under the TIA. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the TIA for a statement of them. To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.

 

  4. Denominations; Transfer; Exchange.

The Notes are in registered form, without coupons, in denominations of $2,000 and multiples of $1,000 thereafter. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture.

 

  5. Amendment; Supplement; Waiver.

Subject to certain exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of all series of Outstanding Securities (including the Notes) under the Indenture that are affected by such amendment, supplement or waiver (voting as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the TIA, or make any other change that does not adversely affect the rights of any Holder of a Note.

 

  6. Defaults and Remedies.

If an Event of Default (other than certain bankruptcy Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee may and, at the direction of the Holders of at least 25% in principal amount of the outstanding Notes, shall by written notice, require the Issuer to repay immediately the entire principal amount of the Outstanding Notes, together with all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing, then the entire principal amount of the Outstanding Notes will


automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it reasonably requires. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is in their interest.

 

  7. Authentication.

This Note shall not be valid until the Trustee manually signs the certificate of authentication on this Note.

 

  8. Abbreviations and Defined Terms.

Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

  9. CUSIP Numbers.

Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

  10. Governing Law.

The laws of the State of New York shall govern the Indenture and this Note thereof.


ASSIGNMENT FORM

To assign this Note, fill in the form below:

I or we assign and transfer this Note to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)

and irrevocably appoint                                      agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

 

Date:

 

 

   Your Signature:   

 

  

 

Sign exactly as your name appears on the other side of this Note.

 

    

 

     Signature
Signature Guarantee:     

 

    

 

Signature must be guaranteed      Signature

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.


SCHEDULE OF EXCHANGES OF NOTES

The following exchanges of a part of this Global Note for Physical Notes or a part of another Global Note have been made:

 

Date of Exchange

 

Amount of decrease

in principal amount

of this Global Note

 

Amount of increase

in principal amount

of this Global Note

 

Principal amount of

this Global Note

following such decrease (or
increase)

 

Signature of

authorized officer of

Trustee

       
       
       
       
       


EXHIBIT B

[FORM OF NOTE DUE MAY 14, 2010]

UNLESS THIS NOTE 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 NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS 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 A BENEFICIAL INTEREST HEREIN.

TRANSFERS OF THIS NOTE ARE LIMITED TO TRANSFERS IN WHOLE, BUT NOT IN PART, TO NOMINEES OF DTC OR TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR’S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL NOTE ARE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE TRANSFER PROVISIONS OF THE INDENTURE.

IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH THE FOREGOING RESTRICTIONS.


ORACLE CORPORATION

Floating Rate Note due May 14, 2010

 

No.    CUSIP No.:                    
   ISIN No.:                    
   $                    

ORACLE CORPORATION, a Delaware corporation (the “Issuer”), for value received promises to pay to CEDE & CO. or registered assigns the principal sum of                      DOLLARS on May 14, 2010.

Interest Payment Dates: February 14, May 14, August 14 and November 14 (each, an “Interest Payment Date”), commencing August 14, 2007.

Interest Record Dates: the Business Day preceding the Interest Payment Date (the “Interest Record Date”).

Reference is made to the further provisions of this Note contained herein, which will for all purposes have the same effect as if set forth at this place.


IN WITNESS WHEREOF, the Issuer has caused this Note to be signed manually or by facsimile by its duly authorized officers.

 

ORACLE CORPORATION
By:  

 

Name:  
Title:  
By:  

 

Name:  
Title:  


This is one of the Notes of the series designated herein and referred to in the within-mentioned Indenture.

Dated: May 15, 2007

 

The Bank of New York Trust Company, N.A.,
as Trustee

By:  

 

  Authorized Signatory


(REVERSE OF NOTE)

ORACLE CORPORATION

Floating Rate Note due May 14, 2010

 

  1. Interest.

Oracle Corporation (the “Issuer”) promises to pay interest on the principal amount of this Note at the rate per annum described above. Cash interest on the Notes will accrue from May 15, 2007, or the most recent Interest Payment Date to which payment has been paid or provided for; provided, that if an Interest Payment Date for this Note falls on a day that is not a Business Day the Interest Payment Date shall be postponed to the next succeeding Business Day, unless such next succeeding Business Day would be in the following month, in which case the Interest Payment Date shall be the immediately preceding Business Day. Interest on this Note will be paid to but excluding the relevant Interest Payment Date. The Issuer will pay interest quarterly in arrears on each Interest Payment Date, commencing August 14, 2007. Interest will be computed on the basis of the actual number of days in an interest period and a 360-day year.

The Issuer shall pay interest on overdue principal from time to time on demand at the rate borne by the Notes and on overdue installments of interest (without regard to any applicable grace periods) to the extent lawful.

The interest rate for each interest period will be determined by the calculation agent. Initially, The Bank of New York Trust Company, N.A. will act as calculation agent. The Issuer may change any calculation agent without notice to the Holders. The interest rate for a particular interest period will be a per annum rate equal to three-month USD LIBOR as determined on the interest determination date plus 0.06%. The interest determination date for an interest period will be the second London business day preceding such interest period.

A London business day is a day on which dealings in deposits in U.S. dollars are transacted in the London interbank market.

On any interest determination date, USD LIBOR will be equal to the offered rate for deposits in U.S. dollars having an index maturity of three months, in amounts of at least $1,000,000, as such rate appears on “Reuters Page LIBOR01” at approximately 11:00 a.m., London time, on such interest determination date. If, on an interest determination date, such rate does not appear on the “Reuters Page LIBOR01” as of 11:00 a.m. (London time), or if the “Reuters Page LIBOR01” is not available on such date, the calculation agent will obtain such rate from Bloomberg L.P.’s page “BBAM.”


If no offered rate appears on “Reuters Page LIBOR01” or Bloomberg L.P. page “BBAM” on an interest determination date at approximately 11:00 a.m., London time, then the calculation agent (after consultation with the Issuer) will select four major banks in the London interbank market and shall request each of their principal London offices to provide a quotation of the rate at which three-month deposits in U.S. dollars in amounts of at least $1,000,000 are offered by it to prime banks in the London interbank market, on that date and at that time, that is representative of single transactions at that time. If at least two quotations are provided, USD LIBOR will be the arithmetic average of the quotations provided. Otherwise, the calculation agent will select three major banks in New York City and shall request each of them to provide a quotation of the rate offered by them at approximately 11:00 a.m., New York City time, on the interest determination date for loans in U.S. dollars to leading European banks having an index maturity of three months for the applicable interest period in an amount of at least $1,000,000 that is representative of single transactions at that time. If three quotations are provided, USD LIBOR will be the arithmetic average of the quotations provided. Otherwise, the rate of USD LIBOR for the next interest period will be set equal to the rate of USD LIBOR for the then current interest period.

Upon request from any Holder, the calculation agent will provide the interest rate in effect on the Notes for the current interest period and, if it has been determined, the interest rate to be in effect for the next interest period.

Dollar amounts resulting from such calculation will be rounded to the nearest cent, with one-half cent being rounded upward.

 

  2. Paying Agent.

Initially, The Bank of New York Trust Company, N.A. (the “Trustee”) will act as paying agent. The Issuer may change any paying agent without notice to the Holders.

 

  3. Indenture; Defined Terms.

This Note is one of the Floating Rate Notes due May 14, 2010 (the “Notes”) issued under an indenture dated as of January 13, 2006 (the “Base Indenture”) by and among the Issuer (formerly known as Ozark Holding Inc.), Oracle Systems Corporation (formerly known as Oracle Corporation) and Citibank, N.A. (the “Original Trustee”), as amended by a supplemental indenture dated as of May 9, 2007 (together with the Base Indenture, the “Indenture”) by and among the Issuer, the Original Trustee and the Trustee, and established pursuant to an Officers’ Certificate dated May 15, 2007, issued pursuant to Sections 2.01 and 2.03 of the Indenture. This Note is a “Security” and the Notes are “Securities” under the Indenture.


For purposes of this Note, unless otherwise defined herein, capitalized terms herein are used as defined in the Indenture. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by reference to the Trust Indenture Act of 1939 (15 U.S.C. Sections 77aaa-77bbbb) (the “TIA”) as in effect on the date on which the Indenture was qualified under the TIA. Notwithstanding anything to the contrary herein, the Notes are subject to all such terms, and holders of Notes are referred to the Indenture and the TIA for a statement of them. To the extent the terms of the Indenture and this Note are inconsistent, the terms of the Indenture shall govern.

 

  4. Denominations; Transfer; Exchange.

The Notes are in registered form, without coupons, in denominations of $2,000 and multiples of $1,000 thereafter. A Holder shall register the transfer or exchange of Notes in accordance with the Indenture. The Issuer may require a Holder, among other things, to furnish appropriate endorsements and transfer documents and to pay certain transfer taxes or similar governmental charges payable in connection therewith as permitted by the Indenture.

 

  5. Amendment; Supplement; Waiver.

Subject to certain exceptions, the Notes and the provisions of the Indenture relating to the Notes may be amended or supplemented and any existing default or Event of Default or compliance with certain provisions may be waived with the written consent of the Holders of at least a majority in aggregate principal amount of all series of Outstanding Securities (including the Notes) under the Indenture that are affected by such amendment, supplement or waiver (voting as a single class). Without notice to or consent of any Holder, the parties thereto may amend or supplement the Indenture and the Notes to, among other things, cure any ambiguity, defect or inconsistency or comply with any requirements of the Commission in connection with the qualification of the Indenture under the TIA, or make any other change that does not adversely affect the rights of any Holder of a Note.

 

  6. Defaults and Remedies.

If an Event of Default (other than certain bankruptcy Events of Default with respect to the Issuer) under the Indenture occurs with respect to the Notes and is continuing, then the Trustee may and, at the direction of the Holders of at least 25% in principal amount of the outstanding Notes, shall by written notice, require the Issuer to repay immediately the entire principal amount of the Outstanding Notes, together with all accrued and unpaid interest and premium, if any. If a bankruptcy Event of Default with respect to the Issuer occurs and is continuing, then the entire principal amount of the Outstanding Notes will


automatically become due immediately and payable without any declaration or other act on the part of the Trustee or any Holder. Holders of Notes may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee is not obligated to enforce the Indenture or the Notes unless it has received indemnity as it reasonably requires. The Indenture permits, subject to certain limitations therein provided, Holders of a majority in aggregate principal amount of the Notes then outstanding to direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Holders of Notes notice of certain continuing defaults or Events of Default if it determines that withholding notice is in their interest.

 

  7. Authentication.

This Note shall not be valid until the Trustee manually signs the certificate of authentication on this Note.

 

  8. Abbreviations and Defined Terms.

Customary abbreviations may be used in the name of a Holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with right of survivorship and not as tenants in common), CUST (= Custodian), and U/G/M/A (= Uniform Gifts to Minors Act).

 

  9. CUSIP Numbers.

Pursuant to a recommendation promulgated by the Committee on Uniform Security Identification Procedures, the Issuer has caused CUSIP numbers to be printed on the Notes as a convenience to the Holders of the Notes. No representation is made as to the accuracy of such numbers as printed on the Notes and reliance may be placed only on the other identification numbers printed hereon.

 

  10. Governing Law.

The laws of the State of New York shall govern the Indenture and this Note thereof.


ASSIGNMENT FORM

To assign this Note, fill in the form below:

I or we assign and transfer this Note to

(Print or type assignee’s name, address and zip code)

(Insert assignee’s soc. sec. or tax I.D. No.)

and irrevocably appoint                                      agent to transfer this Note on the books of the Issuer. The agent may substitute another to act for him.

 

 

Date:

 

 

   Your Signature:   

 

  

 

Sign exactly as your name appears on the other side of this Note.

    

 

     Signature
Signature Guarantee:     

 

    

 

Signature must be guaranteed      Signature

Signatures must be guaranteed by an “eligible guarantor institution” meeting the requirements of the Registrar, which requirements include membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other “signature guarantee program” as may be determined by the Registrar in addition to, or in substitution for, STAMP, all in accordance with the United States Securities Exchange Act of 1934, as amended.


SCHEDULE OF EXCHANGES OF NOTES

The following exchanges of a part of this Global Note for Physical Notes or a part of another Global Note have been made:

 

Date of Exchange

 

Amount of decrease
in principal amount
of this Global Note

 

Amount of increase
in principal amount
of this Global Note

 

Principal amount of
this Global Note
following such decrease (or
increase)

 

Signature of
authorized officer of
Trustee