EXHIBIT 4.1
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DEERE & COMPANY
TO
THE CHASE MANHATTAN BANK
(National Association),
Trustee
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Indenture
Dated as of July 1, 1994
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Providing for the Issuance
of
Senior Debt Securities
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DEERE & COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of July 1, 1994
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
INDENTURE, dated as of July 1, 1994, between DEERE & COMPANY, a
Delaware corporation (hereinafter called the "Company"), having its principal
office at John Deere Road, Moline, Illinois 61265 and THE CHASE MANHATTAN
BANK (National Association), a national banking association organized and
existing under the laws of the United States of America, as Trustee
(hereinafter called the "Trustee"), having its Corporate Trust Office at 4
Chase MetroTech Center, Brooklyn, New York 11245.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, which may or may
not be convertible into or exchangeable for any securities of any Person
(including the Company), and has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear such rates of interest,
to mature at such times and to have such other provisions as shall be fixed
as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities and
coupons, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA
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Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles.
"ACT", when used with respect to any Holder, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of
certain taxes imposed on certain Holders and which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AUTHENTICATING AGENT" means any authenticating agent appointed
by the Trustee pursuant to Section 611.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English language
or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in each place in connection
with which the term is used or in the financial community of each such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
"BEARER SECURITY" means any Security established pursuant to
Section 201 which is payable to bearer.
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"BOARD OF DIRECTORS" means the board of directors of the Company,
the executive committee or any committee of that board duly authorized to act
hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of
such certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of
Payment or particular location are authorized or obligated by law or
executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilires, S.A.,
or its successor.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a
written request or order signed in the name of the Company by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Comptroller or an Assistant Comptroller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"CONVERSION DATE" has the meaning specified in Section 312(d).
"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) any currency unit (or composite currency) other than the ECU for the
purposes for which it was established.
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"CORPORATE TRUST OFFICE" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 4
Chase MetroTech Center, Brooklyn, New York 11245.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer
Security.
"CURRENCY" means any currency or currencies, composite currency
or currency unit or currency units, including, without limitation, the ECU,
issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"ELECTION DATE" has the meaning specified in Section 312(h).
"EUROCLEAR" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"EUROPEAN COMMUNITIES" means the European Union, the European
Coal and Steel Community and the European Atomic Energy Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"EVENT OF DEFAULT" has the meaning specified in Article Five.
"EXCHANGE RATE AGENT", with respect to Securities of or within
any series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant
to Section 301 or Section 313.
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"EXCHANGE RATE OFFICER'S CERTIFICATE" means a certificate setting
forth (i) the applicable Market Exchange Rate or the applicable bid quotation
and (ii) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a
Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant currency or currency unit),
payable with respect to a Security of any series on the basis of such Market
Exchange Rate or the applicable bid quotation signed by the Treasurer, any
Vice President or any Assistant Treasurer of the Company.
"FOREIGN CURRENCY" means any Currency, including, without
limitation, the ECU issued by the government of one or more countries other
than the United States of America or by any recognized confederation or
association of such governments.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America or the government which issued
the Foreign Currency in which the Securities of a particular series are
payable, for the payment of which its full faith and credit is pledged or
(ii) obligations of a Person controlled or supervised by and acting as an
agency or instrumentality of the United States of America or such government
which issued the Foreign Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed as a full faith
and credit obligation by the United States of America or such other
government, which, in either case, are not callable or redeemable at the
option of the issuer thereof, and shall also include a depository receipt
issued by a bank or trust company as custodian with respect to any such
Government Obligation or a specific payment of interest on or principal of
any such Government Obligation held by such custodian for the account of the
holder of a depository receipt; PROVIDED that (except as required by law)
such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by
the custodian in respect of the Government Obligation or the specific payment
of interest on or principal of the Government Obligation evidenced by such
depository receipt.
"HOLDER" means, in the case of a Registered Security, the Person
in whose name a Security is registered in the Security Register and, in the
case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions
hereof, and shall include the terms of particular series of Securities
established as contemplated by Section 301; PROVIDED, HOWEVER, that, if at
any time more than one Person is acting as Trustee under this instrument,
"Indenture" shall mean, with respect to any one or more series of Securities
for which such Person is Trustee, this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof and shall include the terms of the or those particular
series of Securities for
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which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or
terms adopted by means of one or more indentures supplemental hereto
executed and delivered after such Person had become such Trustee but to which
such Person, as such Trustee, was not a party.
"INDEXED SECURITY" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are
determined by reference to prices, changes in prices, or differences between
prices, of securities, Currencies, intangibles, goods, articles or
commodities or by such other objective price, economic or other measures as
are specified in Section 301 hereof.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section
1004, includes such Additional Amounts.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MARKET EXCHANGE RATE" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency
on the other, the exchange rate between the relevant currency unit and
Dollars or such Foreign Currency calculated by the method specified pursuant
to Section 301 for the Securities of the relevant series, (ii) for any
conversion of Dollars into any Foreign Currency, the noon buying rate for
such Foreign Currency for cable transfers quoted in New York City as
certified for customs purposes by the Federal Reserve Bank of New York and
(iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased with the
Foreign Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for Dollars or
such purchased Foreign Currency, in each case determined by the Exchange Rate
Agent. Unless otherwise specified with respect to any Securities pursuant to
Section 301, in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate
Agent shall use, in its sole discretion and without liability on its part,
such quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in New York City,
London or other principal market for such currency or currency unit in
question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there
is more than one market for dealing in any currency or currency unit by
reason of foreign exchange regulations
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or otherwise, the market to be used in respect of such currency or currency
unit shall be that upon which a nonresident issuer of securities designated
in such currency or currency unit would purchase such currency or currency
unit in order to make payments in respect of such securities.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment, notice of exchange or conversion or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman, the President or any Vice President and by the Treasurer, an
Assistant Treasurer, the Comptroller or an Assistant Comptroller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
be counsel for the Company or who may be an employee of or other counsel for
the Company.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto, PROVIDED
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
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(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by TIA Section 313, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an Exchange
Rate Officer's Certificate delivered to the Trustee, of the principal amount
(or, in the case of an Original Issue Discount Security or Indexed Security,
the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above or (iii) below, respectively) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee actually knows to be so owned shall be so disregarded.
Securities so owned which have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee the
pledgee's right so to act with respect to such Securities and that the
pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay
the principal of (or premium, if any) or interest, if any, on any Securities
or coupons on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or any agency or political subdivision thereof.
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"PLACE OF PAYMENT", when used with respect to the Securities of
or within any series, means the place or places where the principal of (and
premium, if any) and interest, if any, on such Securities are payable as
specified and as contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 306 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security or
a Security to which a mutilated, destroyed, lost or stolen coupon appertains
shall be deemed to evidence the same debt as the mutilated, destroyed, lost
or stolen Security or the Security to which the mutilated, destroyed, lost or
stolen coupon appertains.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGISTERED SECURITY" shall mean any Security which is registered
in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the
date specified for that purpose as contemplated by Section 301, whether or
not a Business Day.
"REPAYMENT DATE" means, when used with respect to any Security to
be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any Security
to be repaid at the option of the Holder, the price at which it is to be
repaid by or pursuant to this Indenture.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; PROVIDED,
HOWEVER, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities" with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any
series as to which such Person is not Trustee.
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"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest
on the Registered Securities of or within any series means a date fixed by
the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date
specified in such Security or a coupon representing such installment of
interest as the fixed date on which the principal of such Security or such
installment of principal or interest is due and payable, as such date may be
extended pursuant to the provisions of Section 308.
"SUBSIDIARY" means any corporation a majority of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by
one or more other Subsidiaries of the Company. For the purposes of this
definition, "voting stock" means stock having voting power for the election
of directors, whether at all times or only so long as no senior class of
stock has such voting power by reason of any contingency.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean
only the Trustee with respect to Securities of that series.
"UNITED STATES" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, the United States of America
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal
income taxation regardless of its source.
"VALUATION DATE" has the meaning specified in Section 312(c).
"YIELD TO MATURITY" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such
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Security) and as set forth in such Security in accordance with generally
accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1005) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or
a certificate or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate
or representations
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may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information as to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations as to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities
of all series or one or more series, as the case may be, may be embodied in
and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agents duly appointed in writing. If
Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of Securities of
such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments or so
voting at any such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(b) The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may be proved
in any manner that the Trustee deems reasonably sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the
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Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4) such
Bearer Security is no longer Outstanding. The ownership of Bearer Securities
may also be proved in any other manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or pursuant
to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than
the date such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be computed
as of such record date; PROVIDED that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the
14
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration Division, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address
as it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as provided
herein. Any notice mailed to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder, whether or not
such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to
give such notice by mail, then such notification to Holders of Registered
Securities as shall be made with the approval of the Trustee shall constitute
a sufficient notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be
specified in such Securities on a Business Day, such publication to be not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. Any such notice shall be deemed to
have been given on the date of such publication or, if published more than
once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of
such notice with respect to other Holders of Bearer
15
Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying
Agent, any Authenticating Agent and their successors hereunder and the
Holders any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the law of
the State of New York without regard to principles of conflicts of laws.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or any Security or coupon other than a provision in the Securities
of any series which specifically states that such provision shall apply
16
in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date, Redemption
Date, Repayment Date or sinking fund payment date, or at the Stated Maturity
or Maturity; PROVIDED that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities, if
any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established
in one or more indentures supplemental hereto or approved from time to time
by or pursuant to a Board Resolution in accordance with Section 301, shall
have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
coupons, as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication shall be
in substantially the following form:
17
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
By___________________________
Authorized Officer
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities
of or within a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (8) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement, delivery or
redelivery of a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to
any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if
18
any, on any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent
of the Company and the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security
(i) in the case of a permanent global Security in registered form, the Holder
of such permanent global Security in registered form, or (ii) in the case of
a permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities shall rank equally and pari passu and may be
issued in one or more series. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board
Resolutions and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable (each of which (except for
the matters set forth in clauses (1), (2) and (15) below), if so provided,
may be determined from time to time by the Company with respect to unissued
Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of the Securities
of the series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be
19
determined, the Interest Payment Dates on which such interest will be
payable and the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, or the method
by which such date shall be determined, and the basis upon which such
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the Currency or Currencies in which, and other terms and
conditions upon which Securities of the series may be redeemed, in whole
or in part, at the option of the Company, if the Company is to have the
option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or prices
at which, the Currency or Currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other than
denominations of $5,000, the denomination or denominations in which any
Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency or Currencies in which
payment of the principal of (or premium, if any) or interest, if any, on
the Securities of the series shall be made or in which the Securities of
the series shall be denominated and the
20
particular provisions applicable thereto in accordance with, in addition
to or in lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in one or more Currencies other than that
in which such Securities are denominated or stated to be payable, the
period or periods within which (including the Election Date), and the
terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency or
Currencies in which such Securities are denominated or stated to be
payable and the Currency or Currencies in which such Securities are to be
paid, in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section 1008) of
the Company with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided
in Section 305, and, if Registered Securities of the series are to be
issuable as a global Security, the identity of the depository for such
series;
21
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner
in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature,
and the extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(21) whether, under what circumstances and the Currency in which,
the Company will pay Additional Amounts as contemplated by Section 1004 on
the Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so, whether
the Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(22) the designation of the initial Exchange Rate Agent, if any;
(23) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirements of
the Trust Indenture Act).
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the
22
same time and, unless otherwise provided, a series may be reopened, without
the consent of the Holders, for issuances of additional Securities of such
series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy
of an appropriate record of such action(s) shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the Securities of such series.
SECTION 302. DENOMINATIONS. The Securities of each series shall
be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the Securities
of any series, the Registered Securities of such series, other than
Registered Securities issued in global form (which may be of any
denomination) shall be issuable in denominations of $1,000 and any integral
multiple thereof, and the Bearer Securities of such series, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in a denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed on
behalf of the Company by its Chairman, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures
of the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company, to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities;
PROVIDED, HOWEVER, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and PROVIDED FURTHER that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate
in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to
23
any series of Securities pursuant to Section 301, dated no earlier than 15
days prior to the earlier of the date on which such Bearer Security is
delivered and the date on which any temporary Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such
temporary Security and this Indenture. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with
its original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and cancelled. If all the
Securities of any series are not to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon,
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any
coupons have been established in conformity with the provisions of
this Indenture;
(b) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid
and binding obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, to
general equitable principles and to such other qualifications as
such counsel shall conclude do not materially affect the rights of
Holders of such Securities and any coupons; and
(ii) an Officers' Certificate stating, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
24
Notwithstanding the provisions of Section 301 and of this Section
303, if all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order, Opinion of Counsel or Officers'
Certificate otherwise required pursuant to the preceding paragraph at the
time of issuance of each Security of such series, but such order, opinion and
certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the generality of the foregoing, the Trustee will not be
required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties
with respect to such Securities.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
specified as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
310 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more coupons
or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as conclusively evidenced by their
25
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with Section 304(b) or as otherwise provided
in or pursuant to a Board Resolution), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in
a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations; PROVIDED, HOWEVER, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and PROVIDED FURTHER that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of such
series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary
or common depositary (the "Common Depositary"), for the benefit of Euroclear
and CEDEL, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, permanent global bearer form or permanent
global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified,
as requested by
26
the beneficial owner thereof; PROVIDED, HOWEVER, that, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form
set forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and PROVIDED FURTHER that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account holder
instructs Euroclear or CEDEL, as the case may be, to request such exchange on
his behalf and delivers to Euroclear or CEDEL, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like unless such Person takes delivery of such definitive Securities in
person at the offices of Euroclear or CEDEL. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear
and CEDEL to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other forms as may be
established pursuant to Section 301), for credit without further interest on
or after such Interest Payment Date to the respective accounts of Persons who
are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL, as the case
may be, a certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form set forth as
Exhibit A-1 to this Indenture (or in such other forms as may be established
pursuant to Section 301). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall satisfy
the certification requirements of the preceding
27
two paragraphs of this Section 304(b) and of the third paragraph of Section
303 of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal (or premium, if any) or interest, if any,
owing with respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive Security. Any
interest so received by Euroclear and CEDEL and not paid as herein provided
shall be returned to the Trustee prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such
office or in any such office or agency of the Company in a Place of Payment
being herein sometimes referred to collectively as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. The Trustee, at its Corporate Trust Office, is
hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to examine the
Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series, of any
authorized denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions, upon surrender of the
Registered Securities to be exchanged at any such office or agency. Whenever
any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301, Bearer Securities may not be issued in exchange
for Registered Securities.
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If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any
such unmatured coupon or coupons or matured coupon or coupons in default, any
such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent any such missing coupon
in respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; PROVIDED, HOWEVER, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the
same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of
an interest in a permanent global Security is entitled to exchange such
interest for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in
any event not later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the Trustee definitive
29
Securities in aggregate principal amount equal to the principal amount of
such beneficial owner's interest in such permanent global Security, executed
by the Company. On or after the earliest date on which such interests may be
so exchanged, such permanent global Security shall be surrendered by the
Common Depositary or such other depositary as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such permanent global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 301, shall be in the form
of Bearer Securities or Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof; PROVIDED, HOWEVER, that
no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities to be redeemed and ending
on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and PROVIDED FURTHER
that no Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for any
portion of a permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing
the same debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or
30
exchange of Securities, other than exchanges pursuant to Section 304, 906,
1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business
15 days before selection of the Securities to be redeemed under Section 1103
and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice
of redemption and (B) if such Securities are issuable as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if
such Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that
series and like tenor, PROVIDED that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not
to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon appertaining
to it is surrendered to the Trustee or the Company, together with, in proper
cases, such security or indemnity as may be required by the Company or the
Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or
to the Security to which such destroyed, lost or stolen coupon appertains.
31
Notwithstanding the provisions of the previous two paragraphs, in
case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or
stolen coupon appertains, pay such Security or coupon; PROVIDED, HOWEVER,
that payment of principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of
the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET. (a) Except as otherwise specified with respect to
a series of Securities in accordance with the provisions of Section 301,
interest, if any, on any Registered Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each installment of
interest, if any, on any Registered Security may at the Company's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the address
of such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee inside the United States.
32
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account maintained
by the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with
respect to that portion of such permanent global Security held for its
account by the Common Depositary, for the purpose of permitting each of
Euroclear and CEDEL to credit the interest, if any, received by it in respect
of such permanent global Security to the accounts of the beneficial owners
thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on
the next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on
any Registered Security of any series that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment (which shall not be less than 20 days
after such notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the Currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
33
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series
at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions
of this Indenture.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to
such Section 301). The interest rate (or the spread or spread multiplier used
to calculate such interest rate, if applicable) on any Security of such
series may be reset by the Company on the date or dates specified on the face
of such Security (each an "Optional Reset Date"). The Company may exercise
such option with respect to such Security by notifying the Trustee of such
exercise at least 45 but not more than 60 days prior to an Optional Reset
Date for such Security. Not later than 40 days prior to each Optional Reset
Date, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of any such Security a notice (the "Reset Notice") indicating
whether the Company has elected to reset the interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable), and
if so (i) such new interest rate (or such new spread or spread
34
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset
Date or if there is no such next Optional Reset Date, to the Stated Maturity
Date of such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which
and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest
rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such
interest rate, if applicable) that is higher than the interest rate (or the
spread or spread multiplier, if applicable) provided for in the Reset Notice,
for the Subsequent Interest Period by causing the Trustee to transmit, in the
manner provided for in Section 106, notice of such higher interest rate (or
such higher spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to
which the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) is reset on an Optional Reset Date, and
with respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant
to the next succeeding paragraph, will bear such higher interest rate (or
such higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders except that the
period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 days prior to such Optional Reset Date and except that, if
the Holder has tendered any Security for repayment pursuant to the Reset
Notice, the Holder may, by written notice to the Trustee, revoke such tender
or repayment until the close of business on the tenth day before such
Optional Reset Date.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
SECTION 308. OPTIONAL EXTENSION OF MATURITY. The provisions of
this Section 308 may be made applicable to any series of Securities pursuant
to Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity of any Security
of such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period")
up to but not beyond the date (the "Final Maturity") set forth on the
35
face of such Security. The Company may exercise such option with respect to
any Security by notifying the Trustee of such exercise at least 45 but not
more than 60 days prior to the Stated Maturity of such Security in effect
prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity,
(ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to
the Extension Period and (iv) the provisions, if any, for redemption during
such Extension Period. Upon the Trustee's transmittal of the Extension
Notice, the Stated Maturity of such Security shall be extended automatically
and, except as modified by the Extension Notice and as described in the next
paragraph, such Security will have the same terms as prior to the transmittal
of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Stated Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal
amount thereof, plus interest accrued to such date. In order to obtain
repayment on the Original Stated Maturity once the Company has extended the
Stated Maturity thereof, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders, except that the
period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 days prior to the Original Stated Maturity and except that,
if the Holder has tendered any Security for repayment pursuant to an
Extension Notice, the Holder may by written notice to the Trustee revoke such
tender for repayment until the close of business on the tenth day before the
Original Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS. Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose
name such Registered Security is registered as the owner of such Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such
Registered Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat
36
the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depositary, as a
Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 310. CANCELLATION. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and Securities
and coupons surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered
shall be promptly cancelled by the Trustee. If the Company shall so acquire
any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation.
No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it.
SECTION 311. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest, if any, on the Securities of each series shall be computed
on the basis of a 360-day year consisting of twelve 30-day months.
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SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF
SECURITIES. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the
Holders of which have not made the election provided for in paragraph (b)
below, and with respect to Bearer Securities of any series, except as
provided in paragraph (d) below, payment of the principal of (and premium, if
any) and interest, if any, on any Registered or Bearer Security of such
series will be made in the Currency in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this
Section 312 may be modified or superseded with respect to any Securities
pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of
(or premium, if any) or interest, if any, on such Registered Securities in
any of the Currencies which may be designated for such election by delivering
to the Trustee for such series of Registered Securities a written election
with signature guarantees and in the applicable form established pursuant to
Section 301, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such Currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the
close of business on the Election Date immediately preceding the next payment
date to be effective for the payment to be made on such payment date and no
such change of election may be made with respect to payments to be made on
any Registered Security of such series with respect to which an Event of
Default has occurred or with respect to which the Company has deposited funds
pursuant to Article Four or Fourteen or with respect to which a notice of
redemption has been given by the Company or a notice of option to elect
repayment has been sent by such Holder or such transferee). Any Holder of
any such Registered Security who shall not have delivered any such election
to the Trustee of such series of Registered Securities not later than the
close of business on the applicable Election Date will be paid the amount due
on the applicable payment date in the relevant Currency as provided in
Section 312(a). The Trustee for each such series of Registered Securities
shall notify the Exchange Rate Agent as soon as practicable after the
Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not
later than the fourth Business Day after the Election Date for each payment
date for Registered Securities of any series, the Exchange Rate Agent will
deliver to the Company a written notice specifying the Currency in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any) and interest, if any, on the
Registered Securities to be paid on such
38
payment date, specifying the amounts in such Currency so payable in respect
of the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency
as provided in paragraph (b) above. If the election referred to in paragraph
(b) above has been provided for pursuant to Section 301 and if at least one
Holder has made such election, then, unless otherwise specified pursuant to
Section 301, on the second Business Day preceding such payment date the
Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency
or Currencies amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate
in effect on the second Business Day (the "Valuation Date") immediately
preceding each payment date, and such determination shall be conclusive and
binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then
with respect to each date for the payment of principal of (and premium, if
any) and interest, if any on the applicable Securities denominated or payable
in such Foreign Currency occurring after the last date on which such Foreign
Currency was used (the "Conversion Date"), the Dollar shall be the currency
of payment for use on each such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar amount to be paid by the Company to the
Trustee of each such series of Securities and by such Trustee or any Paying
Agent to the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above,
and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election; and if a Conversion Event occurs with
respect to the Currency in which payment would have been made in the absence
of such election, such Holder shall receive payment in Dollars as provided in
paragraph (d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
39
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting
the Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for such Component Currency on the Valuation Date with respect
to each payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "COMPONENT CURRENCY" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the ECU.
A "SPECIFIED AMOUNT" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by
an amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall thereafter
be a Specified Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of
such two or more currencies, having an aggregate Dollar Equivalent
value at the Market Exchange Rate on the date of such replacement
equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately
before such division, and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency
unit, including, but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on
the Conversion Date of such Component Currency.
40
"ELECTION DATE" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior
to Maturity, as the case may be, or such other prior date for any
series of Registered Securities as specified pursuant to clause 13
of Section 301 by which the written election referred to in
Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit, the Market Exchange Rate and changes in the
Specified Amounts as specified above shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company, the Trustee for the appropriate series
of Securities and all Holders of such Securities denominated or payable in
the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee for the appropriate series of
Securities of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the
appropriate series of Securities and to the Exchange Rate Agent (and such
Trustee will promptly thereafter give notice in the manner provided in
Section 106 to the affected Holders) specifying the Conversion Date. In the
event the Company so determines that a Conversion Event has occurred with
respect to the ECU or any other currency unit in which Securities are
denominated or payable, the Company will immediately give written notice
thereof to the Trustee of the appropriate series of Securities and to the
Exchange Rate Agent (and such Trustee will promptly thereafter give notice in
the manner provided in Section 106 to the affected Holders) specifying the
Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event the Company determines in good faith that any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly give written
notice to the Trustee of the appropriate series of Securities and to the
Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received
by it from the Company and the Exchange Rate Agent and shall not otherwise
have any duty or obligation to determine the accuracy or validity of such
information independent of the Company or the Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE
RATE AGENT. (a) Unless otherwise specified pursuant to Section 301, if and
so long as the Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make
41
the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued Foreign Currency into the applicable payment Currency for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor
Exchange Rate Agent as evidenced by a written instrument delivered to the
Company and the Trustee of the appropriate series of Securities accepting
such appointment executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with
respect to the Securities of that or those series (it being understood that
any such successor Exchange Rate Agent may be appointed with respect to the
Securities of one or more or all of such series and that, unless otherwise
specified pursuant to Section 301, at any time there shall only be one
Exchange Rate Agent with respect to the Securities of any particular series
that are originally issued by the Company on the same date and that are
initially denominated and/or payable in the same Currency).
SECTION 314. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so,
the Trustee shall indicate the "CUSIP" numbers of the Securities in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon Company Request cease to be of further effect with
respect to any series of Securities specified in such Company Request (except
as to any surviving rights of registration of transfer or exchange of
Securities of such series expressly provided for herein or pursuant hereto
and any right to receive Additional Amounts, as provided in Section 1004),
and the Trustee, upon receipt of a Company Order, and at the expense of the
Company, shall execute
42
proper instruments acknowledging satisfaction and discharge of this Indenture
as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Section 305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106,
and (iv) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in
which the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
43
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with
the Trustee pursuant to Section 401 shall be held in trust and applied by it,
in accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited
with or received by the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default", wherever
used herein with respect to any particular series of Securities, means any
one of the following events (whatever the reason for such Event of Default
and whether or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series or of any coupon appertaining thereto, when such interest or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable at
its Maturity; or
44
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture with respect to any Security of
that series (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days; or
(7) any other Event of Default provided with respect to
Securities of that series.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
45
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities
are Original Issue Discount Securities or Indexed Securities, such portion of
the principal as may be specified in the terms thereof) of all the Securities
of that series to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)):
(A) all overdue installments of interest, if any, on all
Outstanding Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) all
Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium, if any)
or interest on Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
46
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Security of any series and any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of Securities of such series and coupons, the
whole amount then due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installments of
interest, if any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon Securities
of such series and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of any overdue principal, premium or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise:
47
(i) to file and prove a claim for the whole amount of principal
(or in the case of Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be provided for in the
terms thereof) (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized
by each Holder of Securities of such series and coupons to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and any predecessor Trustee, their agents and
counsel, and any other amounts due the Trustee or any predecessor Trustee
under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS. All rights of action and claims under this Indenture
or any of the Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities and coupons in respect of
which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal (or premium, if any)
or interest, if any, upon presentation of the Securities or coupons, or both,
as the case may be, and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
48
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest,
if any, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities and
coupons for principal (and premium, if any) and interest, if any,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company or
any other Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
49
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and
premium, if any) and (subject to Sections 305 and 307) interest, if any, on
such Security or payment of such coupon on the respective due dates expressed
in such Security or coupon (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee
or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission
of the Trustee or of any Holder of any Security or coupon to exercise any
right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders of a
majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
PROVIDED that
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(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it
in personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series and
any related coupons waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related coupons,
or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any Default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided
in TIA Section 313(c), notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; PROVIDED, HOWEVER, that,
except in the case of a Default in the payment of the principal of (or
premium, if any) or interest, if any, on any Security of such series, or in
the payment of any sinking or purchase fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders of the Securities and coupons of such series; and PROVIDED
FURTHER that in the case of any Default or breach of the character specified
in Section 501(4) with respect to the Securities and coupons of such series,
no such notice to Holders shall be given until at least 60 days after the
occurrence thereof.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(2) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution.
(3) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon a Board Resolution, an Opinion of Counsel
or an Officers' Certificate.
(4) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect
52
of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(5) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(6) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
(7) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(8) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth
53
therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar, Authenticating
Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) To pay to the Trustee from time to time such compensation for
all services rendered by it hereunder as has been agreed upon in writing
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust).
(2) Except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith.
(3) To indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its own part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (or premium, if any) or
interest, if any, on particular Securities or any coupons.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA
54
Section 310(a)(1) and shall have a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607(a) and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who has been
a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court
55
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving
of a notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series). If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner hereinafter provided, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to
56
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or
57
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities or coupons
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force
and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. Any
such appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be
promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant
to Section 301, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the
United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $1,500,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. In case at
any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger,
58
conversion or consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for such series
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve in the manner set forth in Section 106. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
By __________________________
as Authenticating Agent
59
By __________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA
Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after May 15 of
each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to
all Holders of Securities as provided in TIA Section 313(c) a brief report
dated as of such May 15 if required by TIA Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee of the listing of the
Securities on any stock exchange.
SECTION 703. REPORTS BY COMPANY. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of such
Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
60
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. CALCULATION OF ORIGINAL ISSUE DISCOUNT. Upon
request of the Trustee, the Company shall file with the Trustee promptly at
the end of each calendar year a written notice specifying the amount of
original issue discount (including daily rates and accrual periods), if any,
accrued on Outstanding Securities as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge with or into any other
corporation or convey or transfer its properties and assets substantially as
an entirety to any Person, unless:
(1) either the Company shall be the continuing corporation, or
the corporation (if other than the Company) formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company
substantially as an entirety shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest, if any, on all the Securities and
the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing;
(3) if as a result thereof any property or assets of the Company
or a Restricted Subsidiary would become subject to any mortgage, lien,
pledge, charge or other encumbrance not permitted by (i) through (xi) of
paragraph (a) of Section 1006 or paragraph (b) of Section 1006, compliance
shall be effected with the first clause of paragraph (a) of Section 1006;
and
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(4) the Company and the successor Person have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor had been named as the Company herein; and in the
event of any such conveyance or transfer, the Company shall be discharged
from all obligations and covenants under this Indenture and the Securities
and coupons and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of such series); PROVIDED, HOWEVER, that in respect of any
such additional Events of Default such supplemental indenture may provide
for a particular period of grace after default (which period may be
shorter or longer than that
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allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 801 or 1006, or otherwise; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including
the provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; PROVIDED that such action shall not adversely affect
the interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; PROVIDED that any such action shall
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not adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of all Outstanding Securities affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on,
any Security; or reduce the principal amount thereof or the rate of
interest thereon, or any premium payable upon the redemption thereof,
or change any obligation of the Company to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the portion of the principal of
an Original Issue Discount Security or Indexed Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any
Place of Payment where, or the Currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at
the option of the Holder, on or after the Redemption Date or the
Repayment Date, as the case may be), or adversely affect any right to
convert or exchange any Security as may be provided pursuant to Section
301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements
of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not
such Holders remain Holders after such record date; provided, that unless
such consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the date which is 90 days after such
record date, any such consent previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall, if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be
65
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of such series of Securities, any coupons
appertaining thereto and this Indenture. Any interest due on Bearer
Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1004 in respect of principal of (or premium,
if any, on) such a Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. Unless otherwise specified with
respect to Securities of any series pursuant to Section 301, at the option of
the Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of
a series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration
of transfer or exchange, where Securities of that series that are convertible
or exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of
a series are issuable as Bearer Securities, the Company will maintain (A) in
the Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served and where
Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside
66
the United States, an office or agency where Securities of that series and
related coupons may be presented and surrendered for payment; PROVIDED,
HOWEVER, that if the Securities of that series are listed on the Luxembourg
Stock Exchange or any other stock exchange located outside the United States
and such stock exchange shall so require, the Company will maintain a Paying
Agent for the Securities of that series in Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of
each such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment at the offices specified in the
Security, in London, England, and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and
demands, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are payable in
Dollars, payment of principal of (and premium, if any) and interest, if any,
on any Bearer Security shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest,
as the case may be, at all offices or agencies outside the United States
maintained for such purpose by the Company in accordance with this Indenture,
is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of such purposes, and may from time
to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any Securities
pursuant
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to Section 301 with respect to a series of Securities, the Company hereby
designates as Places of Payment for each series of Securities the office or
agency of the Company in the Borough of Manhattan, The City of New York, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent
in such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i)
are denominated in a currency other than Dollars or (ii) may be payable in a
currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one Exchange Rate
Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect to
any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (or premium, if any) or interest, if any,
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency in which
68
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to
pay the principal of (and premium, if any) and interest, if any, on
Securities of such series so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and
payable shall be paid to the Company upon Company Request or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal, premium or interest on any Security,
without interest thereon, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS. If the Securities of a series
provide for the payment of Additional Amounts, the Company will pay to the
Holder of a Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as
69
contemplated by Section 301. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series or payment of any related
coupon or the net proceeds received on the sale or exchange of any Security
of any series, such mention shall be deemed to include mention of the payment
of Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to such
terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is
not made.
Except as otherwise specified as contemplated by Section 301, if
the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal
and any premium is made), and at least 10 days prior to each date of payment
of principal, premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal, premium or interest on the Securities of that series
shall be made to Holders of Securities of that series or any related coupons
who are not United States persons without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities
of the series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities of that series
or related coupons and the Company will pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities. In
the event that the Trustee or any Paying Agent, as the case may be, shall not
so receive the above-mentioned certificate, then the Trustee or such Paying
Agent shall be entitled (i) to assume that no such withholding or deduction
is required with respect to any payment of principal or interest with respect
to any Securities of a series or related coupons until it shall have received
a certificate advising otherwise and (ii) to make all payments of principal
and interest with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the
Company's not furnishing such an Officers' Certificate.
SECTION 1005. STATEMENT AS TO COMPLIANCE. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
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Indenture. For purposes of this Section 1005, such compliance shall be
determined without regard to any period of grace or requirement of notice
under this Indenture.
SECTION 1006. LIMITATION ON LIENS. (a) The Company will not,
nor will it permit any Restricted Subsidiary to, issue, incur, assume or
guarantee any debt (hereinafter in this Article Ten referred to as "Debt")
secured by any mortgage, security interest, pledge, lien or other encumbrance
(hereinafter called "mortgage" or "mortgages") upon any Important Property of
the Company or of a Restricted Subsidiary or upon any shares of stock or
indebtedness of any Restricted Subsidiary (whether such Important Property,
shares of stock or indebtedness is now owned or hereafter acquired) without
in any such case effectively providing, concurrently with the issuance,
incurrence, assumption or guaranty of any such Debt, that the Securities
(together with, if the Company shall so determine, any other indebtedness of
or guaranteed by the Company or such Restricted Subsidiary ranking equally
with the Securities and then existing or thereafter created) shall be secured
equally and ratably with or prior to such Debt; PROVIDED, HOWEVER, that the
foregoing restrictions shall not apply to
(i) mortgages on any property acquired, constructed or improved
by the Company or any Restricted Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with, or within
120 days after, such acquisition, construction or improvement to secure or
provide for the payment of all or any part of the purchase price of such
property or the cost of such construction or improvement incurred after
the date of this Indenture, or (in addition to mortgages contemplated by
clauses (ii), (iii) and (iv) below) mortgages on any property existing at
the time of acquisition thereof; PROVIDED that such mortgages shall not
apply to any Important Property theretofore owned by the Company or any
Restricted Subsidiary other than, in the case of any such construction or
improvement, any theretofore unimproved real property on which the
property so constructed, or the improvement, is located;
(ii) mortgages on any property, shares of stock, or indebtedness
existing at the time of acquisition thereof from a corporation which is
consolidated with or merged into, or substantially all of the assets of
which are acquired by, the Company or a Restricted Subsidiary;
(iii) mortgages on property of a corporation existing at the time
such corporation becomes a Restricted Subsidiary;
(iv) mortgages to secure Debt of a Restricted Subsidiary to the
Company or to another Restricted Subsidiary;
(v) mortgages in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, to
secure partial, progress, advance or other
71
payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of constructing or improving the
property subject to such mortgages and mortgages given to secure
indebtedness incurred in connection with the financing of construction
of pollution control facilities, the interest on which indebtedness is
exempt from income taxes under the Internal Revenue Code of the United
States of America;
(vi) any deposit or pledge of assets (1) with any surety
company or clerk of any court, or in escrow, as collateral in
connection with, or in lieu of, any bond on appeal from any judgment or
decree against the Company or a Restricted Subsidiary, or in connection
with other proceedings or actions at law or in equity by or against the
Company or a Restricted Subsidiary, or (2) as security for the
performance of any contract or undertaking not directly or indirectly
related to the borrowing of money or the securing of indebtedness, if
made in the ordinary course of business, or (3) with any governmental
agency, which deposit or pledge is required or permitted to qualify the
Company or a Restricted Subsidiary to conduct business, to maintain
self-insurance, or to obtain the benefits of any law pertaining to
workers' compensation, unemployment insurance, old age pensions, social
security, or similar matters, or (4) made in the ordinary course of
business to obtain the release of mechanics', workmen's, repairmen's,
warehousemen's or similar liens, or the release of property in the
possession of a common carrier;
(vii) mortgages existing on property acquired by the Company or
a Restricted Subsidiary through the exercise of rights arising out of
defaults on receivables acquired in the ordinary course of business;
(viii) judgment liens, so long as the finality of such judgment is
being contested in good faith and execution thereon is stayed;
(ix) mortgages for the sole purpose of extending, renewing or
replacing in whole or in part Debt secured by any mortgage referred to in
the foregoing clauses (i) to (viii), inclusive, or in this clause (ix);
PROVIDED, HOWEVER, that the principal amount of Debt secured thereby shall
not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which
secured the mortgage so extended, renewed or replaced (plus improvements
on such property);
(x) liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by appropriate
proceedings; landlord's liens on property held under lease; and any other
liens of a nature similar to those hereinabove described in this clause
(x) which do not, in the opinion of the Company, materially impair the
use
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of such property in the operation of the business of the Company or a
Restricted Subsidiary or the value of such property for the purposes of
such business;
(xi) any transaction characterized as a sale of receivables
(retail or wholesale) but reflected as secured indebtedness on a balance
sheet in conformity with generally accepted accounting principles then in
effect;
(xii) mortgages on Margin Stock owned by the Company and its
Restricted Subsidiaries to the extent such Margin Stock so mortgaged
exceeds 25% of the fair market value of the sum of the Important Property
of the Company and the Restricted Subsidiaries plus the shares of stock
(including Margin Stock) and indebtedness issued or incurred by the
Restricted Subsidiaries; and
(xiii) mortgages on any Important Property of, or any shares of
stock or indebtedness issued or incurred by, any Restricted Subsidiary
organized under the laws of Canada.
(b) The provisions of paragraph (a) of this Section 1006 shall
not apply to the issuance, incurrence, assumption or guarantee by the Company
or any Restricted Subsidiary of Debt secured by a mortgage which would
otherwise be subject to the foregoing restrictions up to an aggregate amount
which, together with all other Debt of the Company and its Restricted
Subsidiaries that is secured by mortgages (other than mortgages permitted by
paragraph (a) of this Section 1006) and would otherwise be subject to the
foregoing restrictions and the Attributable Debt in respect of Sale and
Lease-back Transactions (as defined in Section 1007) in existence at such
time (other than Sale and Lease-back Transactions which, if the Attributable
Debt in respect of such Sale and Lease-back had been a mortgage, would have
been permitted by subdivision (i) of paragraph (a) of this Section 1006 and
other Sale and Lease-back Transactions the proceeds of which have been
applied or committed to be applied in accordance with paragraph (b) or (c) of
Section 1007) does not at the time exceed 5% of Consolidated Net Tangible
Assets, as shown on the audited consolidated balance sheet contained in the
latest annual report to stockholders of the Company.
The term "RESTRICTED SUBSIDIARY" shall mean any Subsidiary (i)
engaged in, or whose principal assets consist of property used by the Company
or any Restricted Subsidiary in, the manufacture of products within the
United States of America or Canada, or in the sale of products principally to
customers located in the United States of America or Canada except any
corporation which is a retail dealer in which the Company has, directly or
indirectly, an investment under an arrangement providing for the liquidation
of such investment, or (ii) which the Company shall designate as a Restricted
Subsidiary in an Officers' Certificate delivered to the Trustee.
The term "IMPORTANT PROPERTY" shall mean (i) any manufacturing
plant, including land, all buildings and other improvements thereon, and all
manufacturing
73
machinery and equipment located therein, used by the Company or a Restricted
Subsidiary primarily for the manufacture of products to be sold by the
Company or such Restricted Subsidiary, (ii) the executive office and
administrative building of the Company in Moline, Illinois, and (iii)
research and development facilities, including land and buildings and other
improvements thereon and research and development machinery and equipment
located therein, except in any case property of which the aggregate fair
value as determined by the Board of Directors does not at the time exceed 1%
of Consolidated Net Tangible Assets, as shown on the audited consolidated
balance sheet contained in the latest annual report to stockholders of the
Company.
The term "CONSOLIDATED NET TANGIBLE ASSETS" shall mean the
aggregate amount of assets (less applicable reserves and other items properly
deductible in accordance with generally accepted accounting principles) of
the Company and of its consolidated Subsidiaries after deducting therefrom
(a) all current liabilities (excluding any constituting funded debt, as
defined in Section 1007, by reason of their being renewable or extendable)
and (b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles.
The term "ATTRIBUTABLE DEBT" shall mean, as of any particular
time, the present value, discounted at a rate per annum equal to the weighted
average interest rate of all Securities Outstanding at the time under this
Indenture compounded semiannually, of the obligation of a lessee for rental
payments during the remaining term of any lease (including any period for
which such lease has been extended or may, at the option of the lessor, be
extended); the net amount of rent required to be paid for any such period
shall be the total amount of the rent payable by the lessee with respect to
such period, but may exclude amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges; and, in the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so
terminated.
(c) If, upon any consolidation or merger of any Restricted
Subsidiary with or into any other corporation, or upon any consolidation or
merger of any other corporation with or into the Company or any Restricted
Subsidiary or upon any sale or conveyance of the property of any Restricted
Subsidiary as an entirety or substantially as an entirety to any other
Person, or upon any acquisition by the Company or any Restricted Subsidiary
by purchase or otherwise of all or any part of the property of any other
Person, any Important Property theretofore owned by the Company or such
Restricted Subsidiary would thereupon become subject to any mortgage not
permitted by the terms of paragraph (a) or (b) of this Section 1006, the
Company, prior to such consolidation, merger, sale or conveyance, or
acquisition, will, or will cause such Restricted Subsidiary to, secure
payment of the principal of and interest on the Securities (equally and
ratably with or prior to any other indebtedness of the Company or such
Subsidiary then entitled thereto) by a direct lien on all such property
74
prior to all liens other than any liens theretofore existing thereon by
supplemental indenture hereto or otherwise.
(d) If at any time the Company or any Restricted Subsidiary
shall issue, incur, assume or guarantee any Debt secured by any mortgage not
permitted by this Section 1006, to which the covenant in paragraph (a) of
this Section 1006 is applicable, the Company will promptly deliver to the
Trustee
(i) an Officers' Certificate stating that the covenant of the
Company contained in paragraph (a) or (c) of this Section 1006 has been
complied with; and
(ii) an Opinion of Counsel to the effect that such covenant has
been complied with, and that any instruments executed by the Company in
the performance of such covenant comply with the requirements of such
covenant.
In the event that the Company shall hereafter secure the
Securities equally and ratably with or prior to any other obligation or
indebtedness pursuant to the provisions of this Section 1006, the Trustee is
hereby authorized to enter into an indenture or agreement supplemental hereto
and to take such action, if any, as it may deem advisable to enable it to
enforce effectively the rights of the holders of the Securities so secured,
equally and ratably with or prior to such other obligations or indebtedness.
SECTION 1007. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
The Company will not, nor will it permit any Restricted Subsidiary to, enter
into any arrangement with any Person providing for the leasing to the Company
or any Restricted Subsidiary of any Important Property owned or hereafter
acquired by the Company or such Restricted Subsidiary (except for temporary
leases for a term, including any renewal thereof, of not more than three
years and except for leases between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries), which Important Property has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to
such Person (herein referred to as a "Sale and Lease-back Transaction")
unless the net proceeds of such sale are at least equal to the fair value (as
determined by the Board of Directors) of such property and either (a) the
Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions of (1) clause (i) of paragraph (a) of Section 1006 or (2)
paragraph (b) of Section 1006 hereof, to incur Debt secured by a mortgage on
the Important Property to be leased without equally and ratably securing the
Securities, or (b) the Company shall, and in any such case the Company
covenants that it will, within 120 days of the effective date of any such
arrangement, apply an amount equal to the fair value (as so determined) of
such property to the redemption pursuant to Section 1101 hereof or the
purchase and retirement of Securities or to the payment or other retirement
of funded debt for money borrowed, incurred or assumed by the Company which
ranks senior to or pari passu with the Securities or of funded debt for money
borrowed, incurred or assumed by any Restricted Subsidiary (other than, in
either case, funded debt owned by the Company or any Restricted Subsidiary),
or (c) the Company shall, at or prior to
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the time of entering into the Sale and Lease-back Transaction, enter into a
bona fide commitment or commitments to expend for the acquisition or
improvement of an Important Property an amount at least equal to the fair
value (as so determined) of such property. For this purpose, funded debt
means any Debt which by its terms matures at or is extendable or renewable at
the sole option of the obligor without requiring the consent of the obligee
to a date more than twelve months after the date of the creation of such Debt.
SECTION 1008. WAIVER OF CERTAIN COVENANTS. The Company may omit
in any particular instance to comply with any term, provision or condition
set forth in Sections 1006, 1007 and, as specified pursuant to Section
301(15) for Securities of any series, in any covenants of the Company added
to Article Ten pursuant to Section 301(14) or Section 301(15) in connection
with Securities of a series, if before or after the time for such compliance
the Holders of at least a majority in principal amount of all outstanding
Securities, by Act of such Holders, waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in accordance with
this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series issued on the same day with the
same terms are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 60 days
76
prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series issued on such date with the same terms not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall
be given in the manner provided in Section 106, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301, to
each Holder of Securities to be redeemed, but failure to give such notice in
the manner herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption
of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities
in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without a charge, a new Security
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or Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest thereon
shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and
at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not
do in the case of a sinking fund payment under Article Twelve, segregate and
hold in trust as provided in Section 1003) an amount of money in the Currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an
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Interest Payment Date) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall if the same were interest-bearing cease to bear
interest and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and PROVIDED FURTHER that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee
if there be furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; PROVIDED, HOWEVER, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in
such Security or, in the case of Original Issue Discount Security, at the
Yield to Maturity of such Security.
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SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the
Security so surrendered. However, if less than all the Securities of any
series with differing issue dates, interest rates and stated maturities are
to be redeemed, the Company in its sole discretion shall select the
particular Securities to be redeemed and shall notify the Trustee in writing
thereof at least 45 days prior to the relevant redemption date.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein referred
to as an "optional sinking fund payment". If provided for by the terms of
any Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a series,
(1) deliver Outstanding Securities of such series (other than any previously
called for redemption) together in the case of any Bearer Securities of such
series with all unmatured coupons appertaining thereto and (2) apply as a
credit Securities of such series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, as provided for by the terms of such Securities;
PROVIDED that such Securities so delivered or applied as a credit have not
been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified
in such Securities for redemption through
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operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not
less than 60 days prior to each sinking fund payment date for Securities of
any series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable,
as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof,
if any, which is to be satisfied by delivering and crediting Securities of
that series pursuant to Section 1202, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Securities to be so delivered and credited.
If such Officers' Certificate shall specify an optional amount to be added in
cash to the next ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not less than 30
days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities
of any series before their Stated Maturity at the option of Holders thereof
shall be made in accordance with the terms of such Securities and (except as
otherwise specified by the terms of such series established pursuant to
Section 301) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at
the Repayment Price thereof, together with interest, if any, thereon accrued
to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applicable, as provided
in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Repayment Price
of, and (except if
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the Repayment Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof, as the case may be, to be repaid on
such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. To be
repaid at the option of the Holder, any Security so providing for such
repayment, with the "Option to Elect Repayment" form on the reverse of such
Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of
Payment therefor specified in the terms of such Security (or at such other
place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire Repayment Price of such
Security is to be repaid in accordance with the terms of such Security, the
portion of the Repayment Price of such Security to be repaid, in increments
of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to
the Holder for the portion of such Security surrendered that is not to be
repaid, must be specified. Any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be less than
the minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE
AND PAYABLE. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be repaid, except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the Repayment Price of such Security so to be
repaid shall be paid by the Company, together with accrued interest, if any,
to the Repayment Date; PROVIDED, HOWEVER, that coupons whose Stated Maturity
is on or prior to the Repayment Date shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and PROVIDED FURTHER that,
in the case of Registered Securities, installments of interest, if any, whose
Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as
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such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security surrendered for repayment shall not be so repaid
upon surrender thereof, the Repayment Price shall, until paid, bear interest
from the Repayment Date at the rate of interest set forth in such Security
or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal
to and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 301
provision is made for either or both of (a) defeasance of the Securities of
or within a series under Section 1402 or (b) covenant defeasance of the
Securities of or within a series under Section 1403, then the provisions of
such Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time,
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with respect to such Securities and any coupons appertaining thereto, elect
to have Section 1402 (if applicable) or Section 1403 (if applicable) be
applied to such Outstanding Securities and any coupons appertaining thereto
upon compliance with the conditions set forth below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities
and any coupons appertaining thereto on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) of this Section, and to
have satisfied all its other obligations under such Securities and any
coupons appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to receive,
solely from the trust fund described in Section 1404 and as more fully set
forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1004, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option
under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released from its obligations
under Sections 1006 and 1007, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 1006 and 1007, or
such other covenant, but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to such Outstanding Securities and any coupons
appertaining thereto, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth
84
in any such Section or such other covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
501(4) or 501(7) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities and
any coupons appertaining thereto, (1) an amount (in such Currency in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity), or (2) Government Obligations applicable to
such Securities and coupons appertaining thereto (determined on the basis
of the Currency in which such Securities and coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof in an amount, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any) and interest, if any, on such Outstanding Securities
and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Default or Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such
85
deposit or, insofar as Sections 501(5) and 501(6) are concerned, at any
time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other
86
qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of any Outstanding Securities
of any series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and any coupons appertaining thereto and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any coupons appertaining thereto of all sums due and to become
due thereon in respect of principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the
extent required by law.
Unless otherwise specified with respect to any Security pursuant
to Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was made
is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 312(d)
or 312(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 1404(a) has been made, the indebtedness represented by
such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the Currency in which
such Security becomes payable as a result of such election or Conversion
Event based on the applicable Market Exchange Rate for such Currency in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such Currency in effect (as nearly as
feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
87
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. If
Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at
such place in the Borough of Manhattan, The City of New York or in London as
the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
New York or in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities of any series shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
PROVIDED, HOWEVER, that if any action is to be
88
taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given
as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that
series; PROVIDED, HOWEVER, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if
any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of
such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
89
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS. (a) Notwithstanding any provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy shall
be proved in the manner specified in Section 104 or by having the signature
of the Person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding
of Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
90
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the fact, setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
91
* * * * *
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
DEERE & COMPANY
By /S/ NATHAN J. JONES
----------------------
[SEAL] Treasurer
Attest:
/s/ Michael A. Harring
-------------------------
[Assistant Secretary]
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
By /s/ Valerie Dunbar
-----------------------
Second Vice President
[SEAL]
Attest:
/s/ Mary Lewicki
-----------------------------
Assistant Secretary
STATE OF ILLINOIS )
) ss:
COUNTY OF ROCK ISLAND )
On the 8th day of July, 1994, before me personally came Nathan J.
Jones, to me known, who, being by me duly sworn, did depose and say that he
resides at 1805 Harding Court, Bettendorf, Iowa; 52722; that he is Treasurer
of Deere & Company, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
[Notarial Seal]
/s/ Marsha L. Mack
--------------------
Notary Public
COMMISSION EXPIRES
STATE OF NEW YORK )
) ss:
COUNTY OF KINGS )
On the 14th day of July, 1994, before me personally came Valerie
Dunbar, to me known, who, being by me duly sworn, did depose and say that she
resides in Yonkers, New York; that she is a Second Vice President of The
Chase Manhattan Bank (National Association), one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation; and that she signed his name thereto by like authority.
[Notarial Seal]
/s/ Della K. Benjamin
---------------------------
Notary Public
COMMISSION EXPIRES
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities
to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source ("United States person(s)"), (ii) are owned by
United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale, or
(b) United States person(s) who acquired the Securities through foreign
branches of United States financial institutions and who hold the Securities
through such United States financial institutions on the date hereof (and in
either case (a) or (b), each such United States financial institution hereby
agrees, on its own behalf or through its agent, that you may advise Deere &
Company or its agent that such financial institution will comply with the
requirements of Section 165(j)(3)(A), (B) or (C) of the United States
Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) are owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in addition, if
the owner is a United States or foreign financial institution described in
clause (iii) above (whether or not also described in clause (i) or (ii)),
this is to further certify that such financial institution has not acquired
the Securities for purposes of resale directly or indirectly to a United
States person or to a person within the United States or its possessions.
A-1-2
As used herein, "UNITED STATES" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed
that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] _________
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest
in a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated: , 19
______________ ____
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
_______________________
(Authorized Signatory)
Name:
Title:
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities
to be delivered]
This is to certify that, based solely on written certifications
that we have received in writing, by tested telex or by electronic
transmission from each of the persons appearing in our records as persons
entitled to a portion of the principal amount set forth below (our "Member
Organizations") substantially in the form attached hereto, as of the date
hereof, [U.S.$]________________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of
the United States, domestic partnerships, domestic corporations or any estate
or trust the income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a) or (b), each such financial institution has agreed, on its own behalf or
through its agent, that we may advise Deere & Company or its agent that such
financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also described
in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
A-2-2
We further certify that (i) we are not making available herewith
for exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification from any of
our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated: , 19
_______________ ____
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,]
as Operator of the Euroclear System
[Cedel S.A.]
By __________________________