SECURITIES AND EXCHANGE COMMISSION
Washington, D. C. 20549
___________________
FORM 10-Q
___________________
Quarterly Report Pursuant to Section 13 or 15(d)
of the
Securities Exchange Act of 1934
For the quarterly period ended July 31, 1995
Commission file no: 1-6458
______________________________
JOHN DEERE CAPITAL CORPORATION
Delaware 36-2386361
(State of incorporation) (IRS employer
identification no.)
Suite 600
First Interstate Bank Building
1 East First Street
Reno, Nevada 89501
(Address of principal executive offices)
Telephone Number: (702) 786-5527
______________________________
Indicate by check mark whether the registrant (1) has filed
all reports required to
be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the
preceding 12 months (or for such shorter period that the
registrant was required to file
such reports), and (2) has been subject to such filing
requirements for the past 90 days.
Yes x No
At July 31, 1995, 2,500 shares of common stock, without par
value, of the
registrant were outstanding, all of which were owned by John
Deere Credit Company, a
wholly-owned subsidiary of Deere & Company.
The registrant meets the conditions set forth in General
Instruction H(1)(a) and (b)
of Form 10-Q and is therefore filing this Form with certain
reduced disclosures as
permitted by those instructions.
Page 1 of 216 Pages.
Index to Exhibits: Page 15.
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements.
JOHN DEERE CAPITAL CORPORATION AND SUBSIDIARIES
Condensed Statement of Consolidated Income
(UNAUDITED)
(In millions of dollars)
Three Months Ended
July 31
1995 1994
Revenues:
Finance income earned on retail notes $ 78.6 $ 75.8
Revolving charge account income 22.2 18.1
Lease revenues 12.2 11.1
Finance income earned on wholesale notes 6.5 2.7
Net gain on retail notes sold .3 (.4)
Interest income from short-term investments 3.1 1.4
Securitization and servicing fee income 8.6 5.6
Other income 1.1 1.0
Total revenues 132.6 115.3
Expenses:
Interest expense 57.8 43.7
Administrative and operating expenses 18.3 17.9
Provision for credit losses 9.4 7.3
Fees paid to Deere & Company 1.0 1.6
Depreciation of equipment on
operating leases 5.6 5.2
Total expenses 92.1 75.7
Income before Income Taxes 40.5 39.6
Provision for Income Taxes 14.2 13.8
Net Income $ 26.3 $ 25.8
______________
See Notes to Interim Financial Statements
<PAGE>
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements.
JOHN DEERE CAPITAL CORPORATION AND SUBSIDIARIES
Condensed Statement of Consolidated Income
(UNAUDITED)
(In millions of dollars)
Nine Months Ended
July 31
1995 1994
Revenues:
Finance income earned on retail notes $245.2 $210.4
Revolving charge account income 59.1 45.7
Lease revenues 35.4 32.0
Finance income earned on wholesale notes 16.0 8.1
Net gain on retail notes sold 11.1 1.7
Interest income from short-term investments 8.4 4.2
Securitization and servicing fee income 25.1 22.3
Other income 2.7 2.8
Total revenues 403.0 327.2
Expenses:
Interest expense 173.5 116.0
Administrative and operating expenses 55.1 57.3
Provision for credit losses 20.9 18.8
Fees paid to Deere & Company 3.6 4.7
Depreciation of equipment on
operating leases 16.0 15.6
Total expenses 269.1 212.4
Income before Income Taxes 133.9 114.8
Provision for Income Taxes 46.9 40.1
Net Income $ 87.0 $ 74.7
______________
See Notes to Interim Financial Statements
<PAGE>
JOHN DEERE CAPITAL CORPORATION AND SUBSIDIARIES
Condensed Consolidated Balance Sheet
(UNAUDITED)
(In millions of dollars)
Jul 31 Oct 31 Jul 31
1995 1994 1994
ASSETS
Cash and Cash Equivalents $ 153.5 $ 42.9 $ 164.0
Receivables and Leases:
Retail notes 3,411.0 3,289.2 3,468.0
Revolving charge accounts 482.9 437.3 401.0
Financing leases 143.9 117.7 103.0
Wholesale notes 251.1 142.2 112.7
Total receivables 4,288.9 3,986.4 4,084.7
Equipment on operating leases 132.1 125.2 128.5
Total receivables and leases 4,421.0 4,111.6 4,213.2
Allowance for credit losses (79.5) (80.1) (79.2)
Total receivables and
leases - net 4,341.5 4,031.5 4,134.0
Other Receivables 178.7 155.1 133.0
Other Assets 64.4 60.1 54.0
TOTAL $4,738.1 $4,289.6 $4,485.0
LIABILITIES AND STOCKHOLDER'S EQUITY
Short-Term Borrowings:
Commercial paper $2,041.2 $1,580.7 $1,919.8
Deere & Company 100.2 102.7 189.4
Current maturities of long-term
borrowings 225.5 632.8 555.1
Total short-term borrowings 2,366.9 2,316.2 2,664.3
Accounts Payable and Accrued
Liabilities 136.6 180.2 129.8
Deposits Withheld from Dealers and
Merchants 120.1 111.4 106.3
Long-Term Borrowings:
Notes and debentures 1,113.8 734.5 645.3
Subordinated debt 300.0 300.0 300.0
Total long-term borrowings 1,413.8 1,034.5 945.3
Retirement Benefit Accruals &
Other Liabilities 14.7 13.3 15.5
Stockholder's Equity:
Common stock, without par value
(authorized, issued and
outstanding - 2,500 shares owned
by John Deere Credit Company) 112.8 112.8 112.8
Retained earnings 573.2 521.2 511.0
Total stockholder's equity 686.0 634.0 623.8
TOTAL $4,738.1 $4,289.6 $4,485.0
See Notes to Interim Financial Statements
<PAGE>
JOHN DEERE CAPITAL CORPORATION AND SUBSIDIARIES
Condensed Statement of Consolidated Cash Flows
(UNAUDITED)
(In millions of dollars)
Nine Months Ended
July 31
1995 1994
Cash Flows from Operating Activities:
Net income $ 87.0 $ 74.7
Adjustments to reconcile net income
to net cash provided by
operating activities 24.8 45.4
Net cash provided by operating
activities 111.8 120.1
Cash Flows from Investing Activities:
Cost of receivables and leases
acquired (3,290.8) (2,798.6)
Collections of receivables 2,181.2 1,957.2
Proceeds from sales of
receivables 726.3 61.4
Other (12.6) 16.5
Net cash provided by (used for)
investing activities (395.9) (763.5)
Cash Flows from Financing Activities:
Increase in notes
payable to others 460.4) 1,465.7
Change in receivable/payable with
Deere & Company (2.4) (250.1)
Proceeds from the issuance of
long-term borrowings 515.0 10.0
Principal payment on long-term
borrowings (543.3) (393.4)
Dividends paid (35.0) (190.0)
Net cash provided by (used for)
financing activities 394.7 642.2
Net increase (decrease) in cash and
cash equivalents 110.6 (1.2)
Cash and cash equivalents at beginning
of period 42.9 165.2
Cash and cash equivalents at end
of period $ 153.5 $ 164.0
_______________
See Notes to Interim Financial Statements<PAGE>
Notes to Interim Financial Statements
(1) The consolidated financial statements of John Deere Capital
Corporation (Capital Corporation) and its wholly-owned
subsidiaries, Deere Credit, Inc. (DCI), Deere Credit
Services,
Inc. (DCS), Farm Plan Corporation (FPC) and John Deere
Receivables, Inc. (JDRI), (collectively referred to as the
Company) have been prepared by the Company, without audit,
pursuant to the rules and regulations of the Securities and
Exchange Commission. Certain information and footnote
disclosures normally included in annual financial statements
prepared in accordance with generally accepted accounting
principles have been condensed or omitted as permitted by
such
rules and regulations. All adjustments, consisting of
normal
recurring adjustments, have been included. Management
believes that the disclosures are adequate to present fairly
the financial position, results of operations and cash flows
at the dates and for the periods presented. It is suggested
that these interim financial statements be read in
conjunction
with the financial statements and the notes thereto included
in the Company s latest annual report on Form 10-K. Results
for interim periods are not necessarily indicative of those
to
be expected for the fiscal year.
(2) The principal business of the Company is providing and
administering financing for retail purchases of new and used
John Deere agricultural, industrial and lawn and grounds care
equipment. The Company purchases retail installment sales and
loan contracts (retail notes) from Deere & Company and its
wholly-owned subsidiaries (collectively called John Deere).
These retail notes are acquired by John Deere through John
Deere retail dealers in the United States. The Company also
purchases and finances retail notes unrelated to John Deere,
representing primarily recreational vehicle and recreational
marine product notes acquired from independent dealers of
those products and from marine product mortgage service
companies (recreational product retail notes). The Company
also leases John Deere equipment to retail customers, finances
and services unsecured revolving charge accounts acquired from
and offered through merchants in the agricultural, lawn and
grounds care and marine retail markets (revolving charge
accounts), and provides financing for wholesale inventories of
recreational vehicles, manufactured housing units, yachts and
John Deere engines owned by dealers of those products
(wholesale notes). Retail notes, revolving charge accounts,
financing leases and wholesale notes receivable are
collectively called Receivables. Receivables and operating
leases are collectively called Receivables and Leases.
(3) The consolidated ratio of earnings to fixed charges was
1.76
to 1 during the first nine months of this year compared with
1.97 to 1 in the comparable period of 1994 and was 1.69 to 1
for the third quarter of 1995 compared with 1.89 to 1 in the
same period last year. Earnings consist of income before
income taxes and changes in accounting to which are added
fixed charges. Fixed charges consist of interest on
indebtedness, amortization of debt discount and expense, an
estimated amount of rental expense under capitalized leases
which is deemed to be representative of the interest factor
and rental expense under operating leases.
(4) The Company is subject to various unresolved legal actions
which arise in the normal course of its business, the most
prevalent of which relate to state and federal regulations
concerning retail credit. Although it is not possible to
predict with certainty the outcome of these unresolved legal
actions or the range of possible loss, the Company believes
these unresolved legal actions will not have a material effect
on its financial position or results of operations.
Item 2. Management s Discussion and Analysis of Financial
Condition and Results of Operations.
Results of Operations
Retail notes acquired by the Company during the first nine months
of 1995 totaled $2.036 billion, an increase of 14 percent,
compared
with acquisitions of $1.780 billion during the same period last
year. Retail note acquisitions from John Deere increased by $239
million, or 15 percent, for the nine months ended July 31, 1995
compared with the same period last year primarily due to higher
retail sales of John Deere equipment and an improvement in the
Company s market share for the financing of John Deere
agricultural
equipment. Acquisitions of recreational product retail notes
were
$17 million higher in the first nine months of 1995 as compared
to
the first nine months of 1994. The primary reason for this
increase was a higher level of recreational vehicle note
acquisitions compared with the same period last year.
During the third quarter of 1995, total retail note acquisitions
increased 13 percent to $621 million compared with $550 million
in
the same quarter of 1994. Retail note acquisitions from John
Deere
increased by $62 million in the third quarter of 1995 compared to
the third quarter last year. Acquisitions of recreational
product
retail notes increased by $9 million in the third quarter of 1995
as compared to the same period in 1994.
At July 31, 1995, the amount of retail notes held by the Company
was $3.411 billion compared with $3.289 billion at October 31,
1994
and $3.468 billion at July 31, 1994. Within this category,
recreational product notes totaled $863 million, $800 million and
$802 million, respectively. Retail notes increased during the
first nine months of 1995 due to the cost of retail notes
acquired
exceeding collections by $884 million, which was partially offset
by the securitization and sale of retail notes for proceeds of
$726
million.
The amount of retail notes administered by the Company, which
includes retail notes previously sold, totaled $4.713 billion at
July 31, 1995, $4.464 billion at October 31, 1994, and $4.241
billion at July 31, 1994. At July 31, 1995, the unpaid balance
of
retail notes previously sold was $1.302 billion compared with
$1.175 billion at October 31, 1994 and $773 million at July 31,
1994. The Company s maximum exposure under all retail note
recourse provisions at July 31, 1995 was $175 million.
Revolving charge accounts receivable totaled $483 million at July
31, 1995 compared with $437 million at October 31, 1994 and $401
million at July 31, 1994. Acquisitions increased ten percent in
the third quarter of 1995 and 11 percent in the first nine months
of 1995 compared with the same periods last year, reflecting the
increased retail sales of John Deere lawn and grounds care
equipment, as well as an increased volume of Farm Plan receivable
acquisitions. The balance of revolving charge accounts receivable
increased in the first nine months of 1995 due to the growth in
both Farm Plan and John Deere Credit Revolving Plan volumes.
Farm
Plan and John Deere Credit Revolving Plan receivables at July 31,
1995 were $245 million and $238 million, respectively, compared
to
$201 million and $200 million, respectively, a year ago.
The portfolio of financing leases totaled $144 million at July
31,
1995 compared with $118 million at October 31, 1994 and $103
million at July 31, 1994. The investment in operating leases was
$132 million, $125 million and $129 million at those dates,
respectively. The Company also administers municipal leases
owned
by Deere & Company which totaled $25 million at July 31, 1995,
$39
million at October 31, 1994 and $40 million at July 31, 1994.
The
Company sold $15 million of municipal leases to Deere & Company
in
the first nine months of 1994. During the first nine months of
1995, the Company did not sell municipal leases to Deere &
Company.
Wholesale notes receivable on recreational vehicle, manufactured
housing, yacht and John Deere engine inventories totaled $251
million at July 31, 1995, $142 million at October 31, 1994 and
$113
million at July 31, 1994. Wholesale note acquisitions continue
to
be favorably impacted by the Company s growth in both the
manufactured housing and yacht markets.
Receivables and Leases acquired totaled $3.291 billion during the
first nine months of 1995, an 18 percent increase compared with
acquisitions of $2.799 billion during the same period of 1994.
Receivables and Leases financed by the Company were $4.421
billion
at July 31, 1995, $4.112 billion at October 31, 1994 and $4.213
billion at July 31, 1994. Total Receivables and Leases
administered by the Company on those same dates were $5.748
billion, $5.326 billion and $5.027 billion, respectively.
The balance (principal plus accrued interest) of retail notes
held
with any installment 60 days or more past due was $31 million at
July 31, 1995 compared with $24 million at October 31, 1994 and
$23
million at July 31, 1994. The amount of retail note installments
60 days or more past due was $6.2 million at July 31, 1995, $5.5
million at October 31, 1994 and $6.0 million at July 31, 1994.
These past-due installments represented .18 percent of the unpaid
balance of retail notes held at July 31, 1995, and .17 percent at
both July 31, 1994 and October 31, 1994.
The balance of revolving charge accounts past due 60 days or more
was $5.6 million at both July 31, 1995 and October 31, 1994, and
$4.9 million at July 31, 1994. These past-due amounts
represented
1.14 percent, 1.28 percent and 1.22 percent of the revolving
charge
accounts receivable held at those respective dates.
The balance of financing and operating lease payments 60 days or
more past due was $1.1 million at July 31, 1995, and $.6 million
at
both October 31, 1994 and July 31, 1994. These past-due
installments represented .42 percent, .24 percent and .26 percent
of the investment in financing and operating leases at those
respective dates.
Receivable and Lease amounts 60 days or more past due were $13.1
million at July 31, 1995, $11.7 million at October 31, 1994 and
$11.6 million at July 31,1994. These past-due amounts represent
.30 percent at July 31, 1995, and .28 percent at both October 31,
1994 and July 31, 1994 of the total Receivables and Leases held
at
those dates.
Deposits withheld from dealers and merchants, representing mainly
the aggregate dealer retail note and lease withholding accounts
from individual John Deere dealers to which losses from retail
notes and leases originating from the respective dealers can be
charged, amounted to $120 million at July 31, 1995 compared with
$111 million at October 31, 1994 and $106 million at July 31,
1994.
The Company s allowance for credit losses on all Receivables and
Leases financed totaled $80 million at both July 31, 1995 and
October 31, 1994, and $79 million at July 31, 1994. This
allowance
for credit losses represented 1.8 percent of the unpaid balance
of
Receivables and Leases financed at July 31, 1995 and 1.9 percent
at
both October 31, 1994 and July 31, 1994.
Net income was $26.3 million for the third quarter of 1995 and
$87.0 million for the first nine months of 1995 compared with
$25.8
million and $74.7 million, respectively, in the same periods
last
year. Net income for both the third quarter and the first nine
months continued to reflect higher earnings from a larger average
portfolio, offset by lower financing margins. In addition, year
to
date operations benefited from higher gains from note sales in
1995
compared with the same period a year ago. The average balance of
Receivables and Leases financed was three percent higher in the
third quarter and 13 percent higher in the first nine months of
1995 compared with the same periods last year.
Revenues totaled $132.6 million for the third quarter and $403.0
million for the first nine months of 1995 compared to $115.3
million and $327.2 million for the same periods a year ago.
Revenues increased due to a higher overall yield on the
receivables
held, a larger average portfolio financed and increased gains on
the sale of retail notes. The ratio of earnings to fixed charges
was 1.76 to 1 for the first nine months of 1995 compared with
1.97
to 1 in the same period of 1994 and was 1.69 to 1 for the third
quarter of 1995 compared with 1.89 to 1 in the same period last
year.
Revolving charge account income and lease revenues were higher in
the first nine months of 1995 and for the third quarter compared
with the same periods in 1994, due primarily to the higher
average
revolving charge and lease portfolios financed this year. Finance
income earned on wholesale notes was up $3.8 million in the third
quarter and $7.9 million during the first nine months of 1995
compared to the same periods one year ago.
Interest expense for the third quarter was up from $43.7 million
last year to $57.8 million in 1995. Interest expense for the
first
nine months of 1995 was $173.5 million compared with $116.0
million
during the first nine months of 1994. The increases in interest
expense during the third quarter and the first nine months of
1995
were the result of increased borrowings required to finance the
higher average Receivable and Lease portfolios and increased
interest rates. Total average borrowings during the third
quarter
and the first nine months of 1995 were $3.614 billion and $3.606
billion, respectively, a five percent increase from last year s
third quarter average borrowings of $3.449 billion and a 15
percent
increase compared to the average borrowings of $3.128 billion
during the first nine months of 1994. The weighted average
interest rate incurred on all interest-bearing borrowings for the
third quarter and the first nine months of this year was 6.5
percent and 6.3 percent, respectively, compared to 5.0 percent
and
4.8 percent, respectively, during the same periods last year.
Administrative and operating expenses increased by two percent
during the third quarter yet decreased four percent in the first
nine months of 1995 in comparison to the same periods last year.
The current quarter expenses were affected by increased
advertising
costs. The year-to-date decline was primarily related to reduced
legal expenses compared to last year.
The provision for credit losses totaled $9.4 million and $20.9
million for the third quarter and for the first nine months of
1995, respectively, compared to $7.3 million and $18.8 million
for
the same periods in 1994, primarily reflecting growth in the
portfolio. The increases in the provision were partially offset
by
a favorable adjustment of $2.4 million during the third quarter
of
1995 related to current and expected losses on revolving charge
receivables and a favorable adjustment of $6.7 million during the
first nine months of 1995 related to current and expected losses
on
both revolving charge and industrial equipment retail notes.
Write-offs of Receivables and Leases financed were $4.3 million
during the third quarter of 1995 compared with $3.1 million last
year and were $16.9 million during the first nine months of 1995
compared with $17.1 million last year. Write-offs of John Deere
retail notes totaled $.5 million during the third quarter of 1995
compared to a negligible amount during the third quarter of 1994,
and totaled $2.4 million during the first nine months of 1995
compared with $2.0 million during the first nine months of 1994.
Write-offs of recreational product retail notes totaled $8.5
million in the first nine months of 1995 compared with $10.7
million for the same period last year.
Capital Resources and Liquidity
The Company relies on its ability to raise substantial amounts of
funds to finance its Receivable and Lease portfolios. The
Company s primary sources of funds for this purpose are a
combination of borrowings and equity capital. Additionally, the
Company periodically sells substantial amounts of retail notes in
the public market. The Company s ability to obtain funds is
affected by its debt ratings, which are closely related to the
outlook for and the financial condition of Deere & Company, and
the
nature and availability of support facilities, such as its lines
of
credit. For information regarding Deere & Company and its
business, see Exhibit 99.
The Company s ability to meet its debt obligations is supported
in
a number of ways as described below. All commercial paper issued
is backed by bank credit lines. The assets of the Company are
self-liquidating in nature. A strong equity position is
available
to absorb unusual losses on these assets. Liquidity is also
provided by the Company s ability to sell or securitize these
assets. Asset-liability risk is also actively managed to
minimize
exposure to interest rate fluctuations.
The Company s business is somewhat seasonal, with overall
acquisitions of Receivables and Leases traditionally higher in
the
second half of the fiscal year than in the first half, and
overall
collections of Receivables and Leases traditionally somewhat
higher
in the first six months than in the last half of the fiscal year.
During the first nine months of 1995, the aggregate cash provided
by operating and financing activities was used primarily to
increase credit receivables and cash and cash equivalents. Cash
provided by operating activities was $112 million in the first
nine
months of 1995. Financing activities provided $395 million
during
the same period, resulting from a $432 million increase in
outside
borrowings which was partially offset by dividend payments
totaling
$35 million and a $2 million decrease in payables to Deere &
Company. Cash used for investing activities totaled $396 million
in the first nine months of 1995, primarily due to acquisitions
of
Receivables and Leases exceeding collections by $1.110 billion
which was partially offset by the $726 million of proceeds from
the
sale of retail notes. Cash and cash equivalents increased $111
million during the first nine months of 1995.
During the first nine months of 1994, the aggregate cash provided
by operating and financing activities was used primarily to
acquire
Receivables and Leases. Cash provided by the Company s operating
activities was $120 million during the first nine months of 1994.
Financing activities provided $642 million during the same
period,
resulting from a $1.082 billion increase in outside borrowings
which was partially offset by a $250 million decrease in payables
to Deere & Company and dividend payments totaling $190 million.
Cash used for investing activities totaled $764 million in the
first nine months of 1994, primarily due to the cost of
Receivables
and Leases acquired exceeding collections. Other cash flows from
investing activities increased in the first nine months of 1994
mainly due to cash collections on receivables previously sold
that
were being held for payment to the trusts. Cash and cash
equivalents decreased $1 million in the first nine months of
1994.
Total interest-bearing indebtedness amounted to $3.781 billion at
July 31, 1995 compared with $3.350 billion at October 31, 1994
and
$3.610 billion at July 31, 1994, generally corresponding with the
level of Receivables and Leases financed and the level of cash
and
cash equivalents. The ratio of total interest-bearing debt to
stockholder s equity was 5.5 to 1, 5.3 to 1 and 5.8 to 1 at
July
31, 1995, October 31, 1994 and July 31, 1994, respectively.
During the first nine months of 1995, the Company issued $150
million in floating rate notes due in 1998 and retired $150
million
of 5% debentures, $150 million of 11-5/8% debentures and $100
million of 6% debentures, all due in 1995. During the first nine
months of this year, the Company issued $365 million and retired
$143 million of medium-term notes.
At July 31, 1995, the Capital Corporation, Deere & Company, John
Deere Limited (Canada) and John Deere Finance Limited (Canada),
jointly, maintained $4.008 billion of unsecured lines of credit
with various banks in North America and overseas, $1.080 billion
of
which were unused. For the purpose of computing unused credit
lines, the total short-term borrowings, excluding the current
portion of long-term borrowings, of the Capital Corporation,
Deere
& Company, John Deere Limited (Canada) and John Deere Finance
Limited (Canada) were considered to constitute utilization.
Included in the total credit lines is a long-term credit
agreement
commitment for $3.500 billion. An annual facility fee on the
credit agreement is charged to the Capital Corporation based on
utilization.
On September 1, 1995 the Company declared a dividend of $20
million
to John Deere Credit Company, which, in turn, declared a dividend
of $20 million to Deere & Company, each payable on September 12,
1995.
<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings.
See Note (4) to the Interim Financial Statements.
Item 2. Changes in Securities.
Omitted pursuant to instruction H(2).
Item 3. Defaults upon Senior Securities.
Omitted pursuant to instruction H(2).
Item 4. Submission of Matters to a Vote of Security Holders.
Omitted pursuant to instruction H(2).
Item 5. Other Information.
None.
Item 6. Exhibits and Reports on Form 8-K.
(a) Exhibits.
See the index to exhibits immediately preceding
the
exhibits filed with this report.
Certain instruments relating to long-term debt,
constituting less than 10% of the registrant s
total assets, are not filed as exhibits herewith
pursuant to Item 601(b)(4)(iii)(A) of Regulation
S-
K. The registrant will file copies of such
instruments upon request of the Commission.
(b) Reports on Form 8-K.
Current report on Form 8-K dated May 23, 1995
(items 5 and 7).
Current report on Form 8-K dated July 13, 1995
(item 7).
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned thereunto duly authorized.
JOHN DEERE CAPITAL CORPORATION
Date: 11 September 1995 By: /s/ Pierre E. Leroy
Pierre E. Leroy
Vice President and
(Principal Financial Officer)
<PAGE>
INDEX TO EXHIBITS
Exhibit Page No.
(4.1) Senior Indenture between the registrant
and the Chase Manhattan Bank (National
Association). 16
(4.2) Subordinated Indenture between the registrant
and The First National Bank of Chicago. 114
(12) Computation of ratio of earnings to fixed
charges. 215
(27) Financial data schedule. 216
(99) Part I of Deere & Company Form 10-Q for
the quarter ended July 31, 1995
(Securities and Exchange Commission file
number 1-4121).*
__________________________
*Incorporated by reference. Copies of these exhibits are
available
from the Company upon request.
EXHIBIT 4.1
John Deere Capital Corporation
To
The Chase Manhattan Bank
(National Association),
Trustee
Indenture
Dated as of June 15, 1995
Providing for the Issuance
of
Senior Debt Securities
<PAGE>
JOHN DEERE CAPITAL CORPORATION
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of June 15, 1995
Trust Indenture Indenture
Act Section Section
Section 310 (a)(1) 607
(a)(2) 607
(b) 608
Section 312 (c) 701
Section 314 (a) 703
(a)(4) 1005
(c)(1) 102
(c)(2) 102
(e) 102
Section 315 (b) 601
Section 316 (a) (last sentence) 101
("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
Section 317 (a)(1) 503
(a)(2) 504
Section 318 (a) 111
(c) 111
NOTE: This reconciliation and tie shall not, for any
purpose, be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions . . . . . . . . . . . . . . . 1
SECTION 102. Compliance Certificates and Opinions. . . 11
SECTION 103. Form of Documents Delivered to Trustee.. . 11
SECTION 104. Acts of Holders . . . . . . . . . . . .. . 12
SECTION 105. Notices, Etc., to Trustee and Company .. . 13
SECTION 106. Notice to Holders; Waiver . . . . . . .. . 14
SECTION 107. Effect of Headings and Table of Contents . 15
SECTION 108. Successors and Assigns. . . . . . . . . . 15
SECTION 109. Separability Clause . . . . . . . . . . . 15
SECTION 110. Benefits of Indenture . . . . . . . . . . 15
SECTION 111. Governing Law . . . . . . . . . . . . . . 15
SECTION 112. Legal Holidays. . . . . . . . . . . . . . 15
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . 16
SECTION 202. Form of Trustee's Certificate of
Authentication . . . 16
SECTION 203. Securities Issuable in Global Form. . . . 17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . 18
SECTION 302. Denominations . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and
Dating. . . . 22
SECTION 304. Temporary Securities. . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer and
Exchange . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. . . 30
SECTION 307. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset . . . 31
SECTION 308. Optional Extension of Maturity. . . . . . 34
SECTION 309. Persons Deemed Owners . . . . . . . . . . 35
SECTION 310. Cancellation. . . . . . . . . . . . . . . 36
SECTION 311. Computation of Interest . . . . . . . . . 36
SECTION 312. Currency and Manner of Payments in Respect of
Securities 37
SECTION 313. Appointment and Resignation of Successor
Exchange Rate Agent. . . . . . . . . . . 40
SECTION 314. CUSIP Numbers . . . . . . . . . . . . . . 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . 41
SECTION 402. Application of Trust Funds. . . . . . . . 43
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . 43
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . 45
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . . 46
SECTION 504. Trustee May File Proofs of Claim. . . . . 46
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons . . . . . . . . 47
SECTION 506. Application of Money Collected. . . . . . 47
SECTION 507. Limitation on Suits . . . . . . . . . . . 48
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . 49
SECTION 509. Restoration of Rights and Remedies. . . . 49
SECTION 510. Rights and Remedies Cumulative. . . . . . 49
SECTION 511. Delay or Omission Not Waiver. . . . . . . 49
SECTION 512. Control by Holders of Securities. . . . . 49
SECTION 513. Waiver of Past Defaults . . . . . . . . . 50
SECTION 514. Waiver of Stay or Extension Laws. . . . . 50
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. . . . . . . . . . . . 51
SECTION 602. Certain Rights of Trustee . . . . . . . . 51
SECTION 603. Not Responsible for Recitals or Issuance of
Securities 52
SECTION 604. May Hold Securities . . . . . . . . . . 53
SECTION 605. Money Held in Trust . . . . . . . . 53
SECTION 606. Compensation and Reimbursement. . . . . 53
SECTION 607. Corporate Trustee Required; Eligibility . 53
SECTION 608. Resignation and Removal; Appointment of
Successor . . 54
SECTION 609. Acceptance of Appointment by Successor. . 55
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business 56
SECTION 611. Appointment of Authenticating Agent . . . 57
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders. . . . . 58
SECTION 702. Reports by Trustee. . . . . . . . . . . 59
SECTION 703. Reports by Company. . . . . . . . . . . 59
SECTION 704. Calculation of Original Issue Discount. . 59
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms. 60
SECTION 802. Successor Person Substituted. . . . . . . 60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders. . 61
SECTION 902. Supplemental Indentures with Consent of
Holders . . . 62
SECTION 903. Execution of Supplemental Indentures. . . 64
SECTION 904. Effect of Supplemental Indentures . . . . 64
SECTION 905. Conformity with Trust Indenture Act . . . 64
SECTION 906. Reference in Securities to Supplemental
Indentures. . 64
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and
Interest. 64
SECTION 1002. Maintenance of Office or Agency. . . . . 65
SECTION 1003. Money for Securities Payments to Be Held in
Trust. . 67
SECTION 1004. Additional Amounts . . . . . . . . . . . 68
SECTION 1005. Statement as to Compliance . . . . . . . 69
SECTION 1006. Limitations on Liens . . . . . . . . . . 69
SECTION 1007. Waiver of Certain Covenants. . . . . . . 70
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . 70
SECTION 1102. Election to Redeem; Notice to Trustee. . 71
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed. . 71
SECTION 1104. Notice of Redemption . . . . . . . . . . 71
SECTION 1105. Deposit of Redemption Price. . . . . . . 73
SECTION 1106. Securities Payable on Redemption Date. . 73
SECTION 1107. Securities Redeemed in Part. . . . . . . 74
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . 74
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities 75
SECTION 1203. Redemption of Securities for Sinking
Fund. . . . . . 75
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . 76
SECTION 1302. Repayment of Securities. . . . . . . . . 76
SECTION 1303. Exercise of Option . . . . . . . . . . . 76
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable. . . . . . . . 77
SECTION 1305. Securities Repaid in Part. . . . . . . . 77
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article;
Company's Option to Effect
Defeasance or Covenant Defeasance. . . 78
SECTION 1402. Defeasance and Discharge . . . . . . . . 78
SECTION 1403. Covenant Defeasance. . . . . . . . . . . 79
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance. . . 79
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions. . . . 81
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called. . . . . . 82
SECTION 1502. Call, Notice and Place of Meetings . . .82
SECTION 1503. Persons Entitled to Vote at Meetings . ..83
SECTION 1504. Quorum; Action . . . . . . . . . . . . .83
SECTION 1505. Determination of Voting Rights; Conduct
and Adjournment of Meetings. . . . . . 84
SECTION 1506. Counting Votes and Recording Action
of Meetings. . . 85
EXHIBIT A
EXHIBIT A-1
EXHIBIT A-2
<PAGE>
INDENTURE, dated as of June 15, 1995, between
JOHN
DEERE CAPITAL CORPORATION, a Delaware corporation (hereinafter
called the
"Company"), having its principal office at 1 East First Street,
Reno, Nevada 89501, 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 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.
"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 Cedel Bank 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.
"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.
"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 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 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
(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.
"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.
"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 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 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 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
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 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 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:
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
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 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, 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 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
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 1007) 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;
(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 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
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.
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 or an
Authenticating Agent 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
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 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 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.
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
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 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.
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.
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 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 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 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 a higher interest rate (or a spread or spread
multiplier providing for a higher
interest rate, if applicable) 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 spread or spread multiplier providing for a higher interest
rate, 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 spread or spread multiplier providing for a higher interest
rate, if applicable).
The Holder of any such Security may 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
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 (or spread, spread multiplier or other formula to
calculate such interest rate, if
applicable), 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 (or
spread, spread multiplier or other formula to calculate such
interest rate, if applicable)
provided for in the Extension Notice and establish a higher
interest rate (or spread, spread
multiplier or other formula to calculate such higher interest
rate, if applicable) for the
Extension Period by causing the Trustee to transmit, in the
manner provided for in
Section 106, notice of such higher interest rate (or spread,
spread multiplier or other formula
to calculate such interest rate, if applicable) 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
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.
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 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.
(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.
"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 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 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;
(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
(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.
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.
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:
(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:
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.
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
(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.
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 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 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
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 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 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
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
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, 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
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;
(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 (1) through (10) of
Section 1006 or paragraph (b)
of Section 1006, compliance shall be effected with the first
clause of Section 1006;
and
(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 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 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, subject to the
provisions of Section 309; or reduce the principal amount
thereof or the rate of
interest (or change the manner of calculating 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 1007, 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.
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 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, if any,
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, and 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 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 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
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 (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
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
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
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. Limitations on Liens. Except as
hereinbelow in this
Section provided, the Company will not, and will not permit any
Subsidiary to, at any time
pledge or otherwise subject to any lien any of its property or
assets, or any of the property
or assets of a Subsidiary, without thereby expressly securing the
due and punctual payment
of the principal of and the interest on the Securities equally
and ratably with any and all
other obligations and indebtedness secured by such pledge or
other lien, so long as any such
other obligations and indebtedness shall be so secured, and the
Company covenants that if
and when any such pledge or other lien is created, the Securities
will be so secured thereby;
provided, however, that this restriction shall not apply to:
1. the giving of any lien or charge on fixed assets
or other physical
properties hereafter acquired to secure all or part of the
purchase price thereof or the
acquiring hereafter of such assets or properties subject to
any existing lien or charge
securing indebtedness (whether or not assumed);
2. easements, liens, franchises or other minor
encumbrances on or over
any real property which do not materially detract from the
value of such property or
its use in the business of the Company or a Subsidiary;
3. any deposit or pledge of assets (i) 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
Subsidiary, or in
connection with other proceedings or actions at law or in
equity by or against the
Company or a Subsidiary, or (ii) 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 (iii) with any
governmental agency, which deposit or pledge is required or
permitted to qualify the
Company or a Subsidiary to conduct business, to maintain
self-insurance, or to obtain
the benefits of any law pertaining to workmen's
compensation, unemployment
insurance, old age pensions, social security, or similar
matters, or (iv) 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;
4. mortgages and pledges, liens or charges by a
Subsidiary as security for
indebtedness owed to the Company;
5. liens for taxes and governmental charges not yet
due or contested by
appropriate proceeding in good faith;
6. mortgages, pledges, liens or charges existing on
property acquired by
the Company or a Subsidiary through the exercise of rights
arising out of defaults on
receivables acquired in the ordinary course of business;
7. judgment liens, so long as the finality of such
judgment is being
contested in good faith and execution thereon is stayed;
8. any claim favor of the Trustee or any predecessor,
pursuant to Section
607;
9. any pledge or lien (other than directly or
indirectly to secure borrowed
money) if, after giving effect thereto, the aggregate
principal sums secured by pledges
or liens otherwise within the restrictions in this Section
1006 contained do not exceed
$500,000; and
10. 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.
SECTION 1007. Waiver of Certain Covenants. The
Company may omit in
any particular instance to comply with any term, provision or
condition set forth in
Section 1006, 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 the 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
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
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 (unless
otherwise specified pursuant to
Section 301) 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 prior to
(or, if specified pursuant to Section 301, on) 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.
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 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 (unless otherwise specified pursuant to Section 301) 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 installments
of interest on Registered Securities, whose Stated Maturity is
prior to (or, if specified
pursuant to Section 301, on) 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
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,
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
Section 1006, 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
Section 1006, 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 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 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 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.
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
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
(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.
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.
<PAGE>
* * * * *
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.
JOHN DEERE CAPITAL CORPORATION
By /s/Nathan J. Jones
[SEAL] Treasurer
Attest: /s/Michael A. Harring
[Assistant Secretary]
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
By /s/Mary Lewicki
[SEAL]
Attest: /s/Kathleen Perry
<PAGE>
STATE OF ILLINOIS )
) ss:
COUNTY OF ROCK ISLAND )
On the 11th day of July, 1995, 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 John Deere Capital
Corporation, 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 10th day of July, 1995, before me
personally came Mary Lewicki, to me known, who, being by me duly
sworn, did depose and say that she resides at 16 Cedar Avenue
Staten Island, NY; 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 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/Denis Kelly
Notary Public
COMMISSION EXPIRES
<PAGE>
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 John
Deere Capital Corporation 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.
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:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL BANK 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 John Deere Capital Corporation 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.
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 Bank]
By
EXHIBIT 4.2
John Deere Capital Corporation
To
The First National Bank of Chicago,
Trustee
Indenture
Dated as of June 15, 1995
Providing for the Issuance
of
Subordinated Debt Securities
<PAGE>
JOHN DEERE CAPITAL CORPORATION
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of June 15, 1995
Trust Indenture Act Section
Indenture Section
Section 310(a)(1). . . . . . . . . . . . . . . . . . . . . . 607(a)
(a)(2). . . . . . . . . . . . . . . . . . . . . . . 607(a)
(b) . . . . . . . . . . . . . . . . . . . . . . . 607(b), 608
Section 312(c) . . . . . . . . . . . . . . . . . . . . . 701
Section 314(a) . . . . . . . . . . . . . . . . . . . . . . 703
(a)(4). . . . . . . . . . . . . . . . . . . . . . 1005
(c)(1). . . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . . 102
(e) . . . . . . . . . . . . . . .. . . . . . .. 102
Section 315(b) . . . . . . . . . . . . . . . . . . . . . . 601
Section 316(a) (last sentence) . . . . . . . . . . . . . . 101
("Outstanding")
(a)(1)(A) . . . . . . . . . . . . . . . . . . . 502, 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . 513
(b) . . . . . . . . . . . . . . . . . . . . . . 508
Section 317(a)(1). . . . . . . . . . . . . . . . . . . . . 503
(a)(2). . . . . . . . . . . . . . . . . . . . . 504
Section 318(a) . . . . . . . . . . . . . . . . . . . . . . 111
(c) . . . . . . . . . . . . . . . . . . . . . . 111
NOTE: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the
Indenture.
<PAGE>
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . .1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . .1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions. . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . 2
Additional Amounts. . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . . . . . 2
Authorized Newspaper. . . . . . . . . . . . . 2
Bearer Security . . . . . . . . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . . . . . 3
Board Resolution. . . . . . . . . . . . . . . . . . 3
Business Day. . . . . . . . . . . . . . . . . . . . 3
CEDEL . . . . . . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . 3
Company Request and Company Order . . . . . . . . . 3
Conversion Date . . . . . . . . . . . . . . . . . . 3
Conversion Event. . . . . . . . . . . . . . . . . . 3
Corporate Trust Office. . . . . . . . . . . . . . 4
corporation . . . . . . . . . . . . . . . . . . . 4
coupon. . . . . . . . . . . . . . . . . . . . . 4
Currency. . . . . . . . . . . . . . . . . . . . . . 4
Default . . . . . . . . . . . . . . . . . . . . . . 4
Defaulted Interest. . . . . . . . . . . . . . . . . 4
Dollar or $ . . . . . . . . . . . . . . . . . . . . 4
ECU . . . . . . . . . . . . . . . . . . . . . . . . 4
Election Date . . . . . . . . . . . . . . . . . . . 4
Euroclear . . . . . . . . . . . . . . . . . . . . 4
European Communities. . . . . . . . . . . . . . . . 4
European Monetary System. . . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . . . . . 4
Exchange Rate Agent . . . . . . . . . . . . . . . . 4
Exchange Rate Officer's Certificate . . . . . . . . 5
Foreign Currency. . . . . . . . . . . . . . . . . . 5
Government Obligations. . . . . . . . . . . . . . . 5
Holder. . . . . . . . . . . . . . . . . . . . . . 5
Indenture . . . . . . . . . . . . . . . . . . . . . 5
Indexed Security. . . . . . . . . . . . . . . . . . 6
interest. . . . . . . . . . . . . . . . . . . . . . 6
Interest Payment Date . . . . . . . . . . . . . . . 6
Market Exchange Rate. . . . . . . . . . . . . . . . 6
Maturity. . . . . . . . . . . . . . . . . . . . . . 7
Officers' Certificate . . . . . . . . . . . . . . 7
Opinion of Counsel. . . . . . . . . . . . . . . . . 7
Original Issue Discount Security. . . . . . . . . . 7
Outstanding . . . . . . . . . . . . . . . . . . . . 7
Paying Agent. . . . . . . . . . . . . . . . . . . . 8
Person. . . . . . . . . . . . . . . . . . . . . . . 8
Place of Payment. . . . . . . . . . . . . . . . . . 9
Predecessor Security. . . . . . . . . . . . . . . . 9
Redemption Date . . . . . . . . . . . . . . . . . . 9
Redemption Price. . . . . . . . . . . . . . . . . . 9
Registered Security . . . . . . . . . . . . . . 9
Regular Record Date . . . . . . . . . . . . . . . . 9
Repayment Date. . . . . . . . . . . . . . . . . . . 9
Repayment Price . . . . . . . . . . . . . . . . . . 9
Responsible Officer . . . . . . . . . . . . . . . . 9
Security or Securities. . . . . . . . . . . . . . . 10
Security Register and Security Registrar. . . . . . 10
Senior Indebtedness . . . . . . . . . . . . . . . . 10
Special Record Date . . . . . . . . . . . . . . . . 10
Stated Maturity . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA. . . . . . . . . . . . . 10
Trustee . . . . . . . . . . . . . . . . . . . . . . 10
United States . . . . . . . . . . . . . . . . . . . 11
United States person. . . . . . . . . . . . . . . . 11
Valuation Date. . . . . . . . . . . . . . . . . . . 11
Yield to Maturity . . . . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions . . . 11
SECTION 103. Form of Documents Delivered to Trustee . . 12
SECTION 104. Acts of Holders. . . . . . . . . . . . . . 12
SECTION 105. Notices, Etc., to Trustee and Company. . . 14
SECTION 106. Notice to Holders; Waiver. . . . . . . . . 14
SECTION 107. Effect of Headings and Table of Contents . 15
SECTION 108. Successors and Assigns . . . . . . . . . . 15
SECTION 109. Separability Clause. . . . . . . . . . . . 15
SECTION 110. Benefits of Indenture. . . . . . . . . . . 15
SECTION 111. Governing Law. . . . . . . . . . . . . . . 16
SECTION 112. Legal Holidays . . . . . . . . . . . . . . 16
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. . . . . . . . . . . 16
SECTION 202. Form of Trustee's Certificate of
Authentication. . . . 17
SECTION 203. Securities Issuable in Global Form . . . 17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . .18
SECTION 302. Denominations. . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery
and Dating . . . . 22
SECTION 304. Temporary Securities . . . . . . . . . . 24
SECTION 305. Registration, Registration of Transfer
and Exchange. . 27
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities . . . 30
SECTION 307. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset .. . 31
SECTION 308. Optional Extension of Maturity . . . .. . 34
SECTION 309. Persons Deemed Owners. . . . . . . . .. . 35
SECTION 310. Cancellation . . . . . . . . . . . . .. . 36
SECTION 311. Computation of Interest. . . . . . . .. . 36
SECTION 312. Currency and Manner of Payments in
Respect of Securities 37
SECTION 313. Appointment and Resignation of Successor
Exchange Rate Agent. . . .. . . . . . . 40
SECTION 314. CUSIP Numbers. . . . . . . .. . . . . . . 41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture.. 41
SECTION 402. Application of Trust Funds . . . . . . .. 43
<PAGE>
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . 43
SECTION 502. Acceleration of Maturity; Rescission and
Annulment . . 45
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. . . . . . . . 46
SECTION 504. Trustee May File Proofs of Claim .. . . . 46
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons . 47
SECTION 506. Application of Money Collected . . . . . 47
SECTION 507. Limitation on Suits. . . . . . . . . . . 48
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest . . . . 49
SECTION 509. Restoration of Rights and Remedies . . . 49
SECTION 510. Rights and Remedies Cumulative . . . . . 49
SECTION 511. Delay or Omission Not Waiver . . . . . . 49
SECTION 512. Control by Holders of Securities . . . . 49
SECTION 513. Waiver of Past Defaults. . . . . . . . . 50
SECTION 514. Waiver of Stay or Extension Laws . . . . 50
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults . . . . . . . . . . . 50
SECTION 602. Certain Rights of Trustee. . . . . . . . 51
SECTION 603. Not Responsible for Recitals or Issuance
of Securities 52
SECTION 604. May Hold Securities. . . . . . . . . . . 52
SECTION 605. Money Held in Trust. . . . . . . . . . 52
SECTION 606. Compensation and Reimbursement . . .. . . 53
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests 53
SECTION 608. Resignation and Removal; Appointment of
Successor. . . 54
SECTION 609. Acceptance of Appointment by Successor . 55
SECTION 610. Merger, Conversion, Consolidation or
Succession to Business 56
SECTION 611. Appointment of Authenticating Agent. . . 57
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of
Holders . . . . . 58
SECTION 702. Reports by Trustee . . . . . . . . . . . 59
SECTION 703. Reports by Company .. . . . . . . . . . . 59
SECTION 704. Calculation of Original Issue Discount .. 60
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on
Certain Terms . 60
SECTION 802. Successor Person Substituted . . . . . . 60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent
of Holders . . 61
SECTION 902. Supplemental Indentures with Consent of
Holders. . . . 62
SECTION 903. Execution of Supplemental Indentures . . 64
SECTION 904. Effect of Supplemental Indentures. . .. . 64
SECTION 905. Conformity with Trust Indenture Act. .. . 64
SECTION 906. Reference in Securities to Supplemental
Indentures . . 64
SECTION 907. Effect on Senior Indebtedness. . . . . . 64
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium,
If Any, and Interest . 64
SECTION 1002. Maintenance of Office or Agency . . . . 65
SECTION 1003. Money for Securities Payments to
Be Held in Trust . . 66
SECTION 1004. Additional Amounts. . . . . . . . . 68
SECTION 1005. Statement as to Compliance. . . . . . . 69
SECTION 1006. Waiver of Certain Covenants . . . . . . 69
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . 69
SECTION 1102. Election to Redeem; Notice to Trustee .. 69
SECTION 1103. Selection by Trustee of Securities to Be
Redeemed . . 69
SECTION 1104. Notice of Redemption. . . . . . . . . . 70
SECTION 1105. Deposit of Redemption Price . . . . . . 71
SECTION 1106. Securities Payable on Redemption Date .. 72
SECTION 1107. Securities Redeemed in Part . . . . . .. 73
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. .. . . . . . . 73
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities 73
SECTION 1203. Redemption of Securities for Sinking
Fund . . . . . . 74
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . 74
SECTION 1302. Repayment of Securities . . . . . . . . 74
SECTION 1303. Exercise of Option. . . . . . . . . . . 75
SECTION 1304. When Securities Presented for
Repayment Become Due and Payable. . 75
SECTION 1305. Securities Repaid in Part .. . . . . . . 76
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to
Effect Defeasance or Covenant
Defeasance. . . . . . . . . . . 76
SECTION 1402. Defeasance and Discharge. . . . . . . . 77
SECTION 1403. Covenant Defeasance . . . . . . . . . 77
SECTION 1404. Conditions to Defeasance or Covenant
Defeasance . . . 78
SECTION 1405. Deposited Money and Government
Obligations to Be Held in Trust;
Other Miscellaneous Provisions . 79
<PAGE>
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be
Called . . . . . . 81
SECTION 1502. Call, Notice and Place of Meetings. . . 81
SECTION 1503. Persons Entitled to Vote at Meetings.. . 81
SECTION 1504. Quorum; Action. . . . . . . . . . . . . 81
SECTION 1505. Determination of Voting Rights;
Conduct and Adjournment of Meetings. . 83
SECTION 1506. Counting Votes and Recording Action of
Meetings . . . 84
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Agreement to Subordinate. . . . . . . . 84
SECTION 1602. Distribution on Dissolution,
Liquidation and Reorganization;
Subrogation of Securities. . . . . . . 84
SECTION 1603. No Payment on Securities in Event
of Default on Senior Indebtedness .. 86
SECTION 1604. Payments on Securities Permitted. . . . 86
SECTION 1605. Authorization of Holders to Trustee
to Effect Subordination 87
SECTION 1606. Notices to Trustee. . . . . . . . . . . 87
SECTION 1607. Trustee as Holder of Senior
Indebtedness. . . . . . . 87
SECTION 1608. Modifications of Terms of Senior
Indebtedness . . . . 88
SECTION 1609. Reliance on Judicial Order or
Certificate of Liquidating Agent. . . . 88
TESTIMONIUM. . . . . . . . . . . . . . . . . . . . . . . . 93
SIGNATURE AND SEALS. . . . . . .. . . . . . . . . . . . . . 93
ACKNOWLEDGEMENTS
EXHIBIT A - FORMS OF CERTIFICATION
<PAGE>
INDENTURE, dated as of June 15, 1995, between JOHN DEERE
CAPITAL
CORPORATION, a Delaware corporation (hereinafter called the
"Company"), having its
principal office at 1 East First Street, Reno, Nevada 89501, and
THE FIRST NATIONAL
BANK OF CHICAGO, a corporation organized and existing under the
laws of the United
States, as Trustee (hereinafter called the "Trustee"), having its
Corporate Trust Office at One
First National Plaza, Suite 0126, Chicago, Illinois 60670-0126.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to
time for its lawful
purposes subordinated debt securities (hereinafter called the
"Securities") evidencing its
unsecured and subordinated 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 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 and Article Six,
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.
"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 Cedel Bank 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.
"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 One First National Plaza, Suite
0126, Chicago, Illinois 60670-
0126.
"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.
"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 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 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 not
unsatisfactory to the Trustee.
"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
(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.
"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 the
chairman or vice-chairman of the board of directors, the chairman
or vice-chairman of the
executive committee of the board of directors, the president, any
vice president, any assistant
vice president, the secretary, any assistant secretary, the
treasurer, any assistant treasurer,
the cashier, any assistant cashier, any trust officer or
assistant trust officer, the controller and
any assistant controller or any other officer of the Trustee
customarily performing functions
similar to those performed by any of the above designated
officers and also means, with
respect to a particular corporate trust matter, any other officer
to whom such matter is
referred because of his knowledge of and familiarity with the
particular subject.
"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.
"Security Register" and "Security Registrar" have the
respective meanings
specified in Section 305.
"Senior Indebtedness" means the principal of (and
premium, if any) and
unpaid interest on (a) indebtedness of the Company (including
indebtedness of others
guaranteed by the Company), whether outstanding on the date
hereof or thereafter created,
incurred, assumed or guaranteed, for money borrowed (other than
the 5-1/2% Convertible
Subordinated Debentures due 2001 of the Company and the
indebtedness evidenced by the
Securities outstanding on the date hereof or thereafter created),
unless in the instrument
creating or evidencing the same or pursuant to which the same is
outstanding it is provided
that such indebtedness is not senior or prior in right of payment
to the Securities, and (b)
renewals, extensions, modifications and refundings of any such
indebtedness. The Securities
are neither senior or prior nor junior or subordinate in right of
payment to the 5-1/2%
Convertible Subordinated Debentures due 2001 of the Company.
"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.
"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 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 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
which 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 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 Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration,
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 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 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:
This is one of the Securities of the series designated
therein referred to in the
within-mentioned Indenture.
The First National Bank of
Chicago, 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
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 be subordinated in right of
payment to Senior Indebtedness
as provided in Article Sixteen.
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 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 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 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 denominations 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
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 1006) 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;
(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 of the series 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 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
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.
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 or an
Authenticating Agent by manual
signature of an authorized officer, 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
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 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 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.
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
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 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.
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.
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 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 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 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 a higher interest rate (or a spread or spread
multiplier providing for a higher
interest rate, if applicable), 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 spread or spread multiplier providing for a higher interest
rate, 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 providing for a higher
interest rate, if applicable).
The Holder of any such Security may 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 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 (or spread, spread multiplier or other formula used
to calculate such interest
rate, if applicable), 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 (or
spread, spread multiplier or other formula used to calculate such
interest rate, if applicable)
provided for in the Extension Notice and establish a higher
interest rate (or spread, spread
multiplier or other formula used to calculate such higher
interest rate, if applicable) for the
Extension Period by causing the Trustee to transmit, in the
manner provided for in Section
106, notice of such higher interest rate (or spread, spread
multiplier or other formula used to
calculate such interest rate, if applicable) 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
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.
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 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.
(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.
"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 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.
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 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;
(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
occasioned by the provisions of Article Sixteen or 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
(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.
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.
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 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:
(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:
FIRST: To the payment of all amounts due the Trustee
and any predecessor
Trustee under Section 606;
SECOND: Subject to Article 16, 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.
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.
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
(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.
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 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 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, and
(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.
When the Trustee incurs expenses or renders services
after an Event of Default
specified in Section 501(5) or (6) occurs, the expenses and compensation
for the services are
intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting
Interests. (a) There shall at all times be a Trustee hereunder
which shall be eligible to act
as Trustee under TIA 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.
(b) The following indenture shall be deemed to be
specifically described
herein for the purposes of clause (i) of the first proviso
contained in TIA Section 310(b):
Indenture dated as of June 15, 1989 between John Deere Capital
Corporation and The First
National Bank of Chicago.
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 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
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
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, 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 First National Bank of
Chicago, as Trustee
By
as Authenticating Agent
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;
(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; and
(3) 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 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 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
(7) 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
(8) 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
(9) 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 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, subject to the
provisions of Section 309; or reduce the principal amount
thereof or the rate of
interest (or change the manner 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
1006, 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, or
(4) modify any of the provisions of this Indenture
relating to the
subordination of the Securities in a manner adverse to the
Holders.
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 prepared and executed by the Company and authenticated and
delivered by the
Trustee in exchange for Outstanding Securities of such series.
SECTION 907. Effect on Senior Indebtedness. No
supplemental indenture
shall adversely affect the rights of any holder of Senior
Indebtedness under Article Sixteen
without the consent of such holder.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, If Any,
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 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 to Section 301 with respect to a series of Securities,
the Company hereby designates
as a Place 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
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
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
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. Waiver of Certain Covenants. As
specified pursuant to
Section 301(15) for Securities of any series, the Company may
omit in any particular
instance to comply with any term, provision or condition set
forth in any covenants of the
Company added to Article Ten pursuant to Section 301(14) or
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
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
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 (unless
otherwise specified pursuant to
Section 301) 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 prior to
(or, if specified pursuant to Section 301, on) 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 an
Original Issue Discount Security, at the Yield to Maturity of
such Security.
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 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 (unless specified pursuant to Section 301) 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 installments
of interest on Registered Securities whose Stated Maturity is
prior to (or, if specified
pursuant to Section 301, on) 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
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,
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. Money and securities held in trust pursuant to this
Section 1402 shall not be subject
to Article Sixteen.
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, if specified pursuant to
Section 301, from its
obligations under any 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 each such 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 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 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 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.
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
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
(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.
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.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Agreement to Subordinate. The Company,
for itself, its
successors and assigns, covenants and agrees, and each Holder of
Securities by his
acceptance thereof, likewise covenants and agrees, that the
payment of the principal of (and
premium, if any) and interest, if any, on each and all of the
Securities is hereby expressly
subordinated, to the extent and in the manner hereinafter set
forth, in right of payment to the
prior payment in full of all Senior Indebtedness.
SECTION 1602. Distribution on Dissolution, Liquidation
and
Reorganization; Subrogation of Securities. Upon any distribution
of assets of the
Company upon any dissolution, winding up, liquidation or
reorganization of the Company,
whether in bankruptcy, insolvency, reorganization or
receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling
of the assets and liabilities of
the Company or otherwise (subject to the power of a court of
competent jurisdiction to make
other equitable provision reflecting the rights conferred in this
Indenture upon the Senior
Indebtedness and the holders thereof with respect to the
Securities and the holders thereof by
a lawful plan of reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be
entitled to receive
payment in full of the principal thereof (and premium, if
any) and interest due thereon
before the Holders of the Securities are entitled to receive
any payment upon the
principal (or premium, if any) or interest, if any, on
indebtedness evidenced by the
Securities; and
(b) any payment or distribution of assets of the
Company of any kind or
character, whether in cash, property or securities, to which
the Holders of the
Securities or the Trustee would be entitled except for the
provisions of this Article
Sixteen shall be paid by the liquidating trustee or agent or
other person making such
payment or distribution, whether a trustee in bankruptcy, a
receiver or liquidating
trustee or otherwise, directly to the holders of Senior
Indebtedness or their
representative or representatives or to the trustee or
trustees under any indenture
under which any instruments evidencing any of such Senior
Indebtedness may have
been issued, ratably according to the aggregate amounts
remaining unpaid on account
of the principal of (and premium, if any) and interest on
the Senior Indebtedness held
or represented by each, to the extent necessary to make
payment in full of all Senior
Indebtedness remaining unpaid, after giving effect to any
concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing,
any payment or
distribution of assets of the Company of any kind or
character, whether in cash,
property or securities, shall be received by the Trustee or
the Holders of the
Securities before all Senior Indebtedness is paid in full,
such payment or distribution
shall be paid over, upon written notice to the Trustee, to
the holder of such Senior
Indebtedness or their representative or representatives or
to the trustee or trustees
under any indenture under which any instrument evidencing
any of such Senior
Indebtedness may have been issued, ratably as aforesaid, for
application to payment
of all Senior Indebtedness remaining unpaid until all such
Senior Indebtedness shall
have been paid in full, after giving effect to any
concurrent payment or distribution to
the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior
Indebtedness, the Holders of the
Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive
payments or distributions of cash, property or securities of the
Company applicable to Senior
Indebtedness until the principal of (and premium, if any) and
interest, if any, on the
Securities shall be paid in full and no such payments or
distributions to the Holders of the
Securities of cash, property or securities otherwise
distributable to the holders of Senior
Indebtedness shall, as between the Company, its creditors other
than the holders of Senior
Indebtedness, and the Holders of the Securities be deemed to be a
payment by the Company
to or on account of the Securities. It is understood that the
provisions of this Article Sixteen
are and are intended solely for the purpose of defining the
relative rights of the Holders of
the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other
hand. Nothing contained in this Article Sixteen or elsewhere in
this Indenture or in the
Securities is intended to or shall impair, as between the
Company, its creditors other than the
holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the
Holders of the Securities the
principal of (and premium, if any) and interest, if any, on the
Securities as and when the
same shall become due and payable in accordance with their terms,
or to affect the relative
rights of the Holders of the Securities and creditors of the
Company other than the holders of
Senior Indebtedness, nor shall anything herein or in the
Securities prevent the Trustee or the
Holder of any Security from exercising all remedies otherwise
permitted by applicable law
upon default under this Indenture, subject to the rights, if any,
under this Article Sixteen of
the holders of Senior Indebtedness in respect of cash, property
or securities of the Company
received upon the exercise of any such remedy. Upon any payment
or distribution of assets
of the Company referred to in this Article Sixteen, the Trustee,
subject to the provisions of
Section 601, shall be entitled to rely upon a certificate of the
liquidating trustee or agent or
other person making any distribution to the Trustee for the
purpose of ascertaining the
Persons entitled to participate in such distribution, the
holders of Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable
thereon, the amount or
amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article
Sixteen.
The Trustee, however, shall not be deemed to owe any
fiduciary duty to the
holders of Senior Indebtedness. The Trustee shall not be liable
to any such holder if it shall
pay over or distribute to or on behalf of Holders of Securities
or the Company moneys or
assets to which any holder of Senior Indebtedness shall be
entitled by virtue of this Article
Sixteen.
If the Trustee or any Holder of Securities does not
file a proper claim or proof
of debt in the form required in any proceeding referred to above
prior to 30 days before the
expiration of the time to file such claim in such proceeding,
then the holder of any Senior
Indebtedness is hereby authorized, and has the right, to file an
appropriate claim or claims
for or on behalf of such Holder of Securities.
SECTION 1603. No Payment on Securities in Event of
Default on Senior
Indebtedness. No payment by the Company on account of principal
(or premium, if any),
sinking funds or interest, if any, on the Securities shall be
made unless full payment of
amounts then due for principal (premium, if any), sinking funds
and interest on Senior
Indebtedness has been made or duly provided for in money or
money's worth.
SECTION 1604. Payments on Securities Permitted.
Nothing contained in
this Indenture or in any of the Securities shall (a) affect the
obligation of the Company to
make, or prevent the Company from making, at any time except as
provided in Sections
1602 and 1603, payments of principal of (or premium, if any) or
interest, if any, on the
Securities or (b) prevent the application by the Trustee of any
moneys deposited with it
hereunder to the payment of or on account of the principal of (or
premium, if any) or
interest, if any, on the Securities, unless the Trustee shall
have received at its Corporate
Trust Office written notice of any event prohibiting the making
of such payment more than
two Business Days prior to the date fixed for such payment.
SECTION 1605. Authorization of Holders to Trustee to
Effect
Subordination. Each Holder of Securities by his acceptance
thereof authorizes and directs
the Trustee on his behalf to take such action as may be necessary
or appropriate to effectuate
the subordination as provided in this Article Sixteen and
appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 1606. Notices to Trustee. Notwithstanding the
provisions of this
Article or any other provisions of this Indenture, neither the
Trustee nor any Paying Agent
(other than the Company) shall be charged with knowledge of the
existence of any Senior
Indebtedness or of any event which would prohibit the making of
any payment of moneys to
or by the Trustee or such Paying Agent, unless and until the
Trustee or such Paying Agent
shall have received (in the case of the Trustee, at its Corporate
Trust Office) written notice
thereof from the Company or from the holder of any Senior
Indebtedness or from the trustee
for any such holder, together with proof satisfactory to the
Trustee of such holding of Senior
Indebtedness or of the authority of such trustee; provided,
however, that if at least two
Business Days prior to the date upon which by the terms hereof
any such moneys may
become payable for any purpose (including, without limitation,
the payment of either the
principal (or premium, if any) or interest, if any, on any
Security) the Trustee shall not have
received with respect to such moneys the notice provided for in
this Section 1606, then,
anything herein contained to the contrary notwithstanding, the
Trustee shall have full power
and authority to receive such moneys and to apply the same to the
purpose for which they
were received, and shall not be affected by any notice to the
contrary, which may be
received by it within two Business Days prior to such date. The
Trustee shall be entitled to
rely on the delivery to it of a written notice by a Person
representing himself to be a holder
of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such a notice
has been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder.
In the event that the Trustee determines in good faith that
further evidence is required with
respect to the right of any Person as a holder of Senior
Indebtedness to participate in any
payment or distribution pursuant to this Article Sixteen, the
Trustee may request such Person
to furnish evidence to the reasonable satisfaction of the Trustee
as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person
is entitled to participate in
such payment or distribution and any other facts pertinent to the
rights of such Person under
this Article Sixteen and, if such evidence is not furnished, the
Trustee may defer any
payment to such Person pending judicial determination as to the
right of such Person to
receive such payment.
SECTION 1607. Trustee as Holder of Senior
Indebtedness. The Trustee
in its individual capacity shall be entitled to all the rights
set forth in this Article Sixteen in
respect of any Senior Indebtedness at any time held by it to the
same extent as any other
holder of Senior Indebtedness and nothing in Section 613 or
elsewhere in this Indenture shall
be construed to deprive the Trustee of any of its rights as such
holder.
Nothing in this Article Sixteen shall apply to claims
of, or payments to, the
Trustee under or pursuant to Section 606.
SECTION 1608. Modifications of Terms of Senior
Indebtedness. Any
renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by
the holders of Senior Indebtedness of any of their rights under
any instrument creating or
evidencing Senior Indebtedness, including, without limitation,
the waiver of default
thereunder, may be made or done all without notice to or assent
from the Holders of the
Securities or the Trustee.
No compromise, alteration, amendment, modification,
extension, renewal or
other change of, or waiver, consent or other action in respect
of, any liability or obligation
under or in respect of, or of any of the terms, covenants or
conditions of any indenture or
other instrument under which any Senior Indebtedness is
outstanding or of such Senior
Indebtedness, whether or not such release is in accordance with
the provisions of any
applicable document, shall in any way alter or affect any of the
provisions of this Article
Sixteen or of the Securities relating to the subordination
thereof.
SECTION 1609. Reliance on Judicial Order or
Certificate of Liquidating
Agent. Upon any payment or distribution of assets of the Company
referred to in this
Article Sixteen, the Trustee and the Holders of the Securities
shall be entitled to rely upon
any order or decree entered by any court of competent
jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case
or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent
or other person making such
payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the
purpose of ascertaining the persons entitled to participate in
such payment or distribution, the
holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof
or payable thereon, the amount or amounts paid or distributed
thereon and all other facts
pertinent thereto or to this Article Sixteen.
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.
JOHN DEERE CAPITAL CORPORATION
By /s/Nathan J. Jones
[SEAL] Treasurer
Attest: Michael A. Harring
[Assistant Secretary]
THE FIRST NATIONAL BANK OF
CHICAGO, as Trustee
By /s/R. D. Manella
[SEAL]
Attest: /s/Janice Ott Rotunno
<PAGE>
STATE OF ILLINOIS )
) ss:
COUNTY OF ROCK ISLAND )
On the 11th day of July, 1995, 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 the
Treasurer of John Deere Capital Corporation, 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 ILLINOIS )
) ss:
COUNTY OF COOK )
On the 7th day of July, 1995, before me
personally came R. D. Manella
, to me known, who, being by
me duly sworn, did depose and
say that he resides at Buffalo Grove, Illinois; that he is
a Vice President of The First
National Bank of Chicago, 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/Darla R. Coulson
Notary Public
COMMISSION EXPIRES
<PAGE>
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 John
Deere Capital Corporation 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.
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:
<PAGE>
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CEDEL BANK 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 John Deere Capital
Corporation 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.
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 Bank]
By
Exhibit 12
JOHN DEERE CAPITAL CORPORATION AND SUBSIDIARIES
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(IN THOUSANDS OF DOLLARS)
Nine Months Ended 31 July
1995 1994
Earnings:
Income before income
taxes and changes
in accounting $133,912 $114,788
Fixed charges 175,298 117,883
Total earnings $309,210 $232,671
Fixed charges:
Interest expense $173,472 $115,967
Rent expense 1,826 1,916
Total fixed charges $175,298 $117,883
Ratio of earnings to
fixed charges* 1.76 1.97
<PAGE>
Year Ended 31 October
Earnings: 1994 1993 1992
Income before income
taxes and changes
in accounting $161,809 $169,339 $142,920
Fixed charges 168,507 170,226 191,930
Total earnings $330,316 $339,565 $334,850
Fixed charges:
Interest expense $166,591 $167,787 $189,288
Rent expense 1,916 2,439 2,642
Total fixed charges $168,507 $170,226 $191,930
Ratio of earnings to
fixed charges* 1.96 1.99 1.74
<PAGE>
Year Ended 31 October
Earnings: 1991 1990
Income before income
taxes and changes
in accounting $110,820 $ 99,366
Fixed charges 230,901 216,985
Total earnings $341,721 $316,351
Fixed charges:
Interest expense $228,308 $214,707
Rent expense 2,593 2,278
Total fixed charges $230,901 $216,985
Ratio of earnings to
fixed charges* 1.48 1.46
_____
"Earnings" consist of income before income taxes, the cumulative
effect of changes in accounting and fixed charges. "Fixed charges"
consist of interest on indebtedness, amortization of debt discount
and expense, an estimated amount of rental expense under
capitalized leases which is deemed to be representative of the
interest factor and rental expense under operating leases.
* The Company has not issued preferred stock. Therefore, the
ratios of earnings to combined fixed charges and preferred
stock dividends are the same as the ratios presented above.
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from Form 10-Q
and is qualified in its entirety by reference to such financial statements.
</LEGEND>
<CIK> 0000027673
<NAME> JOHNDEERECAPITALCORPORATION
<MULTIPLIER> 1,000,000
<CURRENCY> U.S. DOLLARS
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> OCT-31-1995
<PERIOD-START> NOV-01-1994
<PERIOD-END> JUL-31-1995
<EXCHANGE-RATE> 1
<CASH> 153
<SECURITIES> 0
<RECEIVABLES> 4,468
<ALLOWANCES> 80
<INVENTORY> 0
<CURRENT-ASSETS> 0
<PP&E> 16
<DEPRECIATION> 10
<TOTAL-ASSETS> 4,738
<CURRENT-LIABILITIES> 0
<BONDS> 1,414
<COMMON> 113
0
0
<OTHER-SE> 573
<TOTAL-LIABILITY-AND-EQUITY> 4,738
<SALES> 0
<TOTAL-REVENUES> 403
<CGS> 0
<TOTAL-COSTS> 16
<OTHER-EXPENSES> 0
<LOSS-PROVISION> 21
<INTEREST-EXPENSE> 173
<INCOME-PRETAX> 134
<INCOME-TAX> 47
<INCOME-CONTINUING> 87
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 87
<EPS-PRIMARY> 0
<EPS-DILUTED> 0
</TABLE>
