<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JUNE 15, 1994
REGISTRATION NO. 33-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
DEERE & COMPANY
(Exact name of Registrant as specified in its charter)
--------------------------
<TABLE>
<S> <C>
DELAWARE 36-2382580
(State or other (I.R.S. employer
jurisdiction of identification number)
incorporation or
organization)
</TABLE>
JOHN DEERE ROAD
MOLINE, ILLINOIS 61265-8098
309/765-8000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
FRANK S. COTTRELL
DEERE & COMPANY
JOHN DEERE ROAD
MOLINE, ILLINOIS 61265-8098
309/765-4675
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
COPIES TO:
<TABLE>
<S> <C>
JONATHAN JEWETT HOWARD G. GODWIN, JR.
SHEARMAN & STERLING BROWN & WOOD
599 LEXINGTON AVENUE ONE WORLD TRADE CENTER
NEW YORK, NEW YORK 10022 NEW YORK, NEW YORK 10048
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THE REGISTRATION STATEMENT BECOMES EFFECTIVE.
--------------------------
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to rule 415 under the Securities Act of
1933, other than securities being offered only in connection with dividend or
interest reinvestment plans, check the following box. /X/
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED BE REGISTERED PER UNIT(1) OFFERING PRICE(1) REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt securities(2)................................. 100%
Warrants to purchase debt securities............... --
Preferred Stock(3)................................. --
Depositary Shares.................................. $501,425,000 -- $501,425,000 $172,906
Common Stock(4).................................... --
Warrants to purchase common stock(5)............... --
Currency warrants and other warrants............... 100%
<FN>
(1) Estimated for the purpose of computing the registration fee.
(2) Or, in the event of the issuance of original issue discount securities,
such higher principal amount as may be sold for an initial offering price
of up to $501,425,000.
(3) Such indeterminate number of shares of Preferred Stock as may, from time to
time, be issued at indeterminate prices, including Preferred Stock issuable
upon conversion into or exchange of securities of the Company.
(4) Such indeterminate number of shares of Common Stock as may, from time to
time, be issued at indeterminate prices, including Common Stock issuable
upon conversion into or exchange of securities of the Company. Each share
of Common Stock includes a right to purchase certain shares of Preferred
Stock which, prior to the occurrence of certain events, will not be
exercisable or evidenced separately from the Common Stock.
(5) Notwithstanding the paragraph immediately below, the warrants to purchase
common stock may only be issued in the amounts registered herein.
</TABLE>
------------------------------
Pursuant to rule 429 under the Securities Act of 1933, the prospectus
included in this registration statement is a combined prospectus relating also
to registration statement no. 33-66134 previously filed by the registrant on
form S-3 and declared effective on July 27, 1993. This registration statement,
which is a new registration statement, also constitutes post-effective amendment
no. 1 to registration statement no. 33-66134, and such post-effective amendment
no. 1 shall hereafter become effective concurrently with the effectiveness of
this registration statement and in accordance with section 8(c) of the
Securities Act of 1933.
--------------------------
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant shall
file a further amendment which specifically states that this registration
statement shall thereafter become effective in accordance with section 8(a) of
the Securities Act of 1933 or until the registration statement shall become
effective on such date as the Commission, acting pursuant to said section 8(a),
may determine.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION, DATED JUNE 15, 1994
PROSPECTUS
DEERE & COMPANY
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
PREFERRED STOCK
DEPOSITARY SHARES
COMMON STOCK
WARRANTS TO PURCHASE COMMON STOCK
CURRENCY WARRANTS AND OTHER WARRANTS
Deere & Company (the "Company") may offer and sell from time to time under
this prospectus, together or separately, (i) its unsecured debt securities (the
"Debt Securities"), which may be either senior (the "Senior Securities") or
subordinated (the "Subordinated Securities"), (ii) warrants to purchase Debt
Securities (the "Debt Warrants"), (iii) shares of its preferred stock (the
"Preferred Stock"), (iv) depositary shares (the "Depositary Shares")
representing interests in Preferred Stock, (v) shares of its common stock (the
"Common Stock"), (vi) warrants to purchase Common Stock (the "Common Warrants")
and (vii) options, warrants or other rights relating to foreign currency
exchange rates (the "Currency Warrants") or relating to other items or indices
(collectively, the "Other Warrants"), all on terms to be determined at the time
of offering. The Debt Securities and Preferred Stock may be convertible into or
exchangeable for Common Stock or other securities as herein described.
The Debt Warrants, Common Warrants, Currency Warrants and Other Warrants are
collectively called the "Warrants". The Debt Securities, Warrants, Preferred
Stock, Depositary Shares and Common Stock, or a combination thereof, proposed to
be sold pursuant to this prospectus and the accompanying prospectus supplement
are referred to as the "Offered Securities", and the Offered Securities,
together with any Debt Securities, Preferred Stock and Common Stock issuable
upon exercise of Warrants or conversion or exchange of other Securities, are
referred to as the "Securities". Securities (including Securities issuable upon
exercise of Warrants or upon conversion or exchange of other Securities) with an
aggregate initial offering price of up to $700,000,000 (or the equivalent
thereof if any of the Securities are denominated in a currency, currency unit or
composite currency ("Currency") other than the U.S. dollar) may be issued under
this prospectus.
The prospectus supplement accompanying this prospectus sets forth, with
respect to each series or issue of Securities for which this prospectus and the
prospectus supplement are being delivered; (i) the terms of any Debt Securities
offered, including, where applicable, their title, ranking, aggregate principal
amount, maturity, rate of any interest (or manner of calculation) and time of
payment thereof, any redemption or repayment terms, the Currency or Currencies
in which such Debt Securities will be denominated or payable, any index, formula
or other method pursuant to which principal, premium, if any, or interest, if
any, may be determined, any terms for the conversion or exchange thereof and the
form of such Debt Securities (which may be in registered, bearer or global
form); (ii) the terms of any Warrants offered, including, where applicable, the
exercise price, detachability, expiration date and other terms; (iii) the terms
of any Preferred Stock offered, including the specific designations and
dividend, redemption, liquidation, voting and other rights not described in this
prospectus and any terms for the conversion or exchange thereof; (iv) the terms
of any Depositary Shares offered; and (v) any initial offering price, the
purchase price and net proceeds to the Company and the other specific terms
related to the offering of such Securities.
The Company may sell Offered Securities to or through underwriters, dealers
or agents, and also may sell Offered Securities directly to other purchasers.
See "Plan of Distribution". No Offered Securities may be sold without delivery
of a prospectus supplement describing such Offered Securities and the method and
terms of offering thereof.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is June , 1994.
<PAGE>
AVAILABLE INFORMATION
Deere & Company is subject to the informational requirements of the
Securities Exchange Act of 1934 and in accordance therewith files reports and
other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements, and other information may be
inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549; 500 W. Madison
Street, Chicago, Illinois 60606; and Seven World Trade Center, New York, New
York 10048; and copies of such material may be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Washington, D.C.
20549 at prescribed rates. Reports, proxy statements and other information
concerning the Company may also be inspected at the offices of the New York
Stock Exchange, 20 Broad Street, New York, New York 10005.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by the Company with the Commission are
incorporated in this prospectus by reference:
1. Annual report on Form 10-K for the fiscal year ended October 31, 1993;
2. Quarterly reports on Form 10-Q for the quarters ended January 31, 1994
and April 30, 1994; and
3. Current reports on Form 8-K dated December 7, 1993, January 13, 1994,
February 22, 1994 and May 24, 1994.
All documents subsequently filed by the Company pursuant to sections 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934 prior to the
termination of any offering of the Securities made by this prospectus shall be
deemed to be incorporated by reference in this prospectus and to be a part of
this prospectus from the date of the filing of such documents. Any statement
contained herein or in a document incorporated or deemed to be incorporated by
reference herein shall be deemed to be modified or superseded for purposes of
this prospectus to the extent that a statement contained herein (or in the
accompanying prospectus supplement) or in any other subsequently filed document
which also is or is deemed to be incorporated by reference herein modifies or
replaces such statement. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this
prospectus.
The Company will provide without charge to each person to whom this
prospectus is delivered, on the written or oral request of such person, a copy
of any or all of the documents referred to above that have been or may be
incorporated by reference in this prospectus, other than exhibits to such
documents. Such written or oral request should be directed to Deere & Company,
John Deere Road, Moline, Illinois 61265-8098, Attention: Corporate Secretary
(309/765-8000).
2
<PAGE>
THE COMPANY
The Company and its subsidiaries (collectively called "John Deere")
manufacture, distribute and finance a full range of agricultural equipment; a
broad range of industrial equipment for construction, forestry and public works;
and a variety of lawn and grounds care equipment. The Company also provides
credit, health care and insurance products for businesses and the general
public. The Company believes that its worldwide sales of agricultural equipment
during recent years have been greater than those of any other business
enterprise. It also believes that John Deere is an important provider of most of
the types of industrial equipment that it markets, and a leader in some size
ranges. The Company also believes it is the largest manufacturer of lawn and
garden tractors and provides the broadest line of grounds care equipment in
North America. John Deere's operations are categorized into five business
segments:
The Company's worldwide AGRICULTURAL EQUIPMENT segment manufactures and
distributes a full range of equipment used in commercial farming--including
tractors; tillage, soil preparation, planting and harvesting machinery; and
crop handling equipment.
The Company's worldwide INDUSTRIAL EQUIPMENT segment manufactures and
distributes a broad range of machines used in construction, earthmoving and
forestry--including backhoe loaders; crawler dozers and loaders;
four-wheel-drive loaders; scrapers; motor graders; excavators; and log
skidders. This segment also includes the manufacture and distribution of
engines and drivetrain components for the original equipment manufacturers
(OEM) market.
The Company's worldwide LAWN AND GROUNDS CARE EQUIPMENT segment
manufactures and distributes equipment for commercial and residential
uses--including small tractors for lawn, garden and utility purposes; riding
and walk-behind mowers; golf course equipment; utility transport vehicles;
snowblowers; and other outdoor power products.
The products produced by the equipment segments are marketed primarily
through independent retail dealer networks.
The Company's CREDIT segment, which operates in the United States and
Canada, purchases and finances retail notes from John Deere's equipment
sales branches in the United States and Canada. The notes are acquired by
the sales branches through John Deere retail dealers and originate in
connection with retail sales by dealers of new John Deere equipment and used
equipment. The credit segment also purchases and finances retail notes
unrelated to John Deere, representing primarily recreational vehicle and
recreational marine product notes acquired from independent dealers of that
equipment and from marine mortgage service companies. The credit
subsidiaries also lease John Deere equipment to retail customers, finance
and service unsecured revolving charge accounts acquired from merchants in
the agricultural, lawn and grounds care and marine retail markets, and
provide wholesale financing for recreational vehicles and John Deere engine
inventories held by dealers of those products.
The Company's INSURANCE AND HEALTH CARE segment issues policies in the
United States and Canada primarily for: a general line of property and
casualty insurance to John Deere and non-Deere dealers and to the general
public; group life and group accident and health insurance for employees of
participating John Deere dealers; group life and group accident and health
insurance for employees of John Deere; life and annuity products to the
general public and credit physical damage insurance in connection with
certain retail sales of John Deere products financed by the credit
subsidiaries. This segment also provides health management programs and
related administrative services in the United States to corporate customers
and employees of John Deere.
The John Deere enterprise has manufactured agricultural machinery since
1837. The present Company was incorporated under the laws of Delaware in 1958.
The address of the Company's principal office is John Deere Road, Moline,
Illinois 61265-8098. Its telephone number is (309) 765-8000.
3
<PAGE>
RISK FACTORS RELATING TO CURRENCIES AND CURRENCY WARRANTS
Debt Securities denominated or payable in foreign Currencies and Currency
Warrants may entail significant risks. These risks include, without limitation,
the possibility of significant fluctuations in the foreign currency markets, the
imposition or modification of foreign exchange controls, potential illiquidity
in the secondary market and, in the case of Currency Warrants, the risk that
they will expire worthless. These risks will vary depending upon the Currency or
Currencies involved and, in the case of Currency Warrants, the particular form
of such Currency Warrants. These risks will be more fully described in the
prospectus supplement. See "Description of Debt Securities" and "Description of
Currency Warrants".
USE OF PROCEEDS
Except as may be described otherwise in a prospectus supplement, the net
proceeds from the sale of the Securities will be added to the general funds of
the Company and will be used for working capital and other general corporate
purposes. Such proceeds may be applied initially to the reduction of short-term
indebtedness.
DESCRIPTION OF DEBT SECURITIES
The Company may issue (either separately or together with other Offered
Securities) its Debt Securities from time to time. The Senior Securities will be
issued under an Indenture, as it may be supplemented from time to time (the
"Senior Indenture"), between the Company and The Chase Manhattan Bank (National
Association), Trustee (the "Senior Trustee"), and the Subordinated Securities
will be issued under an Indenture, as it may be supplemented from time to time
(the "Subordinated Indenture"), between the Company and The Bank of New York,
Trustee (the "Subordinated Trustee"). The term "Trustee" as used herein refers
to either the Senior Trustee or the Subordinated Trustee, as appropriate. The
forms of the Senior Indenture and the Subordinated Indenture (being sometimes
referred to herein collectively as the "Indentures" and individually as an
"Indenture") have been filed as exhibits to the registration statement. The
Indentures are subject to and governed by the Trust Indenture Act of 1939, as
amended ("TIA"). The following summary of certain provisions of the Indentures
does not purport to be complete and is subject to, and qualified in its entirety
by reference to, the Indentures, including the definitions of certain terms
therein. Parenthetical references below are to the Indentures or to the TIA, as
appropriate.
PROVISIONS APPLICABLE TO BOTH THE SENIOR AND SUBORDINATED INDENTURES
GENERAL
The Debt Securities will be unsecured obligations of the Company. The Senior
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of the Company. The Subordinated Securities will be subordinated in
right of payment to the prior payment in full of the Senior Indebtedness of the
Company as described under "Subordinated Indenture Provisions -- Subordination".
Each Indenture provides that any Debt Securities proposed to be sold
pursuant to this prospectus and the accompanying prospectus supplement ("Offered
Debt Securities") and any Debt Securities issuable upon the exercise of Debt
Warrants or upon conversion or exchange of other Offered Securities ("Under-
lying Debt Securities"), as well as other unsecured debt securities of the
Company, may be issued under such Indenture in one or more series, in each case
as authorized from time to time by the Company. The particular terms of the
Offered Debt Securities and any Underlying Debt Securities and any modifications
of or additions to the general terms of the Debt Securities as described herein
that may be applicable in the case of the Offered Debt Securities or Underlying
Debt Securities are described in the prospectus supplement. Accordingly, for a
description of the terms of any Offered Debt Securities and Underlying Debt
Securities reference must be made to both the prospectus supplement relating
thereto and the description of Debt Securities set forth in this prospectus.
4
<PAGE>
Reference is made to the prospectus supplement for the following terms of
the Offered Debt Securities, the Underlying Debt Securities or both, as the case
may be, being offered thereby:
(1) The title of such Debt Securities and whether such Debt Securities
will be Senior Securities or Subordinated Securities.
(2) The aggregate principal amount of such Debt Securities and any limit
on the aggregate principal amount of Debt Securities of such series.
(3) If other than the principal amount thereof, the portion of the
principal amount thereof payable upon declaration of acceleration of the
maturity thereof or the method by which such portion will be determined.
(4) The date or dates, or the method by which such date or dates will be
determined or extended, on which the principal of such Debt Securities will
be payable.
(5) The rate or rates at which such Debt Securities will bear interest,
if any, or the method by which such rate or rates will be determined, the
date or dates from which any interest will accrue or the method by which
such date or dates will be determined, the date or dates on which such
interest, if any, 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 any such date will be determined, and the basis
upon which interest will be calculated if other than that of a 360-day year
of twelve 30-day months.
(6) The period or periods within which, the price or prices at which,
the Currency or Currencies in which, and the other terms and conditions upon
which, such Debt Securities may be redeemed in whole or in part at the
option of the Company, if the Company is to have that option.
(7) The obligation, if any, of the Company to redeem, repay or purchase
such Debt Securities, in whole or in part, 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 the other terms and
conditions upon which, such Debt Securities will be so redeemed, repaid or
purchased.
(8) Whether such Debt Securities are to be issuable as Registered
Securities, Bearer Securities or both, any restrictions applicable to the
offer, sale or delivery of Bearer Securities and the terms, if any, 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 such Debt Securities will be issuable initially in
temporary global form, whether any such Debt Securities will 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 Debt 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 the applicable Indenture, and, if Registered Securities are to
be issuable as a global security, the identity of the depository for such
Debt Securities.
(9) If other than U.S. dollars, the Currency or Currencies in which
payments of the principal of (or premium, if any) or interest, if any, on
such Debt Securities will be made or in which such Debt Securities will be
denominated.
(10) Whether the amount of payments of principal of (or premium, if any)
or interest, if any, on such Debt Securities may be determined with
reference to an index, formula or other method (which index, formula or
method may be based on one or more Currencies, commodities, equity indices
or other indices) and the manner in which such amounts will be determined.
(11) Whether the Company or a holder may elect payment of the principal
of (or premium, if any) or interest, if any, on such Debt Securities in one
or more Currencies, other than that in which such Debt Securities are
denominated or stated to be payable, the period or periods within which, and
the
5
<PAGE>
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 Debt Securities are denominated or stated to be payable and
the Currency or Currencies in which such Debt Securities are to be so paid.
(12) The place or places, if any, other than or in addition to The City
of New York, where the principal of (and premium, if any) and interest, if
any, on such Debt Securities will be payable, where any Registered
Securities may be surrendered for registration of transfer, where such Debt
Securities may be surrendered for exchange, where Securities of a series
that are convertible or exchangeable may be surrendered for conversion or
exchange and where notices or demands to or upon the Company in respect of
such Debt Securities and the applicable Indenture may be served.
(13) The denomination or denominations in which such Debt Securities will
be issuable, if other than $1,000 or any integral multiple thereof in the
case of Registered Securities and $5,000 in the case of Bearer Securities.
(14) If other than the applicable Trustee, the identity of each Security
Registrar and/or Paying Agent.
(15) The date as of which any Bearer Securities of the series and any
temporary Debt Security issued in global form representing Outstanding
Securities of the series will be dated if other than the date of original
issuance of the first Debt Security of the series to be issued.
(16) The applicability, if at all, to such Debt Securities of the
provisions of Article Fourteen of the applicable Indenture described under
"Defeasance and Covenant Defeasance" and any provisions in modification of,
in addition to or in lieu of any of the provisions of such Article.
(17) The Person to whom any interest on any Registered Security of the
series will be payable, if other than the Person in whose name such
Registered 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 will 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 Debt Security issued in global form will be paid if other than in
the manner provided in the applicable Indenture.
(18) If such Debt Securities are to be issuable in definitive form
(whether upon original issue or upon exchange of a temporary Debt Security
of such series) only upon receipt of certain certificates or other documents
or satisfaction of other conditions, the form and/or terms of such
certificates, documents or conditions.
(19) Whether and under what circumstances the Company will pay Additional
Amounts, as contemplated by Section 1004 of the applicable Indenture on such
Debt Securities to any holder who is not a United States person (including
any modification to the definition of such term as contained in the
applicable Indenture as originally executed) in respect of any tax,
assessment or governmental charge and, if so, whether the Company will have
the option to redeem such Debt Securities rather than pay such Additional
Amounts (and the terms of any such option).
(20) The provisions, if any, granting special rights to the holders of
such Debt Securities upon the occurrence of such events as may be specified.
(21) Any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to such Debt Securities
(which Events of Default or covenants may not be consistent with the Events
of Default or covenants set forth in the general provisions of the
applicable Indenture).
(22) The designation of the initial Exchange Rate Agent, if any.
(23) Whether such Debt Securities will be convertible into or
exchangeable for shares of Common Stock of the Company or other Securities
and, if so, the terms and conditions upon which such Debt Securities will be
so convertible or exchangeable.
6
<PAGE>
(24) Any other terms of such Debt Securities.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant to the Securities being offered.
For purposes of this prospectus, any reference to the payment of principal
of (or premium, if any) or interest, if any, on such Debt Securities will be
deemed to include mention of the payment of any Additional Amounts required by
the terms of such Debt Securities.
Debt Securities may provide for less than the entire principal amount
thereof to be payable upon declaration of acceleration of the maturity thereof
("Original Issue Discount Securities"). Federal income tax and other
considerations pertaining to any such Original Issue Discount Securities will be
discussed in the applicable prospectus supplement.
Each Indenture provides that the Debt Securities referred to on the cover
page of this prospectus and additional unsecured debt securities of the Company
unlimited as to aggregate principal amount may be issued in one or more series
thereunder, in each case as authorized from time to time by the Board of
Directors of the Company. (Section 301 of each Indenture) The applicable Debt
Securities referred to on the cover page of this prospectus and any additional
debt securities issued under an Indenture are herein collectively referred to,
when a single Trustee is acting for all debt securities issued under such
Indenture, as the "Indenture Securities". Each Indenture also provides that
there may be more than one Trustee there-under, each with respect to one or more
different series of Indenture Securities. See also "Resignation of Trustee"
herein. At a time when two or more Trustees are acting under either Indenture,
each with respect to only certain series, the term "Indenture Securities", as
used herein, will mean the one or more series with respect to which each
respective Trustee is acting. In the event that there is more than one Trustee
under either Indenture, the powers and trust obligations of each Trustee as
described herein will extend only to the one or more series of Indenture
Securities for which it is Trustee. If two or more Trustees are acting under
either Indenture, then the Indenture Securities for which each Trustee is acting
would in effect be treated as if issued under separate indentures.
The general provisions of the Indentures do not contain any provisions that
would limit the ability of the Company to incur indebtedness or that would
afford holders of Debt Securities protection in the event of a highly leveraged
or similar transaction involving the Company. However, the general provisions of
the Senior Indenture do provide that neither the Company nor any Restricted
Subsidiary (as defined below) will subject certain of its property or assets to
any mortgage or other encumbrance unless the Indenture Securities issued
thereunder are secured equally and ratably with or prior to such other
indebtedness thereby secured. See "Senior Indenture Provisions -- Limitation on
Liens" and "Senior Indenture Provisions -- Limitation on Sale and Lease-back
Transactions" below. Reference is made to the prospectus supplement for
information with respect to any deletions from, modifications of or additions to
the Events of Default or covenants of the Company that are described below,
including any addition of a covenant or other provision providing event risk or
similar protection.
Under the Indentures, the Company has the ability to issue Indenture
Securities with terms different from those of Indenture Securities previously
issued thereunder and, without the consent of the holders thereof, to reopen a
previous issue of a series of Indenture Securities and issue additional
Indenture Securities of such series (unless such reopening was restricted when
such series was created), in an aggregate principal amount determined by the
Company. (Section 301 of each Indenture)
CONVERSION AND EXCHANGE
If any Debt Securities will, by their terms, be convertible into or
exchangeable for Common Stock or other Securities, the prospectus supplement
relating thereto will set forth the terms and conditions of such conversion or
exchange, including the conversion price or exchange ratio (or the method of
calculating the same), the conversion or exchange period (or the method of
determining the same), whether conversion or exchange will be mandatory or at
the option of the holder or the Company, provisions for adjustment of the
conversion price or the exchange ratio and provisions affecting conversion or
exchange in the event of the
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redemption of such Debt Securities. Such terms may also include provisions under
which the number of shares of Common Stock or the number or amount of other
Securities to be received by the holders of such Debt Securities upon such
conversion or exchange would be calculated according to the market price of the
Common Stock or such other Securities as of a time stated in the prospectus
supplement.
DENOMINATIONS, REGISTRATION AND TRANSFER
Debt Securities of a series may be issuable solely as Registered Securities,
solely as Bearer Securities or as both Registered Securities and Bearer
Securities. Unless otherwise provided in the prospectus supplement, Debt
Securities denominated in U.S. dollars (other than global securities, which may
be of any denomination) are issuable in denominations of $1,000 and integral
multiples of $1,000 (in the case of Registered Securities) and in the
denomination of $5,000 (in the case of Bearer Securities). The Indentures also
provide that Debt Securities of a series may be issuable in global form. See
"Book-Entry Debt Securities". Unless otherwise indicated in the prospectus
supplement, Bearer Securities will have interest coupons attached. (Section 201
of each Indenture)
Registered Securities will be exchangeable for other Registered Securities
of the same series. If (but only if) provided in the prospectus supplement,
Bearer Securities (with all unmatured coupons, except as provided below, and all
matured coupons which are in default) of any series may be similarly exchanged
for Registered Securities of the same series of any authorized denominations and
of a like aggregate principal amount and tenor. If so provided, Bearer
Securities surrendered in exchange for Registered Securities between a Regular
Record Date or a Special Record Date and the relevant date for payment of
interest will be surrendered without the coupon relating to such date for
payment of interest, and interest will not be payable 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 terms
of the applicable Indenture. Unless otherwise specified in the prospectus
supplement, Bearer Securities will not be issued in exchange for Registered
Securities. (Section 305 of each Indenture)
Registered Securities of a series may be presented for registration of
transfer and Debt Securities of a series may be presented for exchange (and, in
the case of convertible or exchangeable Debt Securities, for conversion into or
exchange for other Securities) (i) at each office or agency required to be
maintained by the Company for payment of such series, as described in "Payment
and Paying Agents", and (ii) at each other office or agency that the Company may
designate from time to time for such purposes. No service charge will be made
for any transfer or exchange of Debt Securities, but the Company may require
payment of any tax or other governmental charge payable in connection therewith.
(Section 305 of each Indenture)
The Company will not be required to (i) issue, register the transfer of or
exchange Debt Securities of any series during a period beginning at the opening
of business 15 days before any selection of Debt Securities of that series to be
redeemed and ending at the close of business on (A) if Debt Securities of the
series are issuable only as Registered Securities, the day of mailing of the
relevant notice of redemption and (B) if Debt Securities of the series are
issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if Debt Securities of the series are also issuable as
Registered Securities and there is no publication, the day of mailing of the
relevant notice of redemption; (ii) register the transfer of or exchange any
Registered Security, or portion thereof, called for redemption, except the
unredeemed portion of any Registered Security being redeemed in part; (iii)
exchange any Bearer Security called for redemption, except to exchange such
Bearer Security for a Registered Security of that series and like tenor that is
simultaneously surrendered for redemption; or (iv) issue, register the transfer
of or exchange any Debt Security which has been surrendered for repayment at the
option of the holder, except the portion, if any, of such Debt Security not to
be so repaid. (Section 305 of each Indenture)
PAYMENT AND PAYING AGENTS
Unless otherwise provided in the prospectus supplement, the Place of Payment
for a series issuable solely as Registered Securities will be The City of New
York, and the Company will initially designate the office of the Senior Trustee
and the corporate trust office of the Subordinated Trustee, respectively, for
this purpose. Notwithstanding the foregoing, at the option of the Company,
interest, if any, may be paid on Registered Securities (i) by check mailed to
the address of the Person entitled thereto as such Person's
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address appears in the Security Register or (ii) by wire transfer to an account
located in the United States maintained by the Person entitled thereto as
specified in the Security Register. (Sections 307, 1001 and 1002 of each
Indenture) Unless otherwise provided in the prospectus supplement, payment of
any installment of interest on Registered Securities will be made to the Person
in whose name such Registered Security is registered at the close of business on
the Regular Record Date for such interest. (Section 307 of each Indenture)
If Debt Securities of a series are issuable solely as Bearer Securities or
as both Registered Securities and Bearer Securities, unless otherwise provided
in the prospectus supplement, the Company will be required to maintain an office
or agency (i) outside the United States at which, subject to any applicable laws
and regulations, the principal of (and premium, if any) and interest, if any, on
such series will be payable and (ii) in The City of New York for payments with
respect to any Registered Securities of such series (and for payments with
respect to Bearer Securities of such series in the limited circumstances
described below, but not otherwise); provided that, if required in connection
with any listing of such Debt Securities on the Luxembourg Stock Exchange or any
other stock exchange located outside the United States, the Company will
maintain an office or agency for such Debt Securities in any city located
outside the United States required by such stock exchange. (Section 1002 of each
Indenture) The initial locations of such offices and agencies will be specified
in the prospectus supplement. Unless otherwise provided in the prospectus
supplement, principal of (and premium, if any) and interest, if any, on Bearer
Securities may be paid by wire transfer to an account maintained by the Person
entitled thereto with a bank located outside the United States. (Sections 307
and 1002 of each Indenture) Unless otherwise provided in the prospectus
supplement, payment of installments of interest on any Bearer Securities on or
before Maturity will be made only against surrender of coupons for such interest
installments as they severally mature. (Section 1001 of each Indenture) Unless
otherwise provided in the prospectus supplement, no payment with respect to any
Bearer Security will 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.
Notwithstanding the foregoing, payments of principal of (and premium, if any)
and interest, if any, on Bearer Securities payable in U.S. dollars will be made
at the office of the Company's Paying Agent in The City of New York if (but only
if) payment of the full amount thereof in U.S. dollars at all offices or
agencies outside the United States is illegal or effectively precluded by
exchange controls or other similar restrictions. (Section 1002 of each
Indenture)
The Company may from time to time designate additional offices or agencies,
approve a change in the location of any office or agency and, except as provided
above, rescind the designation of any office or agency.
Unless otherwise provided in the prospectus supplement, all payments of
principal of (and premium, if any) and interest, if any, on any Debt Security
that is payable in a Currency other than U.S. dollars will be made in U.S.
dollars in the event that such Currency (i) is a currency, and it ceases to be
used both by the government of the country that issued the currency and by a
central bank or other public institution of or within the international banking
community for the settlement of transactions, (ii) is the ECU, and it ceases to
be used both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) is any other currency unit (or composite currency) other than the ECU, and
it ceases to be used for the purposes for which it was established (each of the
events described in clauses (i) through (iii), a "Conversion Event"). (Section
312 of each Indenture)
EVENTS OF DEFAULT
Each Indenture provides, with respect to Debt Securities of a series
outstanding thereunder, that the following will constitute Events of Default:
(i) default in the payment of any interest upon any Debt Security of that
series, or of any coupon appertaining thereto, when the same becomes due and
payable, continued for 30 days; (ii) default in the payment of the principal of
(or premium, if any, on) any Debt Security of that series at its maturity; (iii)
default in the deposit of any sinking fund payment when due by the terms of any
Debt Security of that series; (iv) default in the performance, or breach, of any
covenant or agreement of the Company in the applicable Indenture with respect to
any Debt Security of that series, continued for 60 days
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after written notice to the Company; (v) certain events of bankruptcy,
insolvency or reorganization affecting the Company; and (vi) any other Event of
Default provided with respect to Debt Securities of that series. (Section 501 of
each Indenture) The Company is required to file with the applicable Trustee,
annually, an officer's certificate as to the Company's compliance with all
conditions and covenants under the applicable Indenture. (Section 1005 of each
Indenture) Each Indenture provides that the applicable Trustee may withhold
notice to the holders of Debt Securities of a series of any default (except
payment defaults on any Debt Securities of that series) if it considers it in
the interest of the holders of Debt Securities of such series to do so. (Section
601 of each Indenture)
If an Event of Default with respect to Debt Securities of a series has
occurred and is continuing, the applicable Trustee or the holders of not less
than 25% in principal amount of Outstanding Debt Securities of that series may
declare the principal amount (or, if any Debt Securities of that series are
Original Issue Discount Securities or Indexed Securities, such portion of the
principal amount as may be specified in the terms thereof) of all of the Debt
Securities of that series due and payable immediately. (Section 502 of each
Indenture)
Subject to the provisions of the applicable Indenture relating to the duties
of the Trustee thereunder, in case an Event of Default with respect to Debt
Securities of a series has occurred and is continuing, that Trustee is under no
obligation to exercise any of its rights or powers under such Indenture at the
request, order or direction of the applicable holders of Debt Securities of that
series, unless such holders have offered such Trustee reasonable indemnity
against the expenses and liabilities which might be incurred by it in compliance
with such request. (Section 507 of each Indenture and TIA Section 315) Subject
to such provisions for the indemnification of the applicable Trustee, the
holders of a majority in principal amount of the Outstanding Debt Securities of
such series will have the right to direct the time, method and place of
conducting any proceeding for any remedy available to such Trustee, or
exercising any trust or power conferred on such Trustee with respect to the Debt
Securities of that series. (Section 512 of each Indenture)
The holders of not less than a majority in principal amount of the
Outstanding Debt Securities of a series may, on behalf of the holders of all
Debt Securities of such series and any related coupons, waive any past default
under the applicable Indenture with respect to such series and its consequences,
except a default (i) in the payment of the principal of (or premium, if any) or
interest, if any, on any Debt Security of such series or any related coupons or
(ii) in respect of a covenant or provision that cannot be modified or amended
without the consent of the holder of each Outstanding Debt Security of such
series affected thereby. (Section 513 of each Indenture)
MERGER OR CONSOLIDATION
Each Indenture provides that the Company may 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 (i) either the Company
is the continuing corporation or (ii) such corporation or Person assumes by
supplemental indenture the due and punctual payment of the principal (and
premium, if any) and interest, if any, on the Indenture Securities issued
thereunder and the performance of every covenant thereunder and, in either case,
immediately after the transaction no default shall exist. In addition, under the
Senior Indenture, no such consolidation, merger or transfer may be made if as a
result thereof any property or assets of the Company or a Restricted Subsidiary
would become subject to any mortgage or other encumbrance, unless either (i)
such mortgage or other encumbrance could be created pursuant to Section 1006 of
such Indenture (see "Senior Indenture Provisions -- Limitation on Liens")
without equally and ratably securing the Indenture Securities issued under such
Indenture or (ii) such Indenture Securities are secured equally and ratably with
or prior to the debt secured by such mortgage or other encumbrance. (Section 801
of each Indenture)
MODIFICATION OR WAIVER
Modification and amendment of an Indenture may be made by the Company and
the Trustee thereunder with the consent of the holders of not less than a
majority in principal amount of all Outstanding Indenture Securities issued
thereunder that are affected by such modification or amendment; provided that
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no such modification or amendment may, without the consent of the holder of each
Outstanding Indenture Security affected thereby, among other things: (i) change
the Stated Maturity of the principal of (or premium, if any, on) or any
installment of principal of or interest on any such Indenture Security; (ii)
reduce the principal amount of, the rate of interest on or any Additional
Amounts payable in respect of, or any premium payable upon the redemption of,
any such Indenture Security; (iii) change any obligation of the Company to pay
Additional Amounts in respect of any such Indenture Security; (iv) 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 or provable in bankruptcy; (v) adversely affect any right of
repayment at the option of the holder of any such Indenture Security; (vi)
change the place or Currency of payment of principal of, or any premium or
interest on, any such Indenture Security; (vii) impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity
thereof or on or after any Redemption Date or Repayment Date therefor; (viii)
adversely affect any right to convert or exchange any such Indenture Security as
may be provided pursuant to such Indenture; (ix) reduce the percentage in
principal amount of such Outstanding Indenture Securities (or of such
Outstanding Indenture Securities of any series, as the case may be), the consent
of whose holders is required to amend or waive compliance with certain
provisions of such Indenture or to waive certain defaults thereunder; (x) reduce
the requirements for voting or quorum described below; or (xi) modify any of the
provisions relating to supplemental indentures requiring the consent of holders,
relating to the waiver of past defaults or relating to the waiver of certain
covenants, except to increase the percentage of such Outstanding Indenture
Securities required for such actions or to provide that certain other provisions
of such Indenture cannot be modified or waived without the consent of the holder
of each Outstanding Indenture Security affected thereby. (Section 902 of each
Indenture)
In addition, under the Subordinated Indenture, no modification or amendment
thereof may, without the consent of the holder of each Outstanding Subordinated
Security affected thereby, modify any of the provisions of such Indenture
relating to the subordination of the Subordinated Securities in a manner adverse
to the holders thereof and no such modification or amendment may adversely
affect the rights of any holder of Senior Indebtedness under Article Sixteen of
such Indenture (described under the caption "Subordinated Indenture Provisions
- -- Subordination") without the consent of such holder of Senior Indebtedness.
(Sections 902 and 907 of the Subordinated Indenture)
The holders of a majority in aggregate principal amount of Outstanding
Indenture Securities have the right to waive compliance by the Company with
certain covenants in the applicable Indenture. (Section 1008 of the Senior
Indenture and Section 1006 of the Subordinated Indenture)
Modification and amendment of an Indenture may be made by the Company and
the Trustee thereunder without the consent of any holder for any of the
following purposes: (i) to evidence the succession of another Person to the
Company as obligor under such Indenture; (ii) to add to the covenants of the
Company for the benefit of the holders of all or any series of Indenture
Securities issued thereunder and any related coupons or to surrender any right
or power conferred upon the Company thereunder; (iii) to add Events of Default
for the benefit of the holders of all or any series of Indenture Securities;
(iv) to add or change any provisions of such Indenture to facilitate the
issuance of, or to liberalize certain terms of, Bearer Securities, or to permit
or facilitate the issuance of Indenture Securities in uncertificated form,
provided that any such actions do not adversely affect the holders of such
Indenture Securities or any related coupons; (v) to change or eliminate any
provisions of such Indenture, provided that any such change or elimination will
become effective only when there are no such Indenture Securities Outstanding of
any series created prior thereto which are entitled to the benefit of such
provisions; (vi) in the case of the Senior Securities, to secure the Indenture
Securities under the Senior Indenture pursuant to the requirements of Section
801 or Section 1006 of the Senior Indenture, or otherwise; (vii) to establish
the form or terms of Indenture Securities of any series and any related coupons,
including any provisions and procedures relating to conversion or exchange;
(viii) to provide for the acceptance of appointment by a successor Trustee or
facilitate the administration of the trusts under such Indenture by more than
one Trustee; (ix) to cure any ambiguity, defect or inconsistency in such
Indenture, provided such action does not adversely affect the interests of
holders of Indenture Securities of a series issued thereunder or any related
coupons in any
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material respect; or (x) to supplement any of the provisions of such Indenture
to the extent necessary to permit or facilitate defeasance and discharge of any
series of Indenture Securities thereunder, provided that such action shall not
adversely affect the interests of the holders of any such Indenture Securities
and any related coupons or of any other series of Indenture Securities in any
material respect. (Section 901 of each Indenture)
In determining whether the holders of the requisite principal amount of
Outstanding Indenture Securities have given any request, demand, authorization,
direction, notice, consent or waiver under either Indenture or whether a quorum
is present at a meeting of holders of Indenture Securities thereunder, (i) the
principal amount of an Original Issue Discount Security that will be deemed to
be outstanding will be the amount of the principal thereof that would be due and
payable as of the date of such determination upon acceleration of the Maturity
thereof, (ii) the principal amount of an Indenture Security denominated in a
foreign Currency or Currencies will be the U.S. dollar equivalent, determined on
the trade date for such Indenture Security, of the principal amount thereof (or,
in the case of an Original Issue Discount Security or Indexed Security, the U.S.
dollar equivalent on the trade date of such Indenture Security of the amount
determined as provided in (i) above or (iii) below), (iii) the principal amount
of an Indexed Security that may be counted in making such determination or
calculation and that will be deemed outstanding for such purpose will be equal
to the principal face amount of such Indexed Security at original issuance,
unless otherwise provided with respect to such Indexed Security pursuant to
Section 301 of such Indenture and (iv) Indenture Securities owned by the Company
or any other obligor upon the Indenture Securities or any Affiliate of the
Company or of such other obligor will be disregarded. (Section 101 of each
Indenture)
Each Indenture contains provisions for convening meetings of the holders of
Indenture Securities of a series if Indenture Securities of that series are
issuable as Bearer Securities. (Section 1501 of each Indenture) A meeting may be
called at any time by the applicable Trustee, and also, upon request, by the
Company or the holders of at least 10% in principal amount of the Outstanding
Indenture Securities of that series, in any such case upon notice given as
provided in the applicable Indenture. (Section 1502 of each Indenture) Except
for any consent that must be given by the holder of each Indenture Security
affected thereby, as described above, any resolution presented at a meeting (or
an adjourned meeting duly reconvened) at which a quorum is present may be
adopted by the affirmative vote of the holders of a majority in principal amount
of the Outstanding Indenture Securities of that series; provided, however, that
any resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action that 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 Indenture Securities of a series, may be adopted at a
meeting (or an adjourned meeting duly reconvened) at which a quorum is present
by the affirmative vote of the holders of such specified percentage in principal
amount of the Outstanding Indenture Securities of that series. Any resolution
passed or decision taken at any meeting of holders of Indenture Securities of a
series duly held in accordance with that Indenture will be binding on all
holders of Indenture Securities of that series and any related coupons. The
quorum at any meeting called to adopt a resolution will be persons holding or
representing a majority in principal amount of the Outstanding Indenture
Securities of a series; provided, however, that, if any action is to be taken at
such meeting with respect to a consent or waiver which may be given by the
holders of not less than a specified percentage in principal amount of the
Outstanding Indenture Securities of a series, the persons holding or
representing such specified percentage in principal amount of the Outstanding
Indenture Securities of that series will constitute a quorum. (Section 1504 of
each Indenture)
Notwithstanding the foregoing provisions, if any action is to be taken at a
meeting of holders of Indenture Securities of a series with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that the applicable Indenture expressly provides may be made, given or
taken by the holders of a specified percentage in principal amount of all
Outstanding Indenture 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
Indenture Securities of such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or
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other action will 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 such Indenture. (Section 1504 of each Indenture)
SATISFACTION AND DISCHARGE; DEFEASANCE AND COVENANT DEFEASANCE
The Company may discharge certain obligations to holders of Debt Securities
of a series that have not already been delivered to the applicable Trustee for
cancellation and that either have become due and payable or are by their terms
due and payable within one year (or scheduled for redemption within one year) by
irrevocably depositing with the applicable Trustee, in trust, funds in an amount
sufficient to pay the entire indebtedness on such Debt Securities for principal
(and premium, if any) and interest, if any, with respect thereto, to the date of
such deposit (if such Debt Securities have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be. (Section 401 of each
Indenture)
Each Indenture provides that, if the provisions of Article Fourteen are made
applicable to the Debt Securities of or within a series and any related coupons
pursuant to Section 301 thereunder, the Company may elect either (i) to defease
and be discharged from any and all obligations with respect to such Debt
Securities and coupons (except for the obligations to pay Additional Amounts, if
any; to register the transfer or exchange of such Debt Securities and coupons;
to replace temporary or mutilated, destroyed, lost or stolen Debt Securities and
coupons; to maintain one or more offices or agencies in respect of such Debt
Securities and coupons; and to hold moneys for payment in trust) ("defeasance")
or (ii) to be released (a) in the case of any such Debt Securities that are
Senior Securities, from its obligations under Sections 1006 and 1007 of such
Indenture (being the restrictions described under "Senior Indenture Provisions
- -- Limitation on Liens" and "Senior Indenture Provisions -- Limitation on Sale
and Leaseback Transactions") or (b) in the case of any such Debt Securities
(whether they are Senior or Subordinated Securities), if so provided in the
prospectus supplement, from its obligations with respect to any other covenant
relating to such Debt Securities and, in the case of either (a) or (b) above,
any omission to comply with such obligations will not constitute a default or an
Event of Default with respect to such Debt Securities and coupons ("covenant
defeasance"), in either case upon the irrevocable deposit by the Company with
the applicable Trustee (or other qualifying trustee), in trust, of (1) an
amount, in the Currency or Currencies in which such Debt Securities and coupons
are then specified as payable at Stated Maturity, (2) Government Obligations (as
defined below) applicable to such Debt Securities and coupons (with such
applicability being determined on the basis of the Currency in which such Debt
Securities are then specified as payable at Stated Maturity) that, through the
payment of principal and interest in accordance with their terms, will provide
money in an amount, or (3) a combination thereof in an amount, sufficient to pay
the principal of (and premium, if any) and interest, if any, on such Debt
Securities and coupons, and any mandatory sinking fund or analogous payments
thereon, on the scheduled due dates therefor.
Such a trust may only be established if, among other things, the Company has
delivered to the applicable Trustee an Opinion of Counsel (as specified in the
applicable Indenture) to the effect that the holders of such Debt Securities and
related coupons to be defeased will not recognize income, gain or loss for
United States federal income tax purposes as a result of such defeasance or
covenant defeasance and will be subject to United States 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 or covenant defeasance had not occurred, and such
Opinion of Counsel, in the case of defeasance under clause (i) above, must refer
to and be based upon a ruling of the Internal Revenue Service or a change in
applicable United States federal income tax law occurring after the date of the
applicable Indenture. (Article Fourteen of each Indenture)
"Government Obligations" means securities which are (i) direct obligations
of the United States or the government which issued the foreign Currency in
which the Debt Securities of that 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
or the government which issued such foreign Currency, as the case may be, the
payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States or such other government, which, in either case,
are not callable or redeemable at the option of the issuer thereof. Such term
also includes a depository receipt issued by a bank
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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 the amount received by such 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. (Section 101 of each Indenture)
Unless otherwise provided in the prospectus supplement, if, after the
Company has deposited funds, Government Obligations or both to effect defeasance
or covenant defeasance with respect to Debt Securities of a series, (i) the
holder of a Debt Security of such series is entitled to, and does, elect
pursuant to the terms of such Debt Security to receive payment in a Currency
other than that in which such deposit has been made in respect of such Debt
Security or (ii) a Conversion Event occurs, then the indebtedness represented by
such Debt Security will 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 Debt Security as they become due out of the proceeds
yielded by converting the amount so deposited in respect of such Debt Security
into the Currency in which such Debt Security becomes payable as a result of
such election or such Conversion Event based on the applicable Market Exchange
Rate. (Section 1405 of each Indenture) Unless otherwise provided in the
prospectus supplement, all payments of principal of (and premium, if any) and
interest, if any, on any Debt Security that is payable in a foreign Currency
with respect to which a Conversion Event occurs shall be made in U.S. dollars.
(Section 312 of each Indenture)
In the event the Company effects covenant defeasance with respect to any
Debt Securities and any related coupons and such Debt Securities and coupons are
declared due and payable because of the occurrence of any Event of Default other
than the Event of Default described in clause (iv) under "Events of Default"
with respect to Sections 1006 and 1007 of the Senior Indenture (which Sections
would no longer be applicable to such Debt Securities or related coupons) or
described in clause (iv) or (vi) under "Events of Default" with respect to any
other covenant with respect to which there has been defeasance, the amount of
Government Obligations and funds on deposit with the applicable Trustee will be
sufficient to pay amounts due on such Debt Securities and coupons at the time of
their Stated Maturity but may not be sufficient to pay amounts due on such Debt
Securities and coupons at the time of the acceleration resulting from such Event
of Default. In such a case, the Company would remain liable to make payment of
such amounts due at the time of acceleration.
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If the Trustee or any Paying Agent is unable to apply any money in
accordance with the applicable Indenture by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, then the Company's obligations under such
Indenture and such Debt Securities and coupons shall be revived and reinstated
as though no deposit had occurred pursuant to such Indenture, until such time as
such Trustee or Paying Agent is permitted to apply all such money in accordance
with such Indenture; provided, however, that, if the Company makes any payment
of principal of (or premium, if any) or interest, if any, on any such Debt
Security or coupon following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the holders of such Debt Securities and
coupons to receive such payment from the money held by such Trustee or Paying
Agent.
The prospectus supplement may further describe the provisions, if any,
permitting such defeasance or covenant defeasance, including any modifications
to the provisions described above, with respect to the Debt Securities of or
within a particular series and any related coupons.
BOOK-ENTRY DEBT SECURITIES
Debt Securities of a series may be issued in whole or in part in global form
that will be deposited with, or on behalf of, a depository identified in the
prospectus supplement. Global securities may be issued in either registered or
bearer form and in either temporary or permanent form (each a "Global
Security"). Unless otherwise provided in the prospectus supplement, Debt
Securities that are represented by a Global Security will be issued in
denominations of $1,000 and any integral multiple thereof, and will be issued in
registered form only, without coupons. Payments of principal of (and premium, if
any) and interest, if any, on Debt Securities represented by a Global Security
will be made by the Company to the applicable Trustee and then by such Trustee
to the depository.
The Company anticipates that any Global Securities will be deposited with,
or on behalf of, The Depository Trust Company ("DTC"), New York, New York, that
such Global Securities will be registered in the name of DTC's nominee, and that
the following provisions will apply to the depository arrangements with respect
to any such Global Securities. Additional or differing terms of the depository
arrangements will be described in the prospectus supplement.
So long as DTC or its nominee is the registered owner of a Global Security,
DTC or its nominee, as the case may be, will be considered the sole holder of
the Debt Securities represented by such Global Security for all purposes under
the applicable Indenture. Except as provided below, owners of beneficial
interests in a Global Security will not be entitled to have Debt Securities
represented by such Global Security registered in their names, will not receive
or be entitled to receive physical delivery of Debt Securities in certificated
form and will not be considered the owners or holders thereof under the
applicable Indenture. The laws of some states require that certain purchasers of
securities take physical delivery of such securities in certificated form;
accordingly, such laws may limit the transferability of beneficial interests in
a Global Security.
If (i) DTC is at any time unwilling or unable to continue as depository and
a successor depository is not appointed by the Company within 90 days following
notice to the Company, (ii) the Company determines, in its sole discretion, not
to have any Debt Securities represented by one or more Global Securities, or
(iii) an Event of Default under the applicable Indenture has occurred and is
continuing, then the Company will issue individual Debt Securities in
certificated form in exchange for beneficial interests in such Global
Securities. In any such instance, an owner of a beneficial interest in a Global
Security will be entitled to physical delivery of individual Debt Securities in
certificated form of like tenor and rank, equal in principal amount to such
beneficial interest and to have such Debt Securities in certificated form
registered in its name. Unless otherwise provided in the prospectus supplement,
Debt Securities so issued in certificated form will be issued in denominations
of $1,000 or any integral multiple thereof, and will be issued in registered
form only, without coupons.
The following is based on information furnished by DTC:
DTC will act as securities depository for the Debt Securities. The Debt
Securities will be issued as fully registered securities registered in the
name of Cede & Co. (DTC's partnership nominee). One
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fully registered Debt Security certificate is issued with respect to each
$150 million of principal amount of the Debt Securities of a series, and an
additional certificate will be issued with respect to any remaining
principal amount of such series.
DTC is a limited-purpose trust company organized under the New York
Banking Law, a "banking organization" within the meaning of the New York
Banking Law, a member of the Federal Reserve System, a "clearing
corporation" within the meaning of the New York Uniform Commercial Code, and
a "clearing agency" registered pursuant to the provisions of Section 17A of
the Securities Exchange Act of 1934. DTC holds securities that its
participants ("Participants") deposit with DTC. DTC also facilitates the
settlement among Participants of securities transactions, such as transfers
and pledges, in deposited securities through electronic computerized
book-entry changes in Participants' accounts, thereby eliminating the need
for physical movement of securities certificates. Direct Participants
include securities brokers and dealers, banks, trust companies, clearing
corporations and certain other organizations ("Direct Participants"). DTC is
owned by a number of its Direct Participants and by the New York Stock
Exchange, Inc., the American Stock Exchange, Inc. and the National
Association of Securities Dealers, Inc. Access to the DTC system is also
available to others such as securities brokers and dealers, banks and trust
companies that clear through or maintain a custodial relationship with a
Direct Participant, either directly or indirectly ("Indirect Participants").
The rules applicable to DTC and its Participants are on file with the
Commission.
Purchases of Debt Securities under the DTC system must be made by or
through Direct Participants, which will receive a credit for the Debt
Securities on DTC's records. The ownership interest of each actual purchaser
of each Debt Security ("Beneficial Owner") is in turn recorded on the Direct
and Indirect Participants' records. A Beneficial Owner does not receive
written confirmation from DTC of its purchase, but such Beneficial Owner is
expected to receive a written confirmation providing details of the
transaction, as well as periodic statements of its holdings, from the Direct
or Indirect Participant through which such Beneficial Owner entered into the
transaction. Transfers of ownership interests in Debt Securities are
accomplished by entries made on the books of Participants acting on behalf
of Beneficial Owners. Beneficial Owners do not receive certificates
representing their ownership interests in Debt Securities, except in the
event that use of the book-entry system for the Debt Securities is
discontinued.
To facilitate subsequent transfers, the Debt Securities are registered
in the name of DTC's partnership nominee, Cede & Co. The deposit of the Debt
Securities with DTC and their registration in the name of Cede & Co. effects
no change in beneficial ownership. DTC has no knowledge of the actual
Beneficial Owners of the Debt Securities; DTC records reflect only the
identity of the Direct Participants to whose accounts Debt Securities are
credited, which may or may not be the Beneficial Owners. The Participants
remain responsible for keeping account of their holdings on behalf of their
customers.
Delivery of notices and other communications by DTC to Direct
Participants, by Direct Participants to Indirect Participants, and by Direct
Participants and Indirect Participants to Beneficial Owners are governed by
arrangements among them, subject to any statutory or regulatory requirements
as may be in effect from time to time.
Redemption notices shall be sent to Cede & Co. If less than all of the
Securities within an issue are being redeemed, DTC's practice is to
determine by lot the amount of the interest of each Direct Participant in
such issue to be redeemed.
Neither DTC nor Cede & Co. will consent or vote with respect to the Debt
Securities. Under its usual procedures, DTC mails a proxy (an "Omnibus
Proxy") to the issuer as soon as possible after the record date. The Omnibus
Proxy assigns Cede & Co.'s consenting or voting rights to those Direct
Participants to whose accounts the Debt Securities are credited on the
record date (identified on a list attached to the Omnibus Proxy).
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Payment of principal (and premium, if any) and interest, if any, on the
Debt Securities will be made to DTC. DTC's practice is to credit Direct
Participants' accounts on the payable date in accordance with their
respective holdings as shown on DTC's records unless DTC has reason to
believe that it will not receive payment on the payable date. Payments by
Participants to Beneficial Owners will be governed by standing instructions
and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in "street name", and
will be the responsibility of such Participant and not of DTC, the Paying
Agent or the Company, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal (and premium, if
any) and interest to DTC is the responsibility of the Company or the Paying
Agent, disbursement of such payments to Direct Participants is the
responsibility of DTC, and disbursement of such payments to the Beneficial
Owners is the responsibility of Direct and Indirect Participants.
DTC may discontinue providing its services as securities depository with
respect to the Debt Securities at any time by giving reasonable notice to
the Company or the Paying Agent. Under such circumstances, in the event that
a successor securities depository is not appointed, Debt Security
certificates are required to be printed and delivered.
The Company may decide to discontinue use of the system of book-entry
transfers through DTC (or a successor securities depository). In that event,
Debt Security certificates will be printed and delivered.
The information in this section concerning DTC and DTC's book-entry system
has been obtained from sources (including DTC) that the Company believes to be
reliable, but the Company takes no responsibility for the accuracy thereof.
Unless stated otherwise in the prospectus supplement, the underwriters or
agents with respect to a series of Debt Securities issued as Global Securities
will be Direct Participants in DTC.
None of the Company, any underwriter or agent, the applicable Trustee or any
applicable Paying Agent will have any responsibility or liability for any aspect
of the records relating to, or payments made on account of beneficial interests
in a Global Security, or for maintaining, supervising or reviewing any records
relating to such beneficial interests.
RESIGNATION OF TRUSTEE
Each Trustee may resign or be removed with respect to one or more series of
Indenture Securities and a successor Trustee may be appointed to act with
respect to such series. (Section 608 of each Indenture) In the event that two or
more persons are acting as Trustee with respect to different series of Indenture
Securities under one of the Indentures, each such Trustee will be a Trustee of a
trust thereunder separate and apart from the trust administered by any other
such Trustee (Section 609 of each Indenture), and any action described herein to
be taken by the "Trustee" may then be taken by each such Trustee with respect
to, and only with respect to, the one or more series of Indenture Securities for
which it is Trustee.
SENIOR INDENTURE PROVISIONS
LIMITATION ON LIENS
The Company covenants in the Senior Indenture that it will not, nor will it
permit any Restricted Subsidiary to, incur, assume or guarantee any debt (herein
referred to as "Debt") if such Debt is secured by any mortgage, security
interest, pledge, lien or other encumbrance (herein referred to as "mortgage" or
"mortgages") upon any Important Property (as defined below) of the Company or
any Restricted Subsidiary or any shares of stock or indebtedness of any
Restricted Subsidiary, whether owned at the date of such Indenture or thereafter
acquired, without effectively securing the Indenture Securities issued under the
Senior Indenture equally and ratably with or prior to such Debt. The foregoing
restriction will not apply to: (i) mortgages on any property acquired,
constructed or improved after the date of such Indenture which are created or
assumed within 120 days after such acquisition, construction or improvement to
secure or provide for the payment of the purchase price or cost thereof incurred
after the date of such Indenture, or existing mortgages on property acquired
after the date of such Indenture, provided that such mortgages do not apply
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to any Important Property theretofore owned by the Company or a Restricted
Subsidiary other than theretofore unimproved real property; (ii) existing
mortgages on any property acquired from a corporation consolidated with or
merged into, or substantially all of the assets of which are acquired by, the
Company or a Restricted Subsidiary; (iii) mortgages on property of any
corporation existing at the time it becomes a Restricted Subsidiary; (iv)
mortgages securing Debt owed by a Restricted Subsidiary to the Company or to
another Restricted Subsidiary; (v) mortgages in favor of governmental bodies to
secure advance or other payments pursuant to any contract or statute or to
secure indebtedness incurred to finance the purchase price or cost of
constructing or improving the property subject to such mortgages, including
mortgages to secure tax exempt pollution control revenue bonds; (vi) sales of
receivables that are reflected as secured indebtedness; (vii) certain other
liens not related to the borrowing of money; (viii) extensions, renewals or
replacements of the foregoing; (ix) mortgages on margin stock owned by the
Company and Restricted Subsidiaries to the extent such margin stock exceeds 25%
of the fair market value of Important Property of the Company and the Restricted
Subsidiaries plus certain stock and indebtedness of the Restricted Subsidiaries;
and (x) mortgages on Important Property of, or any shares of stock or
indebtedness issued or incurred by, any Restricted Subsidiary organized under
the laws of Canada. (Section 1006 of the Senior Indenture)
The foregoing restrictions do not apply to the incurrence, assumption or
guarantee by the Company or any Restricted Subsidiary of Debt secured by a
mortgage that would otherwise be subject to such restrictions up to an aggregate
amount which, together with all other Debt secured by mortgages (not including
secured Debt permitted under the foregoing exceptions) and the Attributable Debt
(generally defined as the discounted present value of net rental payments)
associated with Sale and Lease-back Transactions existing at such time (other
than Sale and Lease-back Transactions the proceeds of which have been or will be
applied as set forth in clause (iii) or (iv) under "Limitation on Sale and
Lease-back Transactions" below, and other than Sale and Lease-back Transactions
in which the property involved would have been permitted to be mortgaged under
clause (i) above), does not exceed 5% of Consolidated Net Tangible Assets of the
Company and its consolidated subsidiaries, as shown on the audited consolidated
balance sheet contained in the latest annual report to stockholders of the
Company. (Section 1006 of the Senior Indenture)
The term "Restricted Subsidiary" is defined in the Senior Indenture to mean
any subsidiary (i) engaged in, or whose principal assets consist of property
used by the Company or any Restricted Subsidiary in, the manufacture of products
within the United States or Canada or in the sale of products principally to
customers located in the United States or Canada except any corporation which is
a retail dealer in which the Company has, directly or indirectly, an investment
under an arrangement providing for the liquidation of such investment; or (ii)
which the Company shall designate as a Restricted Subsidiary. (Section 1006 of
the Senior Indenture)
The term "Important Property" is defined in the Senior Indenture to include:
(i) any manufacturing plant, including its machinery and equipment, used by the
Company or a Restricted Subsidiary primarily for the manufacture of products to
be sold by the Company or such Restricted Subsidiary; (ii) the executive office
and administrative building of the Company in Moline, Illinois; and (iii)
research and development facilities; except, in each case, property the fair
value of which as determined by the Board of Directors does not at the time
exceed 1% of Consolidated Net Tangible Assets of the Company and its
consolidated subsidiaries, as shown on the audited consolidated balance sheet
contained in the latest annual report to stockholders of the Company. (Section
1006 of the Senior Indenture)
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS
The Company covenants in the Senior Indenture that it will not nor will it
permit any Restricted Subsidiary to enter into any arrangement with any Person
providing for the leasing to the Company or any Restricted Subsidiary of any
Important Property (except for temporary leases for a term, including renewals,
of not more than three years) which has been or is to be sold by the Company or
such Restricted Subsidiary to such Person unless the net proceeds are at least
equal to the fair value (as determined by the Board of Directors) of such
property and either (i) the Company or such Restricted Subsidiary would be
entitled to incur Debt secured by a mortgage on such Important Property without
securing the Indenture Securities issued under the Senior Indenture under clause
(i) of the first paragraph under "Limitation on Liens" above;
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(ii) the Attributable Debt associated therewith would be an amount permitted
under the second paragraph under "Limitation on Liens" above; (iii) the Company
applies an amount equal to the fair value of such Important Property to the
retirement of Indenture Securities or certain long-term indebtedness of the
Company or a Restricted Subsidiary, as the case may be; or (iv) the Company
enters into a BONA FIDE commitment to expend for the acquisition or improvement
of an Important Property an amount at least equal to the fair value of such
property. (Section 1007 of the Senior Indenture)
SUBORDINATED INDENTURE PROVISIONS
SUBORDINATION
Upon any distribution of assets of the Company upon any dissolution, winding
up, liquidation or reorganization, the payment of the principal of (and premium,
if any) and interest, if any, on Subordinated Securities is to be subordinated
to the extent provided in the Subordinated Indenture in right of payment to the
prior payment in full of all Senior Indebtedness (Sections 1601 and 1602 of the
Subordinated Indenture), but the obligation of the Company to make payment of
principal (and premium, if any) or interest, if any, on Subordinated Securities
will not otherwise be affected. (Section 1604 of the Subordinated Indenture). In
addition, no payment on account of principal (and premium, if any), sinking fund
or interest, if any, may be made on the Subordinated Securities unless full
payment of all amounts then due in respect of the principal (and premium, if
any), sinking fund and interest on Senior Indebtedness has been made or duly
provided for in money or money's worth. (Section 1603 of the Subordinated
Indenture) In the event that, notwithstanding the foregoing, any such payment by
the Company is received by the Subordinated Trustee or the holders of any of the
Subordinated Securities before all Senior Indebtedness is paid in full, such
payment or distribution will be paid over to the holders of such Senior
Indebtedness or on their behalf for application to the payment of all such
Senior Indebtedness remaining unpaid until all such Senior Indebtedness has 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 upon such distribution of assets of the Company, the holders
of the Subordinated Securities will be subrogated to the rights of the holders
of the Senior Indebtedness to the extent of payments made to the holders of such
Senior Indebtedness out of the distributive share of the Subordinated
Securities. (Section 1602 of the Subordinated Indenture) By reason of such
subordination, in the event of a distribution of assets upon insolvency, certain
general creditors of the Company may recover more, ratably, than holders of the
Subordinated Securities. The Subordinated Indenture provides that the
subordination provisions thereof will not apply to money and securities held in
trust pursuant to the defeasance provisions of the Subordinated Indenture.
(Section 1402 of the Subordinated Indenture)
Senior Indebtedness is defined in the Subordinated Indenture as the
principal of (and premium, if any) and unpaid interest on (i) indebtedness of
the Company (including indebtedness of others guaranteed by the Company),
whether outstanding on the date of the Subordinated Indenture or thereafter
created, incurred, assumed or guaranteed, for money borrowed (other than the
Indenture Securities issued under the Subordinated Indenture and the 5 1/2%
Convertible Subordinated Debentures due 2001), 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 Subordinated Securities and (ii) renewals, extensions, modifications and
refundings of any such indebtedness. (Section 101 of the Subordinated Indenture)
If this prospectus is being delivered in connection with the offering of a
series of Subordinated Securities, the accompanying prospectus supplement or the
information incorporated by reference will set forth the approximate amount of
Senior Indebtedness outstanding as of a recent date.
THE TRUSTEES UNDER THE INDENTURES
The Chase Manhattan Bank (National Association) and The Bank of New York are
two of a number of banks with which the Company maintains ordinary banking
relationships and from which the Company has obtained credit facilities and
lines of credit. The Chase Manhattan Bank (National Association) and The
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Bank of New York each also serves as trustee under other indentures covering
unsecured senior debt securities of the Company. The Bank of New York also
serves as trustee under indentures under which a subsidiary of the Company is
the obligor.
DESCRIPTION OF DEBT WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Debt Warrants to purchase Underlying Debt Securities (the "Offered
Debt Warrants"). Such Debt Warrants will be issued under warrant agreements
(each a "Debt Warrant Agreement") to be entered into between the Company and a
bank or trust company, as warrant agent (the "Debt Warrant Agent"), all as shall
be set forth in the prospectus supplement. A copy of the form of Debt Warrant
Agreement has been filed as an exhibit to the registration statement. The
following summary of certain provisions of the Debt Warrant Agreement does not
purport to be complete and is subject to, and qualified in its entirety by
reference to, all the provisions of the Debt Warrant Agreement including the
definitions of certain terms.
GENERAL
Reference is made to the prospectus supplement for the terms of the Offered
Debt Warrants, including the following:
(1) The title and aggregate number of such Debt Warrants.
(2) The title, rank, aggregate principal amount and terms of the
Underlying Debt Securities purchasable upon exercise of such Debt Warrants.
(3) The principal amount of Underlying Debt Securities that may be
purchased upon exercise of each such Debt Warrant, and the price, or the
manner of determining the price, at which such principal amount may be
purchased upon such exercise.
(4) The time or times at which, or period or periods in which, such Debt
Warrants may be exercised and the expiration date of such Debt Warrants.
(5) The terms of any right of the Company to redeem such Debt Warrants.
(6) Whether certificates evidencing such Debt Warrants ("Debt Warrant
Certificates") will be issued in registered or bearer form, and, if
registered, where they may be transferred and exchanged.
(7) Whether such Debt Warrants are to be issued with any Debt Securities
or any other Securities.
(8) The date, if any, on and after which such Debt Warrants and such
Debt Securities or other Securities will be separately transferable.
(9) Any other terms of such Debt Warrants.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
Debt Warrant Certificates will be exchangeable for new Debt Warrant
Certificates of different denominations. No service charge will be made for any
permitted transfer or exchange of Debt Warrant Certificates, but the Company may
require payment of any tax or other governmental charge payable in connection
therewith. Debt Warrants may be exercised and exchanged, and Debt Warrants in
registered form may be presented for registration of transfer at the corporate
trust office of the Debt Warrant Agent or any other office indicated in the
prospectus supplement.
EXERCISE OF DEBT WARRANTS
Each Offered Debt Warrant will entitle the holder thereof to purchase such
amount of Underlying Debt Securities at the exercise price set forth in, or
calculable from, the prospectus supplement relating to such Offered Debt
Warrants. After the close of business on the applicable expiration date,
unexercised Debt Warrants will become void.
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Debt Warrants may be exercised by payment to the Debt Warrant Agent of the
applicable exercise price and by delivery to the Debt Warrant Agent of the
related Debt Warrant Certificate, with the reverse side thereof properly
completed. Debt Warrants will be deemed to have been exercised upon receipt of
the exercise price, subject to the receipt by the Debt Warrant Agent, within
five business days thereafter, of the Debt Warrant Certificate or Certificates
evidencing such Debt Warrants. Upon receipt of such payment and the properly
completed Debt Warrant Certificates at the corporate trust office of the Debt
Warrant Agent or any other office indicated in the prospectus supplement, the
Company will, as soon as practicable, deliver the amount of Underlying Debt
Securities purchased upon such exercise. If fewer than all of the Debt Warrants
represented by any Debt Warrant Certificate are exercised, a new Debt Warrant
Certificate will be issued for the unexercised Debt Warrants. The holder of a
Debt Warrant will be required to pay any tax or other governmental charge that
may be imposed in connection with any transfer involved in the issuance of
Underlying Debt Securities purchased upon such exercise.
MODIFICATIONS
The Debt Warrant Agreement and the terms of the Offered Debt Warrants may be
modified or amended by the Company and the Debt Warrant Agent, without the
consent of any holder, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
therein, or in any other manner that the Company deems necessary or desirable
and that will not materially and adversely affect the interests of the holders
of the Offered Debt Warrants.
The Company and the Debt Warrant Agent may also modify or amend the Debt
Warrant Agreement and the terms of the Offered Debt Warrants with the consent of
the holders of not less than a majority in number of the then outstanding
unexercised Debt Warrants affected thereby; provided that no such modification
or amendment that accelerates the expiration date, increases the exercise price,
reduces the number of outstanding Debt Warrants the consent of the holders of
which is required for any such modification or amendment, or otherwise
materially and adversely affects the rights of the holders of the Debt Warrants,
may be made without the consent of each holder affected thereby.
NO RIGHTS AS HOLDERS OF UNDERLYING DEBT SECURITIES
Holders of Debt Warrants are not entitled, by virtue of being such holders,
to payments of principal of (or premium, if any) or interest, if any, on the
related Underlying Debt Securities or to exercise any other rights whatsoever as
holders of the Underlying Debt Securities.
DESCRIPTION OF PREFERRED STOCK
The Company may issue (either separately or together with other Offered
Securities) shares of its Preferred Stock. Under its Restated Certificate of
Incorporation (the "Certificate of Incorporation"), the Company is authorized to
adopt resolutions providing for the issuance, in one or more series, of up to
3,000,000 shares of its Preferred Stock, with such powers, preferences and
relative, participating, optional or other special rights and qualifications,
limitations or restrictions thereof as shall be adopted by the Board of
Directors or a duly authorized committee thereof. The following summary of
certain provisions of the Preferred Stock does not purport to be complete and is
subject to, and qualified in its entirety by reference to, the Certificate of
Incorporation and the Certificate of Designations relating to the subject
Preferred Stock.
The specific terms of (i) any Preferred Stock proposed to be sold pursuant
to this prospectus and the accompanying prospectus supplement (the "Offered
Preferred Stock") and (ii) any Preferred Stock to be represented by Depositary
Shares or issuable upon the conversion or exchange of other Offered Securities
(the "Underlying Preferred Stock") will be described in such prospectus
supplement.
If so indicated in the prospectus supplement, the terms of the Offered
Preferred Stock or Underlying Preferred Stock may differ from the terms set
forth below, except those terms required by the Certificate of Incorporation.
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GENERAL
Under the Certificate of Incorporation, each series of Preferred Stock of
the Company will rank on a parity as to dividends and distributions of assets
upon liquidation with every other series of Preferred Stock of the Company. The
Offered and Underlying Preferred Stock will, when issued, be fully paid and non-
assessable and holders thereof will have no preemptive rights.
Reference is made to the prospectus supplement for the terms of the Offered
Preferred Stock, the Underlying Preferred Stock or both, as the case may be,
including:
(1) The title and stated value of such Preferred Stock.
(2) The number of shares of such Preferred Stock offered, the
liquidation preference per share and the offering price of such Preferred
Stock.
(3) The dividend rate(s), period(s) and/or payment date(s) or method(s)
of calculation thereof applicable to such Preferred Stock.
(4) The date from which dividends on such Preferred Stock shall
accumulate, if applicable.
(5) The liquidation preference of such Preferred Stock.
(6) The procedures for any auction and remarketing, if any, of such
Preferred Stock.
(7) The provision for a sinking fund, if any, for such Preferred Stock.
(8) The provision for redemption, if applicable, of such Preferred
Stock.
(9) Whether interests in such Preferred Stock will be represented by
Depositary Shares.
(10) Whether such Preferred Stock will be convertible into or
exchangeable for shares of Common Stock or other Securities and, if so, the
terms and conditions upon which such Preferred Stock will be so convertible
or exchangeable, including the conversion price or exchange ratio and the
conversion or exchange period (or the method of determining the same).
(11) Whether such Preferred Stock will be listed on any securities
exchange.
(12) Whether such Preferred Stock will be issued with any other
Securities.
(13) Any other specific terms, preferences or rights of, or limitations
or restrictions on, such Preferred Stock.
Subject to the Certificate of Incorporation and to any limitations contained
in outstanding Preferred Stock, the Company may issue additional series of
Preferred Stock, at any time or from time to time, with such powers, preferences
and relative, participating, optional or other special rights and
qualifications, limitations or restrictions thereof, as the Board of Directors
or any duly authorized committee thereof may determine, all without further
action of the stockholders, including holders of then outstanding Preferred
Stock, of the Company.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
DIVIDENDS
Holders of Preferred Stock will be entitled to receive cash dividends, when,
as and if declared by the Board of Directors, out of assets of the Company
legally available for payment, at such rate and on such dates as will be set
forth in the prospectus supplement. Each dividend will be payable to holders of
record as they appear on the stock books of the Company on the record date fixed
by the Board of Directors. Dividends, if cumulative, will be cumulative from and
after the date set forth in the prospectus supplement.
The Company may not (i) declare or pay dividends (except in stock of the
Company junior as to dividend or liquidation rights to the Preferred Stock (the
"Junior Stock")) or make any other distributions on any Junior Stock, or (ii)
purchase, redeem or otherwise acquire Junior Stock or set aside funds for such
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purpose (except (A) in a reclassification or exchange of Junior Stock through
the issuance of other Junior Stock or (B) with the proceeds of a reasonably
contemporaneous sale of Junior Stock), if there are arrearages in dividends or
failure in the payment of the Company's sinking fund or redemption obligations
on any of its Preferred Stock and, in the case of (i) above, if dividends in
full for the current quarterly dividend period have not been paid or declared on
any of its Preferred Stock.
Dividends in full may not be declared or paid or set apart for payment on
any series of Preferred Stock unless (i) there are no arrearages in dividends
for any past quarterly dividend periods on any series of Preferred Stock and
(ii) to the extent that such dividends are cumulative, dividends in full for the
current quarterly dividend period have been declared or paid on all Preferred
Stock. Any dividends declared or paid when dividends are not so declared, paid
or set apart in full will be shared ratably by the holders of all series of
Preferred Stock in proportion to such respective arrearages and undeclared and
unpaid current quarterly cumulative dividends. No interest, or sum of money in
lieu of interest, will be payable in respect of any dividend payment or payments
that may be in arrears.
CONVERSION AND EXCHANGE
If the Offered Preferred Stock or Underlying Preferred Stock will be
convertible into or exchangeable for Common Stock or other Securities, the
prospectus supplement will set forth the terms and conditions of such conversion
or exchange, including the conversion price or exchange ratio (or the method of
calculating the same), the conversion or exchange period (or the method of
determining the same), whether conversion or exchange will be mandatory or at
the option of the holder or the Company, the events requiring an adjustment of
the conversion price or the exchange ratio and provisions affecting conversion
or exchange in the event of the redemption of such Preferred Stock. Such terms
may also include provisions under which the number of shares of Common Stock or
the number or amount of other Securities to be received by the holders of such
Preferred Stock upon such conversion or exchange would be calculated according
to the market price of the Common Stock or such other Securities as of a time
stated in such prospectus supplement.
LIQUIDATION RIGHTS
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, the holders of each series of the Preferred Stock
will be entitled to receive out of assets of the Company available for
distribution to stockholders, before any distribution of assets is made to
holders of any Junior Stock, liquidating distributions in the amount set forth
in the prospectus supplement plus all accrued and unpaid dividends. If, upon any
voluntary or involuntary liquidation, dissolution or winding up of the Company,
the amounts payable with respect to the Preferred Stock are not paid in full,
the holders of Preferred Stock of each series will share ratably in any such
distribution of assets of the Company in proportion to the full respective
preferential amounts to which they are entitled. After payment of the full
amount of the liquidating distribution to which they are entitled, the holders
of the Preferred Stock will not be entitled to any further participation in any
distribution of assets by the Company. A consolidation or merger of the Company
with or into any other corporation or corporations or a sale of all or
substantially all of the assets of the Company will not be deemed to be a
liquidation, dissolution or winding up of the Company.
REDEMPTION
If so provided in the prospectus supplement, the Offered Preferred Stock or
Underlying Preferred Stock will be redeemable in whole or in part at the option
of the Company, at the times and at the redemption prices set forth therein.
If dividends on any series of Preferred Stock are in arrears or the Company
has failed to fulfill its sinking fund or redemption obligations with respect to
any series of Preferred Stock, the Company may not purchase or redeem any shares
of Preferred Stock or any other capital stock ranking on a parity with the
Preferred Stock as to dividends or upon liquidation, nor permit any subsidiary
to do so, without in either case the consent of the holders of at least
two-thirds of all shares of Preferred Stock then outstanding; provided, however,
that (1) to meet its purchase, retirement or sinking fund obligations with
respect to any series of Preferred Stock, the Company may use shares of such
Preferred Stock acquired prior to such arrearages or
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failure of payment and then held as treasury stock and (2) the Company may
complete the purchase or redemption of shares of Preferred Stock for which a
contract was entered into for any purchase, retirement or sinking fund purposes
prior to such arrearages or failure of payment.
VOTING RIGHTS
Except as indicated below or in the prospectus supplement, or except as
expressly required by applicable law, the holders of the Preferred Stock will
not be entitled to vote. As used herein, the term "Applicable Preferred Stock"
means those series of Preferred Stock to which the provisions described herein
are expressly made applicable by resolutions of the Board of Directors of the
Company.
If the equivalent of six quarterly dividends payable on any share of any
series of Applicable Preferred Stock are in default (whether or not such
dividends have been declared or such defaulted dividends are consecutive), the
number of directors of the Company will be increased by two and the holders of
all outstanding series of Applicable Preferred Stock (whether or not dividends
thereon are in default), voting as a single class without regard to series, will
be entitled to elect the two additional directors until four consecutive
quarterly dividends are paid or declared and set apart for payment, if such
share is non-cumulative, or until all arrearages in dividends and dividends in
full for the current quarterly period are paid or declared and set apart for
payment, if such share is cumulative, whereupon all voting rights described
herein shall be divested from the Applicable Preferred Stock. The holders of
Applicable Preferred Stock may exercise their special class voting rights at
meetings of the stockholders for the election of directors or at special
meetings for the purpose of electing such directors, in either case at which the
holders of not less than one-third of the aggregate number of shares of
Applicable Preferred Stock are present in person or by proxy.
The affirmative vote of the holders of at least two-thirds of the
outstanding shares of Preferred Stock will be required (i) for any amendment of
the Certificate of Incorporation that will adversely affect the powers,
preferences or rights of the holders of the Preferred Stock or (ii) to create
any class of stock (or increase the authorized number of shares of any class of
stock) that will have preference as to dividends or upon liquidation over the
Preferred Stock or create any stock or other security convertible into or
exchangeable for or evidencing the right to purchase any such stock. The
affirmative vote of the holders of at least two-thirds of the outstanding shares
of Preferred Stock of a series will be required for any amendment of the
Certificate of Incorporation (or the related Certificate of Designations) that
will adversely affect the powers, preferences or rights of Preferred Stock of
such series.
The affirmative vote of the holders of a majority of then outstanding shares
of Preferred Stock will be required to (i) increase the authorized amount of the
Preferred Stock or (ii) create any class of stock (or increase the authorized
number of shares of any class of stock) that will rank on a parity with the
Preferred Stock either as to dividends or upon liquidation, or create any stock
or other security convertible into or exchangeable for or evidencing the right
to purchase any such stock.
DESCRIPTION OF DEPOSITARY SHARES
The Company may offer (either separately or together with other Offered
Securities) Depositary Shares representing interests in shares of its Preferred
Stock of one or more series. Reference is made to the prospectus supplement for
a description of the deposit agreements (each a "Deposit Agreement") to be
entered into between the Company and a bank or trust company, as depositary (the
"Preferred Stock Depositary"). A copy of the form of Deposit Agreement,
including the form of depositary receipts evidencing Depositary Shares (the
"Depositary Receipts"), has been filed as an exhibit to the registration
statement. The following summary of certain provisions of the Depositary Shares
does not purport to be complete and is subject to, and qualified in its entirety
by reference to, the Deposit Agreement and the Deposit Receipts, including the
definitions of certain terms.
The specific terms of any Depositary Shares proposed to be sold pursuant to
this prospectus and the accompanying prospectus supplement (the "Offered
Depositary Shares") will be described in such prospectus supplement. If so
indicated in the prospectus supplement, the terms of the Depositary Shares may
differ from the terms set forth below.
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GENERAL
The Company will provide for the issuance by the Preferred Stock Depositary
to the public of the Depositary Receipts evidencing the Depositary Shares, each
of which will represent a fractional interest (to be specified in the prospectus
supplement) in one share of the related Preferred Stock, as described below.
Reference is made to the prospectus supplement for the terms of the Offered
Depositary Shares, including:
(1) The terms of the series of Preferred Stock deposited by the Company
under the Deposit Agreement.
(2) The number of such Depositary Shares and the fraction of one share of
such Preferred Stock represented by one such Depositary Share.
(3) Whether such Depositary Shares will be listed on any securities
exchange.
(4) Whether such Depositary Shares will be sold with any other Offered
Securities and, if so, the amount and terms thereof.
(5) Any other terms of such Depositary Shares.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
Depositary Receipts will be exchangeable for new Depositary Receipts of
different denominations. No service charge will be made for any permitted
transfer or exchange of Depositary Receipts, but the Company may require payment
of any tax or other governmental charge payable in connection therewith. Subject
to the terms of the Deposit Agreement, each owner of a Depositary Share will be
entitled, in proportion to the applicable fractional interest in a share of
Preferred Stock of such series represented by such Depositary Share, to all
rights and preferences of the Preferred Stock represented by such Depositary
Share (including dividend, voting and liquidation rights and any redemption,
conversion or exchange rights).
DIVIDENDS AND OTHER DISTRIBUTIONS
The Preferred Stock Depositary will distribute all cash dividends and other
cash distributions received in respect of the related series of Preferred Stock
to the record holders of the Depositary Shares in proportion to the number of
such Depositary Shares owned by such holders on the relevant record date. The
Preferred Stock Depositary will distribute only such amount, however, as can be
distributed without attributing to any holder of Depositary Shares a fraction of
one cent, and any balance not so distributed will be added to and treated as
part of the next sum, if any, received by the Preferred Stock Depositary for
distribution to record holders of Depositary Shares.
In the event of a distribution other than in cash, the Preferred Stock
Depositary will distribute property received by it to the record holders of
Depositary Shares entitled thereto, unless the Preferred Stock Depositary
determines that it is not feasible to make such distribution, in which case the
Preferred Stock Depositary may, with the approval of the Company, sell such
property and distribute the net proceeds from such sale to such holders.
The Deposit Agreement will also contain provisions relating to the manner in
which any subscription or similar rights offered by the Company to holders of
the related series of Preferred Stock will be made available to holders of
Depositary Shares.
WITHDRAWAL OF PREFERRED STOCK
Upon surrender of Depositary Receipts at the corporate trust office of the
Preferred Stock Depositary (unless the related shares of Preferred Stock have
previously been called for redemption), the holder of the Depositary Shares
evidenced thereby will be entitled to receive at such office, to or upon such
holder's order, the number of whole shares of the related series of Preferred
Stock and any money or other property represented by such Depositary Shares.
Shares of Preferred Stock so withdrawn, however, may not be redeposited. If the
holder requests withdrawal of less than all the shares of Preferred Stock to
which such holder is entitled, or if such holder would otherwise be entitled to
a fractional share of Preferred Stock, the Preferred Stock Depositary will
deliver to such holder a new Depositary Receipt evidencing such balance or
fractional share.
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REDEMPTION OF DEPOSITARY SHARES
Whenever the Company redeems Preferred Stock held by the Preferred Stock
Depositary, the Preferred Stock Depositary will redeem as of the same redemption
date the number of Depositary Shares representing the Preferred Stock so
redeemed; provided that the Company has paid in full to the Preferred Stock
Depositary the redemption price of such Preferred Stock plus an amount equal to
any accrued and unpaid dividends thereon to the date fixed for redemption. The
redemption price per Depositary Share will be equal to the applicable fraction
of the redemption price per share and accrued and unpaid dividends payable with
respect to such Preferred Stock. If less than all the Depositary Shares are to
be redeemed, the Depositary Shares to be redeemed will be selected by lot or pro
rata or by another equitable method, in each case as may be determined by the
Company.
After the date fixed for redemption, the Depositary Shares so called for
redemption will no longer be deemed to be outstanding and all rights of the
holders of such Depositary Shares will cease, except the right to receive the
moneys payable upon such redemption and any money or other property to which the
holders of such Depositary Shares were entitled upon such redemption and
surrender to the Preferred Stock Depositary of the Depositary Receipts
evidencing such Depositary Shares.
CONVERSION AND EXCHANGE
Depositary Shares, as such, are not convertible into or exchangeable for
Common Stock or other Securities. Nevertheless, if the Preferred Stock
represented by Depositary Shares is convertible into or exchangeable for Common
Stock or other Securities, the Depositary Receipts evidencing such Depositary
Shares may be surrendered by the holder thereof to the Preferred Stock
Depositary with written instructions to convert or exchange such Preferred Stock
into whole shares of Common Stock or other Securities, as specified in the
related prospectus supplement. The Company, upon receipt of such instructions
and any amounts payable in respect thereof, will cause the conversion or
exchange thereof and will deliver to the holder such whole shares of Common
Stock or such whole number of other Securities (and cash in lieu of any
fractional share or Security). In the case of a partial conversion or exchange,
the holder will receive a new Depositary Receipt evidencing the unconverted or
unexchanged balance.
VOTING THE PREFERRED STOCK
Upon receipt of notice of any meeting at which holders of one or more series
of Preferred Stock are entitled to vote, the Preferred Stock Depositary will
mail the information contained in such notice of meeting to the holders of the
Depositary Shares relating to such Preferred Stock. Each record holder of such
Depositary Shares on the record date for such meeting will be entitled to
instruct the Preferred Stock Depositary as to the manner in which to vote the
number of shares of Preferred Stock represented by such Depositary Shares. The
Company will agree to take all reasonable action that may be deemed necessary by
the Preferred Stock Depositary in order to enable the Preferred Stock Depositary
to vote in accordance with each holder's instructions. The Preferred Stock
Depositary will abstain from voting Preferred Stock to the extent it does not
receive instructions from the holders of Depositary Shares representing such
Preferred Stock.
AMENDMENT AND TERMINATION OF THE DEPOSIT AGREEMENT
The form of Depositary Receipt evidencing the Depositary Shares and any
provision of the Deposit Agreement may at any time be amended by agreement
between the Company and the Preferred Stock Depositary. However, any amendment
that materially and adversely alters the rights of the holders of Depositary
Shares will not be effective unless such amendment has been approved by the
holders of at least a majority of the Depositary Shares then outstanding (or
such greater amount as may be required by the rules of any exchange on which the
Depositary Shares are listed); provided that any amendment that prejudices any
substantial right of the holders of Depositary Shares will not become effective
until the expiration of 90 days after notice of such amendment has been given to
such holders. A holder that continues to hold one or more Depositary Receipts at
the expiration of such 90-day period will be deemed to consent to, and will be
bound by, such amendment. No amendment may impair the right of any holder to
surrender such holder's Depositary Receipt and receive the related Preferred
Stock, as discussed above under "Withdrawal of Preferred Stock".
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The Deposit Agreement may be terminated by the Company at any time upon not
less than 60 days prior written notice to the Preferred Stock Depositary. In any
such case, the Preferred Stock Depositary will deliver to each holder of
Depositary Shares, upon surrender of the related Depositary Receipts, the number
of whole shares of the related series of Preferred Stock to which such holder is
entitled, together with cash in lieu of any fractional share. The Deposit
Agreement will terminate automatically after all the related Preferred Stock has
been redeemed, withdrawn, converted or exchanged or there has been a final
distribution in respect of the Preferred Stock represented by such Depositary
Shares in connection with any liquidation, dissolution or winding up of the
Company.
CHARGES OF PREFERRED STOCK DEPOSITARY
Except as provided in the prospectus supplement, the Company will pay the
fees and expenses of the Preferred Stock Depositary, and the holders of
Depositary Receipts will be required to pay any tax or other governmental charge
that may be imposed in connection with the transfer, exercise, surrender or
split-up of Depositary Receipts.
MISCELLANEOUS
The Preferred Stock Depositary will forward to the holders of Depositary
Shares all reports and communications from the Company that are delivered to the
Preferred Stock Depositary and that the Company is required to furnish to the
holders of the Preferred Stock. Neither the Preferred Stock Depositary nor the
Company will be liable if it is prevented or delayed by law or any circumstance
beyond its control in performing its obligations under the Deposit Agreement.
The obligations of the Company and the Preferred Stock Depositary under the
Deposit Agreement will be limited to performance in good faith and without gross
negligence of their respective duties thereunder, and neither entity will be
obligated to prosecute or defend any legal proceeding in respect of any
Depositary Shares or related shares of Preferred Stock unless satisfactory
indemnity is furnished.
RESIGNATION AND REMOVAL OF PREFERRED STOCK DEPOSITARY
The Preferred Stock Depositary may resign at any time by delivering to the
Company notice of its election to do so, and the Company may at any time remove
the Preferred Stock Depositary, any such resignation or removal to take effect
upon the appointment of a successor Preferred Stock Depositary. Such successor
Preferred Stock Depositary must be appointed within 60 days after delivery of a
notice of resignation or removal and must be a bank or trust company having its
principal office in the United States and having a combined capital and surplus
of at least $50,000,000.
DESCRIPTION OF COMMON STOCK
The Company may issue (either separately or together with other Offered
Securities) shares of its Common Stock. Under the Certificate of Incorporation,
the Company is authorized to issue up to 200,000,000 shares of its Common Stock.
Reference is made to the prospectus supplement relating to Offered Common Stock,
or Offered Securities convertible or exchangeble for, or exercisable into Common
Stock for the terms relevant thereto, including the number of shares offered,
any initial offering price, and market price and dividend information, as well
as, if applicable, information on such other Offered Securities. See
"Description of Outstanding Capital Stock" below.
DESCRIPTION OF COMMON WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Common Warrants to purchase Common Stock (the "Offered Common
Warrants"). The Common Warrants will be issued under warrant agreements (each a
"Common Warrant Agreement") to be entered into between the Company and a bank or
trust company, as warrant agent (the "Common Warrant Agent"). The form of Common
Warrant Agreement has been filed as an exhibit to the registration statement.
The following summary of certain provisions of the Common Warrant Agreement does
not purport to be complete and is subject to, and qualified in its entirety by
reference to the Common Warrant Agreement, including the definitions of certain
terms.
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GENERAL
Reference is made to the prospectus supplement for the terms of the Offered
Common Warrants, including:
(1) The title and aggregate number of such Common Warrants.
(2) The number of shares of Common Stock that may be purchased upon
exercise of each such Common Warrant; the price, or the manner of
determining the price, at which such shares may be purchased upon such
exercise; if other than cash, the property and manner in which the exercise
price may be paid; and any minimum number of such Common Warrants that are
exercisable at any one time.
(3) The time or times at which, or period or periods in which, such
Common Warrants may be exercised and the expiration date of such Common
Warrants.
(4) The terms of any right of the Company to redeem such Common
Warrants.
(5) The terms of any right of the Company to accelerate the exercise of
such Common Warrants upon the occurrence of certain events.
(6) Whether such Common Warrants will be sold with any other Offered
Securities.
(7) The date, if any, on and after which such Common Warrants and such
Offered Securities will be separately transferable.
(8) Any other terms of such Common Warrants.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
Certificates representing Common Warrants (the "Common Warrant
Certificates") will be exchangeable for new Common Warrant Certificates of
different denominations. No service charge will be made for any permitted
transfer or exchange of Common Warrant Certificates, but the Company may require
payment of any tax or other governmental charge payable in connection therewith.
Common Warrants may be exercised at the corporate trust office of the Common
Warrant Agent or any other office indicated in the prospectus supplement.
EXERCISE OF COMMON WARRANTS
Each Offered Common Warrant will entitle the holder thereof to purchase such
number of shares of Common Stock at the exercise price set forth in, or
calculable from, the prospectus supplement relating to such Offered Common
Warrants. After the close of business on the applicable expiration date,
unexercised Common Warrants will become void.
Offered Common Warrants may be exercised by payment to the Common Warrant
Agent of the exercise price and by delivery to the Common Warrant Agent of the
related Common Warrant Certificate, with the reverse side thereof properly
completed. Offered Common Warrants will be deemed to have been exercised upon
receipt of the exercise price, subject to the receipt by the Common Warrant
Agent, within five business days thereafter, of the Common Warrant Certificate
or Certificates evidencing such Offered Common Warrants. Upon receipt of such
payment and the properly completed Common Warrant Certificates at the corporate
trust office of the Common Warrant Agent or such other office acceptable to the
Common Warrant Agent, the Company will, as soon as practicable, deliver the
shares of Common Stock purchased upon such exercise. If fewer than all of the
Offered Common Warrants represented by any Common Warrant Certificate are
exercised, a new Common Warrant Certificate will be issued for the unexercised
Offered Common Warrants. The holder of an Offered Common Warrant will be
required to pay any tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of Common Stock purchased
upon such exercise.
MODIFICATIONS
The Common Warrant Agreement and the terms of the Offered Common Warrants
may be modified or amended by the Company and the Common Warrant Agent, without
the consent of any holder, for the
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purpose of curing any ambiguity, or of curing, correcting or supplementing any
defective or inconsistent provision contained therein, or in any other manner
that the Company deems necessary or desirable and that will not materially and
adversely affect the interests of the holders of the Offered Common Warrants.
The Company and the Common Warrant Agent may also modify or amend the Common
Warrant Agreement and the terms of the Offered Common Warrants with the consent
of the holders of not less than a majority in number of the then outstanding
unexercised Common Warrants affected thereby; provided that no such modification
or amendment that accelerates the expiration date, increases the exercise price,
reduces the number of consents required for any modification or amendment, or
otherwise materially and adversely affects the rights of the holders of the
Common Warrants, may be made without the consent of each holder affected
thereby.
COMMON WARRANT ADJUSTMENTS
The terms and conditions on which the exercise price of and/or the number of
shares of Common Stock covered by an Offered Common Warrant are subject to
adjustment will be set forth in the Common Warrant Agreement and the prospectus
supplement. Such terms will include provisions for adjusting the exercise price
and/or the number of shares of Common Stock covered by such Offered Common
Warrant; the events requiring such adjustment; the events upon which the Company
may, in lieu of making such adjustment, make proper provisions so that the
holder of such Offered Common Warrant, upon exercise thereof, would be treated
as if such holder had exercised such Offered Common Warrant prior to the
occurrence of such events; and provisions affecting exercise in the event of
certain events affecting the Common Stock.
NO RIGHTS AS STOCKHOLDERS
Holders of Common Warrants are not entitled, by virtue of being such
holders, to vote, consent or receive notice as stockholders of the Company in
respect of any meeting of stockholders for the election of directors of the
Company or any other matter, or exercise any other rights whatsoever as
stockholders of the Company.
DESCRIPTION OF CURRENCY WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Currency Warrants (the "Offered Currency Warrants"). The Offered
Currency Warrants may be issued (a) in the form of Currency Put Warrants,
entitling the owners thereof to receive from the Company the Cash Settlement
Value (as hereinafter defined) in U.S. dollars of the right to purchase a
designated amount of U.S. dollars for a designated amount of a specified foreign
Currency (a "Base Currency"), (b) in the form of Currency Call Warrants,
entitling the owners thereof to receive from the Company the Cash Settlement
Value in U.S. dollars of the right to sell a designated amount of U.S. dollars
for a designated amount of a Base Currency or (c) in such other form as shall be
specified in the applicable prospectus supplement. A Currency Warrant will not
require or entitle the owners to sell, deliver, purchase or take delivery of any
Base Currency. The Currency Warrants will be issued under warrant agreements
(each a "Currency Warrant Agreement") to be entered into between the Company and
a bank or trust company, as warrant agent (the "Currency Warrant Agent"), to be
set forth in the prospectus supplement relating to the Offered Currency
Warrants. The form of Currency Warrant Agreement, has been filed as an exhibit
to the registration statement. The following summary of certain provisions of
the Currency Warrant Agreement does not purport to be complete and is subject
to, and qualified in its entirety by reference to, all the provisions of the
Currency Warrant Agreement and the Currency Warrant Certificates, respectively,
including the definitions of certain terms.
GENERAL
Reference is made to the prospectus supplement for the terms of Offered
Currency Warrants, including:
(1) The title and aggregate number of such Currency Warrants.
(2) The material risk factors relating to such Currency Warrants.
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(3) Whether such Currency Warrants shall be Currency Put Warrants,
Currency Call Warrants, both puts and calls or otherwise.
(4) The formula for determining the Cash Settlement Value, if
applicable, of each such Currency Warrant.
(5) The procedures and conditions relating to the exercise of such
Currency Warrants.
(6) The date on which the right to exercise such Currency Warrants will
commence and the date (the "Currency Warrant Expiration Date") on which such
right will expire.
(7) The circumstances, in addition to their automatic exercise upon the
Currency Warrant Expiration Date, that will cause such Currency Warrants to
be deemed to be automatically exercised.
(8) Any minimum number of such Currency Warrants that must be exercised
at any one time, other than upon automatic exercise.
(9) Whether such Currency Warrants are to be issued with any other
Offered Securities.
(10) Any other terms of such Currency Warrants.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
If Currency Warrants are to be offered either in the form of Currency Put
Warrants or Currency Call Warrants, an owner will receive a cash payment upon
exercise only if the Currency Warrants have a Cash Settlement Value in excess of
zero at that time. The spot exchange rate of the applicable Base Currency, as
compared to the U.S. dollar upon exercise, will determine whether the Currency
Warrants have a Cash Settlement Value on any given day prior to their
expiration. The Currency Warrants are expected to be "out-of-the-money" (I.E.,
the Cash Settlement Value will be zero) when initially sold and will be
"in-the-money" (I.E., their Cash Settlement Value will exceed zero) if, in the
case of Currency Put Warrants, the Base Currency depreciates against the U.S.
dollar to the extent that one U.S. dollar is worth more than the price
determined for the Base Currency in the prospectus supplement (the "Strike
Price") or, in the case of Currency Call Warrants, the Base Currency appreciates
against the U.S. dollar to the extent one U.S. dollar is worth less than the
Strike Price. "Cash Settlement Value" on an Exercise Date (as such term will be
defined in the prospectus supplement) is an amount that is the greater of (i)
zero and (ii) the amount computed, in the case of Currency Put Warrants, by
subtracting from a constant or, in the case of Currency Call Warrants, by
subtracting such constant from, an amount equal to such a constant multiplied by
a fraction, the numerator of which is the Strike Price and the denominator of
which is the spot exchange rate of the Base Currency for U.S. dollars on the
Exercise Date (the "Spot Rate") as such Spot Rate is determined pursuant to the
Currency Warrant Agreement. Information concerning the historical exchange rates
for the Base Currency will be included in the prospectus supplement.
There will be a time lag between the time that an owner of Currency Warrants
gives instructions to exercise such Currency Warrants and the time that the Spot
Rate relating to such exercise is determined, as described in the prospectus
supplement.
Currency Warrants will be unsecured contractual obligations of the Company
and will rank on a parity with the Company's other unsecured contractual
obligations and with the Company's unsecured and unsubordinated debt.
BOOK-ENTRY PROCEDURES AND SETTLEMENT
Unless otherwise provided in the prospectus supplement, each issue of
Currency Warrants will be issued in book-entry form and represented by a single
global Currency Warrant Certificate, registered in the name of a depository or
its nominees. Owners will generally not be entitled to receive definitive
certificates representing Currency Warrants. An owner's ownership of a Currency
Warrant will be recorded on or through the records of the brokerage firm or
other entity that maintains such owner's account. In turn, the total number of
Currency Warrants held by an individual brokerage firm for its clients will be
maintained on
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the records of the depository in the name of such brokerage firm or its agent.
Transfer of ownership of any Currency Warrant will be effected only through the
selling owner's brokerage firm. Neither the Company nor the Currency Warrant
Agent will have any responsibility or liability for any aspect of the records
relating to beneficial ownership interests of global Currency Warrant
Certificates or for maintaining, supervising or reviewing records relating to
such beneficial ownership interests.
The Cash Settlement Value on exercise of a Currency Warrant will be paid by
the Currency Warrant Agent to the depository. The depository will be responsible
for crediting the amount of such payments to the accounts of the participants in
accordance with its standard procedures. Each participant will be responsible
for disbursing such payments to the beneficial owners of the Currency Warrants
that it represents and to each brokerage firm for which it acts as agent. Each
such brokerage firm will be responsible for disbursing funds to the owners of
the Currency Warrants that it represents.
If the depository is at any time unwilling or unable to continue as
depository and a successor depository is not appointed by the Company within 90
days, the Company will issue Currency Warrants in definitive form in exchange
for the global Currency Warrant. In addition, the Company may at any time
determine not to have the Currency Warrants represented by a global Currency
Warrant and, in such event, will issue Currency Warrants in definitive form in
exchange for the global Currency Warrant. In either instance, an owner of a
beneficial interest in the global Currency Warrant will be entitled to have a
number of Currency Warrants equivalent to such beneficial interest registered in
its name and will be entitled to physical delivery of such Currency Warrants in
definitive form.
EXERCISE OF CURRENCY WARRANTS
Unless otherwise provided in the prospectus supplement, each Currency
Warrant will entitle the owner to the Cash Settlement Value of such Currency
Warrant on the applicable Exercise Date. If not exercised prior to a specified
time on the fifth business day preceding the Currency Warrant Expiration Date,
Currency Warrants will be automatically exercised on the Currency Warrant
Expiration Date.
LISTING
Each issue of Currency Warrants will be listed on a national securities
exchange, subject only to official notice of issuance, as a pre-condition to the
sale of any such Currency Warrants, unless otherwise provided in the prospectus
supplement. In the event that the Currency Warrants are delisted from, or
permanently suspended from trading on, such exchange, Currency Warrants not
previously exercised will be automatically exercised on the date such delisting
or permanent trading suspension becomes effective. The applicable Currency
Warrant Agreement will contain a covenant of the Company not to seek delisting
of the Currency Warrants from, or permanent suspension of their trading on, such
exchange.
MODIFICATIONS
The Currency Warrant Agreement and the terms of the Currency Warrants may be
amended by the Company and the Currency Warrant Agent, without the consent of
the owners or the registered holder, for the purpose of curing any ambiguity, or
of curing, correcting or supplementing any defective or inconsistent provision
contained therein, or in any other manner which the Company may deem necessary
or desirable and which will not materially and adversely affect the interests of
the owners.
The Company and the Currency Warrant Agent also may modify or amend the
Currency Warrant Agreement and the terms of the Currency Warrants with the
consent of the beneficial owners of not less than a majority in number of the
then outstanding unexercised Currency Warrants affected, provided that no such
modification or amendment that increases the Strike Price in the case of a
Currency Put Warrant, decreases the Strike Price in the case of a Currency Call
Warrant, shortens the period of time during which the Currency Warrants may be
exercised or otherwise materially and adversely affects the exercise rights of
the owners of the Currency Warrants or reduces the number of outstanding
Currency Warrants the consent of whose owners is required for modification or
amendment of the Currency Warrant Agreement or the terms of the Currency
Warrants may be made without the consent of each owner affected thereby.
31
<PAGE>
ENFORCEABILITY OF RIGHTS BY OWNERS; GOVERNING LAW
The Currency Warrant Agent will act solely as an agent of the Company in
connection with the issuance and exercise of Currency Warrants and will not
assume any obligation or relationship of agency or trust for or with any owner
of a beneficial interest in Currency Warrants or with the registered holder
thereof. The Currency Warrant Agent shall have no duty or responsibility in case
of any default by the Company in the performance of its obligations under the
Currency Warrant Agreement or a Currency Warrant Certificate including, without
limitation, any duty or responsibility to initiate any proceedings at law or
otherwise or to make any demand upon the Company. Owners may, without the
consent of the Currency Warrant Agent, enforce by appropriate legal action, on
their own behalf, their right to exercise, and to receive payment for, their
Currency Warrants. Except as may otherwise be provided in the prospectus
supplement, each issue of Currency Warrants and the applicable Currency Warrant
Agreement will be governed by and construed in accordance with the law of the
State of New York.
DESCRIPTION OF OTHER WARRANTS
The Company may issue (either separately or together with other Offered
Securities) Other Warrants (the "Offered Other Warrants"). The Offered Other
Warrants may be issued to buy or sell debt securities of or guaranteed by the
United States, to buy or sell Currencies, to buy or sell units of a stock index
or stock basket, to buy or sell a commodity or a unit of a commodity index or to
buy or sell some other item or unit of an index (collectively, "Exercise
Items"). Other Warrants will be settled either through physical delivery or
through payment of a cash settlement value as set forth in the prospectus
supplement. Other Warrants will be issued under warrant agreements (each, an
"Other Warrant Agreement") to be entered into between the Company and a bank or
trust company, as warrant agent (the "Other Warrant Agent"), all as set forth in
the prospectus supplement relating to the Offered Other Warrants. The form of
Other Warrant Agreement, has been filed as an exhibit to the registration
statement. The following summary of certain provisions of the Other Warrant
Agreement and the Other Warrant Certificates does not purport to be complete and
is subject to, and qualified in its entirety by reference to, the Other Warrant
Agreement and the Other Warrant Certificates, including the definitions of
certain terms therein.
GENERAL
Reference is made to the prospectus supplement for the terms of the Offered
Other Warrants, including (to the extent such terms are applicable to such Other
Warrants):
(1) The title and aggregate number of such Other Warrants.
(2) The material risk factors relating to such Other Warrants.
(3) The Exercise Items that such Other Warrants represent the right to
buy or sell.
(4) The procedures and conditions relating to the exercise of such Other
Warrants.
(5) The date on which the right to exercise such Other Warrants shall
commence and the date on which such right shall expire.
(6) Whether such Other Warrants will be listed on a national securities
exchange.
(7) Any other terms of such Other Warrants, including any terms that may
be required or advisable under applicable law.
If applicable, the prospectus supplement will also set forth information
concerning any other Securities offered thereby and a discussion of federal
income tax considerations relevant thereto.
RISK FACTORS RELATING TO THE OTHER WARRANTS
The Other Warrants may entail significant risks, including, without
limitation, the possibility of significant fluctuations in the market for the
applicable Exercise Item, potential illiquidity in the secondary market and the
risk that they will expire worthless. These risks will vary depending on the
particular terms of the Other Warrants and will be more fully described in the
prospectus supplement.
32
<PAGE>
DESCRIPTION OF OUTSTANDING CAPITAL STOCK
The authorized capital stock of the Company consists of (i) 200,000,000
shares of Common Stock, $1.00 par value per share, and (ii) 3,000,000 shares of
Preferred Stock, $1.00 par value per share.
On April 30, 1994, there were outstanding (a) 86,315,934 shares of Common
Stock, (b) employee stock options to purchase an aggregate of 1,840,167 shares
of Common Stock (of which options to purchase an aggregate of 1,246,031 shares
of Common Stock were currently exercisable) and (c) rights to purchase Series A
Participating Preferred Stock, $1.00 par value (the "Series A Preferred Stock").
No Preferred Stock had been issued as of such date, although rights to purchase
the Series A Preferred Stock had been distributed to holders of the Common Stock
pursuant to the Rights Agreement, as further described below. A maximum of
1,000,000 shares of Series A Preferred Stock is currently authorized for
issuance upon exercise of such rights. See "Rights Plan" below.
The following descriptions are summaries, and reference is made to the
detailed provisions of the following documents: (i) the Certificate of
Incorporation; (ii) the Company's bylaws; and (iii) the Rights Agreement, as
amended, between the Company and Chemical Bank, successor Rights Agent (the
"Rights Agreement").
COMMON STOCK
Subject to the rights of the holders of any outstanding shares of Preferred
Stock, holders of Common Stock are entitled to receive dividends when, as and if
declared by the Board of Directors out of funds legally available therefor. See
also "Description of Preferred Stock--Dividends". Certain of the Company's
credit agreements contain provisions requiring the maintenance of a minimum
consolidated tangible net worth. Under these provisions, the total consolidated
retained earnings balance of $926.5 million at October 31, 1993 was free of
restrictions as to payment of dividends or acquisition of Common Stock.
Each holder of Common Stock is entitled to one vote for each share held on
all matters voted upon by the stockholders of the Company, including the
election of directors. The Common Stock does not have cumulative voting rights.
Election of directors is decided by the holders of a plurality of the shares
entitled to vote and present in person or by proxy at a meeting for the election
of directors. See "Description of Preferred Stock--Voting Rights" for a
discussion of the voting rights of any Preferred Stock that might be issued in
the future.
In the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company, after the payment or provision for payment of the
debts and other liabilities of the Company and the preferential amounts to which
holders of the Company's Preferred Stock are entitled (if any shares of
Preferred Stock are then outstanding), the holders of Common Stock are entitled
to share ratably in the remaining assets of the Company.
The outstanding shares of Common Stock are, and any shares of Common Stock
offered hereby upon issuance and payment therefor will be, fully paid and
non-assessable. The Common Stock has no preemptive or conversion rights and
there are no redemption or sinking fund provisions applicable thereto.
The Common Stock of the Company is listed on the New York Stock Exchange
(symbol "DE") and the Chicago Stock Exchange. The transfer agent and registrar
is Chemical Bank.
CLASSIFICATION OF BOARD OF DIRECTORS. The Board of Directors of the Company
is divided into three approximately equal classes, having staggered terms of
office of three years each. The effect of a classified Board of Directors may be
to make it more difficult to acquire control of the Company.
DELAWARE GENERAL CORPORATION LAW SECTION 203. The Company is subject to the
provisions of Section 203 of the General Corporation Law of the State of
Delaware ("Delaware Section 203"), the "business combination" statute. In
general, the law prohibits a public Delaware corporation from engaging in a
"business combination" with an "interested stockholder" for a period of three
years after the date of the transaction in which the person became an interested
stockholder, unless (i) prior to such date, the board of directors of the
corporation approved either the business combination or the transaction that
resulted in the
33
<PAGE>
stockholder becoming an interested stockholder, (ii) upon consummation of the
transaction that resulted in the stockholder becoming an interested stockholder,
the interested stockholder owned at least 85% of the voting stock of the
corporation outstanding at the time the transaction commenced (excluding certain
shares described in Delaware Section 203), or (iii) on or subsequent to such
date, the business combination is approved by the board of directors of the
corporation and authorized at an annual or special meeting of stockholders and
by the affirmative vote of at least two-thirds of the outstanding voting stock
that is not owned by the "interested stockholder". "Business combination" is
defined to include mergers, asset sales and certain other transactions resulting
in a financial benefit to a stockholder. An "interested stockholder" is defined
generally as a person who, together with affiliates and associates, owns (or,
within the prior three years, did own) 15% or more of a corporation's voting
stock. The Certificate of Incorporation does not exclude the Company from the
restrictions imposed under the statute and the statute could prohibit or delay
the accomplishment of mergers or other takeover or change in control attempts
with respect to the Company and, accordingly, may discourage attempts to acquire
the Company.
RIGHTS PLAN
The Company's Rights Agreement provides that attached to each share of
Common Stock is one right (a "Right") that, when exercisable, entitles the
holder of the Right to purchase one one-hundredth of a share of Series A
Preferred Stock at a purchase price (the "Purchase Price") of $120, subject to
adjustment. The number of Rights attached to each share of Common Stock is
subject to adjustment. In certain events (such as a person or group becoming the
owner of 20% or more of the Common Stock or a merger or other transaction with
an entity controlled by such an acquiring person or group), exercise of the
Rights would entitle the holders thereof (other than the acquiring person or
group) to receive Common Stock or common stock of a surviving corporation, or
cash, property or other securities, with a market value equal to twice the
Purchase Price. Accordingly, exercise of the Rights may cause substantial
dilution to a person who attempts to acquire the Company. The Rights
automatically attach to each outstanding share of Common Stock, including any
shares offered pursuant to the applicable prospectus supplement. There is no
monetary value presently assigned to the Rights, and they will not trade
separately from the Common Stock unless and until they become exercisable. The
Rights, which expire on December 31, 1997, may be redeemed at a price of $.03
per Right at any time until the tenth day following an announcement that an
individual, corporation or other entity (excluding the Company or its
affiliates) has acquired 20% or more of the outstanding Common Stock, except as
otherwise provided in the Rights Agreement. The Rights Agreement may have
certain antitakeover effects, although it is not intended to preclude any
acquisition or business combination that is at a fair price and otherwise in the
best interests of the Company and its stockholders as determined by the Board of
Directors. However, a stockholder could potentially disagree with the Board's
determination of what constitutes a fair price or the best interests of the
Company and its stockholders.
34
<PAGE>
PLAN OF DISTRIBUTION
The Company may sell the Offered Securities to or through underwriters or
dealers, and also may sell the Offered Securities directly to one or more other
purchasers or through agents.
The prospectus supplement sets forth the terms of the offering of the
particular series of Offered Securities to which such prospectus supplement
relates, including (i) the name or names of any underwriters or agents with whom
the Company has entered into arrangements with respect to the sale of such
series of Offered Securities, (ii) the initial public offering or purchase price
of such series of Offered Securities, (iii) any underwriting discounts,
commissions and other items constituting underwriters' compensation from the
Company and any other discounts, concessions or commissions allowed or reallowed
or paid by any underwriters to other dealers, (iv) any commissions paid to any
agents, (v) the net proceeds to the Company and (vi) the securities exchanges,
if any, on which such series of Offered Securities will be listed.
Unless otherwise set forth in the prospectus supplement relating to a
particular series of Offered Securities, the obligations of the underwriters to
purchase such series of Offered Securities will be subject to certain conditions
precedent and each of the underwriters with respect to such series of Offered
Securities will be obligated to purchase all of the Offered Securities of such
series allocated to it if any such Offered Securities are purchased. Any initial
public offering price and any discounts or concessions allowed or reallowed or
paid to dealers may be changed from time to time.
The Offered Securities may be offered and sold by the Company directly or
through agents designated by the Company from time to time. Unless otherwise
indicated in the applicable prospectus supplement, each such agent will be
acting on a best efforts basis for the period of its appointment. Any agent
participating in the distribution of Offered Securities may be deemed to be an
"underwriter," as that term is defined in the Securities Act of 1933, as amended
(the "Securities Act"), of the Offered Securities so offered and sold. The
Offered Securities also may be sold to dealers at the applicable price to the
public set forth in the prospectus supplement relating to a particular series of
Offered Securities who later resell to investors. Such dealers may be deemed to
be "underwriters" within the meaning of the Securities Act.
Underwriters, dealers and agents may be entitled, under agreements entered
into with the Company, to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act.
If so indicated in the prospectus supplement relating to a particular series
of Offered Securities, the Company will authorize underwriters, dealers or
agents to solicit offers by certain institutions to purchase Offered Securities
of such series from the Company pursuant to delayed delivery contracts providing
for payment and delivery at a future date. Such contracts will be subject only
to those conditions set forth in the prospectus supplement and the prospectus
supplement will set forth the commission payable for solicitation of such
contracts.
LEGAL OPINIONS
The validity of the Securities will be passed upon for the Company by
Shearman & Sterling, 599 Lexington Avenue, New York, New York 10022 and for any
underwriters, dealers or agents by Brown & Wood, One World Trade Center, New
York, New York 10048.
EXPERTS
The financial statements and financial statement schedules incorporated in
this prospectus by reference to the Company's Annual Report on Form 10-K have
been audited by Deloitte & Touche, independent auditors, as stated in their
reports, which are incorporated herein by reference, and have been so
incorporated in reliance upon the reports of such firm given upon their
authority as experts in accounting and auditing.
35
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the expenses in connection with the issuance
and distribution of the securities being registered, other than underwriting
discounts and commissions. All of the amounts shown are estimates, except the
registration fee.
<TABLE>
<S> <C>
S.E.C. registration fee........................................... $ 172,906
Printing and engraving............................................ 110,000
Legal fees and expenses........................................... 135,000
Fees of accountants............................................... 35,000
Fees of trustee................................................... 20,000
Blue sky fees and expenses........................................ 35,000
Rating agency fees................................................ 100,000
Miscellaneous..................................................... 2,094
---------
Total......................................................... $ 610,000
---------
---------
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the General Corporation Law of Delaware authorizes the
registrant to indemnify its directors and officers under specified
circumstances. Article seventh of the restated certificate of incorporation of
the registrant provides in effect that the registrant shall provide certain
indemnification to such persons.
The registrant has contracts of indemnification with its directors and
officers providing that they shall be indemnified to the fullest extent
permitted by law. The contracts also provide: (1) that, in the event of a change
in control, determinations concerning indemnification shall thereafter be made
by independent counsel, instead of the board of directors; (2) that, if
indemnification is not available, in whole or in part, contribution shall be
paid by the registrant in a proportion based upon the relative benefits to, and
relative fault of, the registrant and the director or officer in the action or
inaction, and other equitable considerations; and (3) that any legal action,
brought by or on behalf of the registrant against any director or officer party
to such contract, shall be brought within the shorter of two years from the date
of accrual of such cause of action or the applicable period of limitations for
such cause of action.
The directors and officers of the registrant are insured, under policies of
insurance maintained by the registrant, within the limits and subject to the
limitations of the policies, against certain expenses in connection with the
defense of actions, suits or proceedings, to which they are parties by reason of
being or having been such directors or officers.
Section 6 of the underwriting agreement basic provisions filed as a part of
exhibit 1 to this registration statement provides for indemnification of
directors, officers who sign the registration statement and controlling persons
of the registrant by the underwriters, and for indemnification of each
underwriter and its controlling persons by the registrant, against certain
liabilities. Similar provisions are contained in agreements entered into between
the registrant and groups of underwriters on past occasions.
ITEM 16. LIST OF EXHIBITS.
The exhibits to this registration statement are listed in the exhibit index,
which appears elsewhere herein and is incorporated herein by reference.
ITEM 17. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
(a)(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
II-1
<PAGE>
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement;
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the registration statement is on form S-3 or form S-8 and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to section 13 or section 15(d) of the Securities Exchange Act of
1934 that are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial BONA FIDE offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section 13(a)
or section 15(d) of the Securities Exchange Act of 1934 that is incorporated by
reference in this registration statement shall be deemed to be a new
registration statement relating to the securities offered thereby, and for the
offering of such securities at that time shall be deemed to be the initial BONA
FIDE offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the provisions referred to in Item 15 of this
registration statement, or otherwise, the registrant has been advised that in
the opinion of the Securities and Exchange Commission such indemnification is
against public policy as expressed in the Securities Act of 1933 and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act of 1933 and will be governed by the
final adjudication of such issue.
II-2
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
- -----------
<S> <C>
1.1 Proposed forms of terms agreement and underwriting agreement basic provisions for Debt Securities
1.2 Proposed form of terms agreement and underwriting agreement basic provisions for Equity Securities
(domestic tranche)
1.3 Proposed form of terms agreement and underwriting agreement basic provisions for Equity Securities
(international tranche)
2 Not applicable
4.1 Proposed form of senior indenture between the registrant and The Chase Manhattan Bank (National
Association)
4.2 Proposed form of fixed rate redeemable or non-redeemable senior security
4.3 Proposed form of subordinated indenture between the registrant and The Bank of New York
4.4 Proposed form of fixed rate redeemable or non-redeemable subordinated security
4.5 Proposed form of debt warrant agreement
4.6 Proposed form of common stock warrant agreement
4.7 Proposed form of currency warrant agreement (including proposed form of currency warrant certificate)
(Exhibit 4.4 to registration statement on Form S-3 no. 33-46513*)
4.8 Proposed form of other warrant agreement (including proposed form of other warrant certificate) (Exhibit
4.5 to registration statement on Form S-3 no. 33-46513*)
4.9 Rights Agreement between the registrant and Morgan Shareholder Services Trust Company, Rights Agent,
dated as of December 9, 1987 (Exhibit 4.5 to Form 10-Q for the quarter ended April 30, 1993, file no.
1-4121*)
4.10 First Amendment to Rights Agreement, between the registrant and First Chicago Trust Co. of New York,
successor Rights Agent, dated as of February 28, 1990 (Exhibit 4.6 to Form 10-Q for the quarter ended
April 30, 1993, file no. 1-4121*)
4.11 Second Amendment to Rights Agreement, between the registrant and First Chicago Trust Co. of New York,
successor Rights Agent, dated as of March 1, 1991 (Exhibit 4.7 to Form 10-Q for the quarter ended April
30, 1993, file no. 1-4121*)
4.12 Proposed form of deposit agreement (including proposed form of depositary receipt)
5 Opinion of Shearman & Sterling
8 Not applicable
12 Deere & Company and Consolidated Subsidiaries computation of ratio of earnings before fixed charges to
fixed charges (Exhibit 12 to Form 10-Q for the quarter ended April 30, 1994*)
15 Not applicable
23.1 Consent of Deloitte & Touche
23.2 Consent of Shearman & Sterling (included in their opinion filed as Exhibit 5)
24 Not applicable
25.1 Statement of eligibility of The Chase Manhattan Bank (National Association) under the Trust Indenture Act
of 1939 on Form T-1
25.2 Statement of eligibility of The Bank of New York under the Trust Indenture Act of 1939 on Form T-1
26 Not applicable
27 Not applicable
28 None
99 None
</TABLE>
- ---------
*Incorporated by reference.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the County of Rock Island, State of Illinois, on June 15, 1994.
DEERE & COMPANY
By: /s/ HANS W. BECHERER
-----------------------------------
HANS W. BECHERER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed below by the following persons in the
capacities and on the date indicated.
Each person signing below also hereby appoints Hans W. Becherer and David H.
Stowe, Jr., and each of them singly, his or her lawful attorney-in-fact with
full power to execute and file any amendments to the registration statement, and
generally to do all such things, as such attorney-in-fact may deem appropriate
to enable Deere & Company to comply with the provisions of the Securities Act of
1933 and all requirements of the Securities and Exchange Commission.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- -------------------------------------------- -------------------------------------------- ----------------------
<C> <S> <C>
/s/ HANS W. BECHERER Chairman, Director and Principal Executive
---------------------------------- Officer
HANS W. BECHERER
/s/ JOHN R. BLOCK Director
----------------------------------
JOHN R. BLOCK
/s/ REGINA E. HERZLINGER Director
----------------------------------
REGINA E. HERZLINGER
/s/ SAMUEL C. JOHNSON Director
----------------------------------
SAMUEL C. JOHNSON
/s/ ARTHUR L. KELLY Director
----------------------------------
ARTHUR L. KELLY
June 15, 1994
/s/ P.E. LEROY Senior Vice President, Principal Financial
---------------------------------- Officer and Principal Accounting Officer
P.E. LEROY
/s/ A. SANTAMARINA V. Director
----------------------------------
AGUSTIN SANTAMARINA V.
/s/ WILLIAM A. SCHREYER Director
----------------------------------
WILLIAM A. SCHREYER
/s/ D. H. STOWE, JR. Director
----------------------------------
D. H. STOWE, JR.
/s/ JOHN R. WALTER Director
----------------------------------
JOHN R. WALTER
</TABLE>
II-4
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT PAGE NO.
- ----------- -------------
<S> <C> <C>
1.1 Proposed forms of terms agreement and underwriting agreement basic provisions for Debt
Securities....................................................................................
1.2 Proposed form of terms agreement and underwriting agreement basic provisions for Equity
Securities (domestic tranche).................................................................
1.3 Proposed form of terms agreement and underwriting agreement basic provisions for Equity
Securities (international tranche)............................................................
2 Not applicable................................................................................
4.1 Proposed form of senior indenture between the registrant and The Chase Manhattan Bank
(National Association)........................................................................
4.2 Proposed form of fixed rate redeemable or non-redeemable senior security......................
4.3 Proposed form of subordinated indenture between the registrant and The Bank of New York.......
4.4 Proposed form of fixed rate redeemable or non-redeemable subordinated security................
4.5 Proposed form of debt warrant agreement.......................................................
4.6 Proposed form of common stock warrant agreement...............................................
4.7 Proposed form of currency warrant agreement (including proposed form of currency warrant
certificate) (Exhibit 4.4 to registration statement on Form S-3 no. 33-46513*)................
4.8 Proposed form of other warrant agreement (including proposed form of other warrant
certificate) (Exhibit 4.5 to registration statement on Form S-3 no. 33-46513*)................
4.9 Rights Agreement between the registrant and Morgan Shareholder Services Trust Company, Rights
Agent, dated as of December 9, 1987 (Exhibit 4.5 to Form 10-Q for the quarter ended April 30,
1993, file no. 1-4121*).......................................................................
4.10 First Amendment to Rights Agreement, between the registrant and First Chicago Trust Co. of New
York, successor Rights Agent, dated as of February 28, 1990 (Exhibit 4.6 to Form 10-Q for the
quarter ended April 30, 1993, file no. 1-4121*)...............................................
4.11 Second Amendment to Rights Agreement, between the registrant and First Chicago Trust Co. of
New York, successor Rights Agent, dated as of March 1, 1991 (Exhibit 4.7 to Form 10-Q for the
quarter ended April 30, 1993, file no. 1-4121*)...............................................
4.12 Proposed form of deposit agreement (including proposed form of depositary receipt)............
5 Opinion of Shearman & Sterling................................................................
8 Not applicable................................................................................
12 Deere & Company and Consolidated Subsidiaries computation of ratio of earnings before fixed
charges to fixed charges (Exhibit 12 to Form 10-Q for the quarter ended April 30, 1994*)......
15 Not applicable................................................................................
23.1 Consent of Deloitte & Touche..................................................................
23.2 Consent of Shearman & Sterling (included in their opinion filed as Exhibit 5).................
24 Not applicable................................................................................
25.1 Statement of eligibility of The Chase Manhattan Bank (National Association) under the Trust
Indenture Act of 1939 on Form T-1.............................................................
25.2 Statement of eligibility of The Bank of New York under the Trust Indenture Act of 1939 on Form
T-1...........................................................................................
26 Not applicable................................................................................
27 Not applicable................................................................................
28 None..........................................................................................
99 None..........................................................................................
</TABLE>
- ---------
*Incorporated by reference.
<PAGE>
EXHIBIT 1.1
DEERE & COMPANY
(A DELAWARE CORPORATION)
[TITLE OF SECURITIES]
TERMS AGREEMENT
Dated: , 19
Deere & Company
John Deere Road
Moline, Illinois 61265
Attention:
Dear Sirs:
We (the "Representative") understand that Deere & Company, a Delaware
corporation (the "Company"), proposes to issue and sell [$ aggregate
principal amount of its [Title of Debt Securities (the "Debt Securities")]]
[and] [ Warrants (the "Debt Warrants") to purchase an aggregate of $
principal amount of [Title of Warrant Securities (the "Warrant Securities")]]
([such Debt Securities and Debt Warrants being collectively hereinafter referred
to as] the "Underwritten Securities"). Subject to the terms and conditions set
forth herein or incorporated by reference herein, the underwriters named below
(the "Underwriters") offer to purchase, severally and not jointly, the
respective amounts of [Debt Securities] [and] [Debt Warrants] set forth below
opposite their respective names at the [respective] purchase price[s] set forth
below.
<TABLE>
<CAPTION>
[PRINCIPAL AMOUNT [NUMBER
OF OF
UNDERWRITER DEBT SECURITIES DEBT WARRANTS
- ------------------------------------------------------------------- -------------------- -------------
<S> <C> <C>
----------- -------------
Total $ ] $ ]
----------- -------------
----------- -------------
</TABLE>
The Underwritten Securities shall have the following terms:
[DEBT SECURITIES
Title of Debt Securities:
Currency:
Principal amount to be issued:
Current ratings: Moody's Investors Service, Inc.-- ; Standard & Poor's
Corporation-- ;
Duff and Phelps, Inc.-- .
Interest rate or formula: %
Interest payment dates:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
[Initial public offering price: %, plus accrued interest, if any, or
amortized original issue discount, if any, from , 19 .]
Purchase price: %, plus accrued interest, if any, or amortized original
issue discount, if any, from , 19 (payable in next day funds).
Other terms:
[Closing date and location:]]
<PAGE>
[DEBT WARRANTS
Number of Debt Warrants to be issued:
Debt Warrant Agent:
Issuable jointly with Debt Securities: [Yes] [No]
[Number of Debt Warrants issued
with each $ principal
amount of Debt Securities:]
[Detachable data:]
Date from which Debt Warrants are exercisable:
Date on which Debt Warrants expire:
Exercise price(s) of Debt Warrants:
Initial public offering price: $
Purchase price: $
Title of Warrant Securities:
Principal amount purchasable upon exercise of one Debt Warrant:
Interest rate: Payable:
Date of maturity:
Redemption provisions:
Sinking fund requirements:
[Delayed Delivery Contracts: [authorized] [not authorized]
[Date of delivery:
Minimum contract:
Maximum aggregate principal amount:
Fee: %]
Other terms:
[Closing date and location:]]
All the provisions contained in the document attached as Annex A hereto
entitled "Deere & Company--Debt Securities and Warrants to Purchase Debt
Securities--Underwriting Agreement Basic Provisions" are hereby incorporated by
reference in their entirety herein and shall be deemed to be a part of this
Terms Agreement to the same extent as if such provisions had been set forth in
full herein. Terms defined in such document are used herein as therein defined.
Please accept this offer no later than o'clock P.M. (New York City time)
on by signing a copy of this Terms Agreement in the space set forth
below and returning the signed copy to us.
Very truly yours,
[Name of Representative]
By _________________________________
Name:
Title:
Acting on behalf of itself and the
other named
Underwriters.
Accepted:
DEERE & COMPANY
By _________________________________
Name:
Title:
2
<PAGE>
6/14/94
ANNEX A
DEERE & COMPANY
(A DELAWARE CORPORATION)
DEBT SECURITIES AND WARRANTS TO PURCHASE DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
Deere & Company (the "Company") proposes to issue and sell up to
$700,000,000 aggregate principal amount of its senior debt securities (the
"Senior Securities") or its subordinated debt securities (the "Subordinated
Securities"), or both, or Warrants (the "Debt Warrants") to purchase Senior
Securities, or both, from time to time on terms to be determined at the time of
sale. The Senior Securities will be issued under an indenture dated as of
199 (the "Senior Indenture") between the Company and The Chase Manhattan Bank
(National Association), Trustee and the Subordinated Securities will be issued
under an indenture dated as of 199 (the "Subordinated Indenture") between
the Company and The Bank of New York, Trustee. The term "Trustee" as used herein
shall refer to either The Chase Manhattan Bank (National Association) or The
Bank of New York, as appropriate, for Senior Securities or Subordinated
Securities. The Senior Indenture and Subordinated Indenture are each sometimes
referred to as the "Indenture." The Debt Warrants will be issued under one or
more warrant agreements (the warrant agreement relating to any issue of Debt
Warrants to be sold pursuant to this Agreement will be identified in the
applicable Terms Agreement (as hereinafter defined) and is referred to herein as
the "Warrant Agreement") between the Company and the Warrant Agent identified in
such Warrant Agreement (the "Warrant Agent"). Each issue of Senior Securities,
Subordinated Securities and Debt Warrants may vary, as applicable, as to
aggregate principal amount, maturity date, interest rate or formula and timing
of payments thereof, redemption provisions, conversion provisions and sinking
fund requirements, if any, and any other variable terms which the Senior
Indenture, the Subordinated Indenture or any Warrant Agreement, as the case may
be, contemplates may be set forth in the Senior Securities, Subordinated
Securities and Debt Warrants as issued from time to time. The Senior Securities,
Subordinated Securities and the Debt Warrants may be offered either together or
separately. As used herein, "Securities" shall mean Senior Securities,
Subordinated Securities or Debt Warrants or any combination thereof; and
"Warrant Securities" shall mean the Senior Securities or Subordinated Securities
issuable upon exercise of Debt Warrants.
This is to confirm the arrangements with respect to the purchase of
Underwritten Securities from the Company by the Representative and the several
Underwriters listed in the applicable terms agreement entered into between the
Representative and the Company of which this Underwriting Agreement is Annex A
thereto (the "Terms Agreement"). With respect to any particular Terms Agreement,
the Terms Agreement, together with the provisions hereof incorporated therein by
reference, is herein referred to as the "Agreement". Terms defined in the Terms
Agreement are used herein as therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33- ) in respect of
the Company's senior and/or subordinated debt securities, warrants to purchase
senior debt securities and certain of the Company's equity securities, which
registration statement also constitutes post-effective amendment no. 1 to
registration statement No. 33-66134 relating to the Company's senior debt
securities and warrants to purchase debt securities, and has filed such
amendments thereto as may have been required to the date of the Terms Agreement.
Such registration statement and such post-effective amendment as amended have
been declared effective by the Commission, and the Senior Indenture and the
Subordinated Indenture have each been qualified under the Trust Indenture Act of
1939 (the "1939 Act"). Such registration statement and such post-effective
amendment as amended and the combined prospectuses constituting a part thereof,
including all documents incorporated therein by reference, as from time to time
amended or supplemented pursuant to the Securities Exchange Act of 1934 (the
"1934 Act"), the Securities Act of 1933 (the "1933 Act"), or otherwise, are
collectively referred to herein as
<PAGE>
the "Registration Statement" and the "Prospectus", respectively; provided,
however, that a supplement of the Prospectus contemplated by Section 3(a) (a
"Prospectus Supplement") shall be deemed to have supplemented the Prospectus
only with respect to the offering of Underwritten Securities to which it
relates.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Representative and to each Underwriter named in a Terms
Agreement as of the date thereof (the "Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the requirements
of the 1933 Act, the rules and regulations thereunder (the "Regulations")
and the 1939 Act. The Registration Statement, at the time the Registration
Statement became effective and as of the applicable Representation Date, did
not, and will not, contain any untrue statement of a material fact or omit
to state any material fact required to be stated therein or necessary to
make the statements therein not misleading. The Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, did not, and will not, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in light of the circumstances under which they were
made, not misleading; provided, however, that the representations and
warranties in this subsection shall not apply to statements in or omissions
from the Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company in writing by any
Underwriter through the Representative expressly for use in the Registration
Statement or Prospectus or to that part of the Registration Statement which
shall constitute the Statement of Eligibility and Qualification under the
1939 Act (Form T-1) of the Trustees under the Senior Indenture and the
Subordinated Indenture.
(b) The financial statements and the supporting schedules included in
the Registration Statement and Prospectus present fairly the financial
position of the Company and its subsidiaries on a consolidated basis, as at
the dates indicated, and the respective results of operations for the
periods specified, in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved.
(c) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and will
comply, as the case may be, in all material respects with the requirements
of the 1934 Act and the rules and regulations thereunder, and, when read
together and with the other information in the Prospectus, at the time the
Registration Statement became effective and at the time any amendments
thereto become effective or hereafter during the period specified in Section
3(b), did not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be stated
in or contemplated by the Registration Statement and Prospectus: (i) there
has not been any material adverse change in the financial condition of the
Company and its subsidiaries considered as one enterprise, or in the results
of operations or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business and (ii) there have not been any transactions entered into by
the Company or its subsidiaries other than (x) transactions in the ordinary
course of business and (y) transactions which are not material in relation
to the Company and its subsidiaries considered as one enterprise.
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement.
(f) The execution and delivery of this Agreement, the Indenture and the
Warrant Agreement, if any, and the consummation of the transactions
contemplated herein and therein, have
2
<PAGE>
been duly authorized by all necessary corporate action and will not result
in any breach of any of the terms, conditions or provisions of, or
constitute a default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company,
pursuant to any indenture, loan agreement, contract or other agreement or
instrument to which the Company is a party or by which the Company may be
bound or to which any of the property or assets of the Company is subject,
nor will such action result in any violation of the provisions of the
charter or by-laws of the Company or, to the best of its knowledge, any
order, rule or regulation applicable to the Company of any court or of any
federal, state or other regulatory authority or other governmental body
having jurisdiction over the Company.
(g) The Underwritten Securities have been duly authorized for issuance
and sale pursuant to this Agreement (or will have been so authorized prior
to each issuance of Underwritten Securities) and, when issued, authenticated
and delivered pursuant to the provisions of this Agreement and of the
Indenture or Warrant Agreement, or both, as the case may be, relating
thereto, against payment of the consideration therefor in accordance with
this Agreement, the Underwritten Securities or the Warrant Securities, or
both, will be valid and legally binding obligations of the Company
enforceable in accordance with their terms, except as enforcement thereof
may be limited by bankruptcy, insolvency or other laws relating to or
affecting enforcement of creditors' rights or by general equity principles
and will be entitled to the benefits of the Indenture or Warrant Agreement,
or both, as the case may be, relating thereto, and the Underwritten
Securities, the Senior Indenture, the Subordinated Indenture and the Warrant
Agreement, if any, conform in all material respects to all statements
relating thereto contained in the Prospectus.
(h) If applicable, the shares of the Company's Common Stock, par value
$1.00 per share (the "Common Stock"), issuable upon conversion of any issue
of Subordinated Securities have been duly authorized and reserved for
issuance upon such conversion by all necessary corporate action and, when
issued and delivered in accordance with the provisions of this Agreement
relating thereto, will be validly issued, fully paid and non-assessable, and
the issuance of such shares upon such conversion will not be subject to
preemptive rights.
(i) Deloitte & Touche are independent certified public accountants as
required by the 1933 Act and the Regulations.
(j) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patent rights or licenses or other rights to use
patent rights, inventions, trademarks, service marks, trade names and
copyrights necessary to conduct the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement of or conflict with asserted rights of others with respect to
any patent, patent rights, inventions, trademarks, service marks, trade
names or copyrights which, singly or in aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely affect
the conduct of the business, operations, financial condition or income of
the Company and its subsidiaries considered as one enterprise.
(k) No labor disturbance by the employees of the Company or any
subsidiary exists or is imminent which might be expected to materially
adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries, considered as one
enterprise.
Any certificate signed by any officer of the Company and delivered to the
Representative or counsel for the Underwriters in connection with an offering of
Underwritten Securities shall be deemed a representation and warranty by the
Company, as to the matters covered thereby, to each Underwriter participating in
such offering.
SECTION 2. PURCHASE AND SALE. The obligations of the Underwriters to
purchase, and the Company to sell, the Underwritten Securities shall be
evidenced by the Terms Agreement. The Terms Agreement specifies the principal
amount of the Senior Securities or Subordinated Securities, or both, and the
number of Debt Warrants, if any, the names of the Underwriters participating in
the offering (subject to substitution as provided in Section 10 hereof) and the
principal amount of Underwritten
3
<PAGE>
Securities which each Underwriter severally has agreed to purchase, the purchase
price to be paid by the Underwriters for the Underwritten Securities, the
initial public offering price, if any, of the Underwritten Securities, any
delayed delivery arrangements and any terms of the Underwritten Securities not
already specified in the Indenture or Warrant Agreement, as the case may be,
pursuant to which they are being issued (including, but not limited to,
designations, denominations, current ratings, interest rates or formulas and
payment dates, maturity dates, conversion provisions, redemption provisions and
sinking fund requirements).
The several commitments of the Underwriters to purchase Underwritten
Securities pursuant to the Terms Agreement shall be deemed to have been made on
the basis of the representations and warranties herein contained and shall be
subject to the terms and conditions herein set forth.
Payment of the purchase price for, and delivery of, any Underwritten
Securities to be purchased by the Underwriters shall be made at the office of
Brown & Wood, One World Trade Center, New York, New York 10048, or at such other
place as shall be agreed upon by the Representative and the Company, at 10:00
A.M., New York City time, on the fifth business day (unless postponed in
accordance with the provisions of Section 10) following the date of the Terms
Agreement or such other time as shall be agreed upon by the Representative and
the Company (each such time and date being referred to as a "Closing Time").
Payment shall be made to the Company by certified or official bank check or
checks in New York Clearing House or similar next day funds payable to the order
of the Company against delivery to the Representative for the respective
accounts of the Underwriters of the Underwritten Securities to be purchased by
them. The Underwritten Securities shall be in such denominations and registered
in such names as the Representative may request in writing at least two business
days prior to the applicable Closing Time. The Underwritten Securities, which
may be in temporary form, will be made available for examination and packaging
by the Representative on or before the first business day prior to Closing Time.
If authorized by the Terms Agreement, the Underwriters named therein may
solicit offers to purchase Underwritten Securities from the Company pursuant to
delayed delivery contracts ("Delayed Delivery Contracts") substantially in the
form of Exhibit A hereto with such changes therein as the Company may approve.
As compensation for arranging Delayed Delivery Contracts, the Company will pay
to the Representative at Closing Time, for the accounts of the Underwriters, a
fee equal to that percentage of the principal amount of Senior Securities or
Subordinated Securities or based on the number of Debt Warrants, as the case may
be, for which Delayed Delivery Contracts are made at Closing Time as is
specified in the Terms Agreement. Any Delayed Delivery Contracts are to be with
institutional investors of the types set forth in the Prospectus. At Closing
Time the Company will enter into Delayed Delivery Contracts (for not less than
the minimum principal amount of Senior Securities or Subordinated Securities or
number of Debt Warrants per Delayed Delivery Contract specified in the
applicable Terms Agreement) with all purchasers proposed by the Underwriters and
previously approved by the Company as provided below, but not for an aggregate
principal amount of Senior Securities or Subordinated Securities or number of
Debt Warrants in excess of that specified in the Terms Agreement. The
Underwriters will not have any responsibility for the validity or performance of
Delayed Delivery Contracts.
The Representative shall submit to the Company, at least three business days
prior to Closing Time, the names of any institutional investors with which it is
proposed that the Company will enter into Delayed Delivery Contracts and the
principal amount of Senior Securities or Subordinated Securities or number of
Debt Warrants to be purchased by each of them, and the Company will advise the
Representative, at least two business days prior to Closing Time, of the names
of the institutions with which the making of Delayed Delivery Contracts is
approved by the Company and the principal amount of Senior Securities or
Subordinated Securities or number of Debt Warrants to be covered by each such
Delayed Delivery Contract.
The principal amount of Senior Securities or Subordinated Securities or
number of Debt Warrants agreed to be purchased by the respective Underwriters
pursuant to the Terms Agreement shall be reduced by the principal amount of
Senior Securities or Subordinated Securities or number of Debt Warrants, as the
case may be, covered by Delayed Delivery Contracts, as to each Underwriter as
set forth in a written notice delivered by the Representative to the Company;
provided, however, that the
4
<PAGE>
total principal amount of Senior Securities or Subordinated Securities or number
of Debt Warrants to be purchased by all Underwriters shall be the total amount
of Senior Securities or Subordinated Securities or number of Debt Warrants
covered by the applicable Terms Agreement, less the principal amount of Senior
Securities or Subordinated Securities or number of Debt Warrants, as the case
may be, covered by Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the
Representative, and with each Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Immediately following the execution of the Terms Agreement, the
Company will prepare a Prospectus Supplement setting forth the principal
amount of Senior Securities and/or Subordinated Securities or number of Debt
Warrants, as the case may be, covered thereby and their terms not otherwise
specified in the Indenture or Warrant Agreement, as the case may be,
pursuant to which the Senior Securities, Subordinated Securities or Debt
Warrants, as the case may be, are being issued, the names of the
Underwriters participating in the offering and the principal amount of
Senior Securities or Subordinated Securities or the number of Debt Warrants,
or both, as the case may be, which each severally has agreed to purchase,
the names of the Underwriters acting as co-managers in connection with the
offering, the price at which the Underwritten Securities are to be purchased
by the Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Representative and the
Company deem appropriate in connection with the offering of the Underwritten
Securities. The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 of the
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus and such Prospectus Supplement as the
Representative shall reasonably request.
(b) If, at any time when the Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Underwritten Securities, any
event shall occur or condition exist as a result of which it is necessary,
in the opinion of counsel for the Underwriters or counsel for the Company,
to further amend or supplement the Prospectus in order that the Prospectus
will not include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein not misleading in the
light of circumstances existing at the time it is delivered to a purchaser
or if it shall be necessary, in the opinion of either such counsel, at any
such time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the 1933 Act or the
Regulations, the Company will promptly prepare and file with the Commission
such amendment or supplement, whether by filing documents pursuant to the
1934 Act or otherwise, as may be necessary to correct such untrue statement
or omission or to make the Registration Statement and Prospectus comply with
such requirements.
(c) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, earning statements (in form complying with the provisions
of Rule 158 under the 1933 Act) covering 12-month periods beginning, in each
case, not later than the first day of the Company's fiscal quarter next
following the "effective date" (as defined in Rule 158) of the Registration
Statement relating to Underwritten Securities.
(d) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Underwritten Securities, the
Company will give the Representative notice of its intention to file any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or otherwise,
will furnish the Representative with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time in
advance of filing, and will not file any such amendment or supplement or
other documents in a form to which the Representative or counsel for the
Underwriters shall reasonably object.
(e) At any time when the Prospectus is required by the 1933 Act to be
delivered in connection with sales of the Underwritten Securities, the
Company will notify the Representative immediately, and confirm such notice
in writing, of (i) the effectiveness of any amendment to the
5
<PAGE>
Registration Statement, (ii) the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or any
supplement to the Prospectus, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(f) During the period specified in (b) above, the Company will deliver
to the Representative as many signed and conformed copies of the
registration statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Representative
may reasonably request.
(g) The Company will endeavor in good faith to qualify the Underwritten
Securities for offering and sale under the applicable securities laws of
such jurisdictions as the Representative may designate; provided, however,
that the Company shall not be obligated to file any general consent to
service or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified. The Company will
maintain such qualifications in effect for as long as may be required for
the distribution of the Underwritten Securities. The Company will file such
statements and reports as may be required by the laws of each jurisdiction
in which the Underwritten Securities have been qualified as above provided.
(h) The Company, during the period when the Prospectus is required to be
delivered under the 1933 Act in connection with the sale of the Underwritten
Securities, will file promptly all documents required to be filed with the
Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Between the date of the Terms Agreement and the later of termination
of any trading restrictions or Closing Time with respect to the Underwritten
Securities covered thereby, except for the issuance of senior debt
securities upon the exercise of debt warrants, if any, the Company will not,
without the Representative's prior consent, offer to sell, or enter into any
agreement to sell, any new issue of senior debt securities of the Company
with a maturity of more than one year, including additional Securities
(other than borrowings under the Company's revolving credit agreements).
SECTION 4. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the Underwriters to purchase Underwritten Securities pursuant to
the Terms Agreement are subject to the accuracy of the representations and
warranties on the part of the Company herein contained, to the accuracy of the
statements of the Company's officers made in any certificate furnished pursuant
to the provisions hereof, to the performance by the Company of all of its
covenants and other obligations hereunder and to the following further
conditions:
(a) At the applicable Closing Time (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission,
(ii) the rating assigned by Moody's Investors Service, Inc., Standard &
Poor's Corporation and Duff and Phelps, Inc. to any long-term debt
securities of the Company as of the date of the Terms Agreement shall not
have been lowered since the execution of such Terms Agreement and (iii)
there shall not have come to the Representative's attention any facts that
would cause the Representative to believe that the Prospectus, together with
the applicable Prospectus Supplement, at the time it was required to be
delivered to a purchaser of the Underwritten Securities, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at such time, not misleading.
6
<PAGE>
(b) At the applicable Closing Time, the Representative shall have
received:
(1) The favorable opinion, dated as of the applicable Closing Time,
of Shearman & Sterling, counsel for the Company, in form and substance
satisfactory to the Representative, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware.
(ii) This Agreement and the Delayed Delivery Contracts, if any,
have been duly authorized, executed and delivered by the Company.
(iii) The Indenture and any Warrant Agreement pursuant to which
Underwritten Securities are being issued have been duly authorized,
executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Trustee, in the case of
the Indenture, and the Warrant Agent, in the case of any Warrant
Agreement, constitute a valid and binding obligation of the Company,
enforceable in accordance with their terms, except as enforcement
thereof may be limited by bankruptcy, insolvency, reorganization or
other similar laws affecting enforcement of creditors' rights
generally and except as enforcement thereof is subject to general
principles of equity (regardless of whether enforcement is considered
in a proceeding in equity or at law) and except as enforcement
thereof is subject, in the case of Underwritten Securities
denominated in a foreign currency or currency unit, to provisions of
law that require that a judgment for money damages rendered by a
court in the United States be expressed only in United States
dollars.
(iv) The Underwritten Securities have been duly authorized by the
Company and, when executed and authenticated as specified in the
Indenture, in the case of Senior Securities or Subordinated
Securities, or any Warrant Agreement, in the case of Debt Warrants,
and delivered against payment pursuant to this Agreement, the
Underwritten Securities will be valid and binding obligations of the
Company entitled to the benefits of the Indenture, in the case of
Senior Securities or Subordinated Securities, or any Warrant
Agreement, in the case of Debt Warrants, and enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and except as enforcement thereof is subject, in
the case of Underwritten Securities being denominated in a foreign
currency or currency unit, to provisions of law that require that a
judgment for money damages rendered by a court in the United States
be expressed only in United States dollars; and the Warrant
Securities, if any, have been duly authorized by the Company and,
when executed and authenticated as specified in the Indenture, and
delivered against payment pursuant to the Warrant Agreement, the
Warrant Securities will be valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable in
accordance with their terms, except as enforcement thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law) and except as enforcement thereof is subject, in
the case of Warrant Securities denominated in a foreign currency or
currency unit, to provisions of law that require that a judgment for
money damages rendered by a court in the United States be expressed
only in United States dollars.
(v) The Underwritten Securities, the Senior Indenture and the
Subordinated Indenture and any Warrant Agreement conform in all
material respects as to legal matters to the descriptions thereof in
the Prospectus.
(vi) The Indenture has been duly qualified under the 1939 Act.
7
<PAGE>
(vii) If the Underwritten Securities to which a Terms Agreement
relates are convertible into shares of Common Stock, the shares of
Common Stock issuable upon conversion thereof have been duly
authorized and reserved for issuance upon such conversion by all
necessary corporate action and when issued and delivered in
accordance with the provisions of this Agreement relating thereto,
will be validly issued, fully paid and non-assessable, and the
issuance of such shares upon such conversion will not be subject to
preemptive rights.
(viii) The Registration Statement is effective under the 1933 Act
and, to the best of their knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) The Registration Statement and Prospectus, and each amendment
or supplement thereto (except for the financial statements and other
financial data included therein or omitted therefrom and the
Statement of Eligibility and Qualification of the Trustee on Form
T-1, as to which such counsel need express no opinion), excluding the
documents incorporated by reference therein, as of their respective
effective or issue dates, appear on their face to have been
appropriately responsive in all material respects to the requirements
of the 1933 Act, the 1939 Act and the Regulations.
(x) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial data
included therein or omitted therefrom, as to which such counsel need
express no opinion), as of the dates they were filed with the
Commission, appear on their face to have been appropriately
responsive in all material respects to the requirements of the 1934
Act and the rules and regulations of the Commission thereunder.
(xi) The execution and delivery of this Agreement, the fulfillment
of the terms herein set forth and the consummation of the
transactions herein contemplated will not conflict with the charter
or by-laws of the Company.
Such opinion shall also state that such counsel has not verified, and is
not passing upon and does not assume any responsibility for, the
accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus, other than those mentioned in
(v) of subsection 4(b)(1) of this Section. Such counsel has, however,
generally reviewed and discussed such statements with certain officers
of the Company and its auditors. In the course of such review and
discussion, no facts have come to such counsel's attention that lead
such counsel to believe (i) that the Registration Statement or any
amendment thereto (except for the financial statements and other
financial data included therein or omitted therefrom and the Statement
of Eligibility and Qualification of the Trustee on Form T-1, as to which
such counsel need not comment), at the time the Registration Statement
or any such amendment became effective or at the time an annual report
on Form 10-K was filed (whichever is later), or at the date of the Terms
Agreement, contained an untrue statement of a material fact or omitted
to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or (ii) that the Prospectus
or any amendment or supplement thereto (except for the financial
statements and other financial data included therein or omitted
therefrom, as to which such counsel need not comment), at the time the
Prospectus was issued, at the time any such amended or supplemented
Prospectus was issued or at the applicable Closing Time, included or
includes an untrue statement of a material fact or omitted or omits to
state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not
misleading.
(2) The favorable opinion, dated as of the applicable Closing Time,
of the General Counsel of the Company to the effect that (i) the Company
is duly qualified to transact business and is in good standing in the
states in which its manufacturing plants are located, and (ii) the
execution and delivery of this Agreement, the Indenture and any Warrant
Agreement, the fulfillment of the terms herein and therein set forth and
the consummation
8
<PAGE>
of the transactions herein and therein contemplated will not conflict
with or constitute a breach of, or default under, the charter or by-laws
of the Company or any agreement, indenture or other instrument known to
such counsel of which the Company or any of its subsidiaries is a party
or by which it or any of them is bound, or any law, administrative
regulation or administrative or court order known to him to be applicable
to the Company.
(3) The favorable opinion, dated as of the applicable Closing Time,
of Brown & Wood, counsel for the Underwriters, with respect to the
matters set forth in (i) to (vi), inclusive, and (viii) and (ix), and the
last paragraph, of subsection (b)(1) of this Section.
(c) At the applicable Closing Time, there shall not have been, since the
date of the Terms Agreement or since the respective dates as of which
information is given in the Registration Statement, any material adverse
change in the financial condition of the Company and its subsidiaries
considered as one enterprise, or in the results of operations or business
prospects of the Company and its subsidiaries considered as one enterprise,
whether or not arising in the ordinary course of business, and the
Representative shall have received a certificate of the President or a Vice
President of the Company, dated as of such Closing Time, to the effect that
there has been no such material adverse change and to the effect that the
other representations and warranties of the Company contained in Section 1
are true and correct with the same force and effect as though such Closing
Time were a Representation Date.
(d) The Representative shall have received from Deloitte & Touche or
other independent certified public accountants acceptable to the
Representative a letter, dated as of the date of the Terms Agreement and
delivered at such time, in form heretofore agreed to.
(e) The Representative shall have received from Deloitte & Touche or
other independent certified public accountants acceptable to the
Representative a letter, dated as of the applicable Closing Time,
reconfirming or updating the letter required by subsection (d) of this
Section to the extent that may be reasonably requested by the
Representative.
(f) At the applicable Closing Time, counsel for the Underwriters shall
have been furnished with such documents and opinions as they may reasonably
require for the purpose of enabling them to pass upon the issuance and sale
of the Underwritten Securities as herein contemplated and related
proceedings or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Underwritten Securities as
herein contemplated shall be satisfactory in form and substance to the
Representative and counsel for the Underwriters.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Representative by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
SECTION 5. PAYMENT OF EXPENSES. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement and all amendments thereto,
and the printing of this Agreement and the Terms Agreement, (ii) the
preparation, issuance and delivery of the Underwritten Securities to the
Underwriters and any Warrant Securities issuable upon exercise of Debt Warrants,
(iii) the fees and disbursements of the Company's counsel and accountants, (iv)
the qualification of the Underwritten Securities and any Warrant Securities
issuable upon exercise of Debt Warrants under securities laws in accordance with
the provisions of Section 3(g), including filing fees and the fee and
disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of any Blue Sky Surveys and Legal Investment
Surveys, (v) the printing and delivery to the Underwriters in quantities as
hereinabove stated of copies of the registration statements and all amendments
thereto, of the Registration Statement and any amendments thereto, and of the
Prospectus and any amendments or supplements thereto, (vi) the printing and
delivery to the Underwriters of copies of the Indenture, the
9
<PAGE>
Warrant Agreement, if any, and any Blue Sky Surveys and Legal Investment
Surveys, (vii) the fees, if any, of rating agencies and (viii) the fees and
expenses, if any, incurred in connection with the listing of the Underwritten
Securities or any Warrant Securities on any national securities exchange.
If this Agreement is terminated by the Representative in accordance with the
provisions of Section 4 or Section 9(i), the Company shall reimburse the
Underwriters named in such Terms Agreement for all of their out-of-pocket
expenses, including the reasonable fees and disbursements of counsel for the
Underwriters.
SECTION 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each Underwriter and each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any amendment
thereto), or any omission or alleged omission therefrom, of a material fact
required to be stated therein or necessary to make the statements therein
not misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom, of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission or such alleged untrue statement or
omission was made in reliance upon and in conformity with written
information furnished to the Company by or on behalf of any Underwriter
through the Representative expressly for use in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto), or was made in reliance upon the Form T-1 of either of the
Trustees under the Senior Indenture and the Subordinated Indenture;
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above.
In no case shall the Company be liable under this indemnity agreement with
respect to any claim made against any Underwriter or any such controlling person
unless the Company shall be notified in writing of the nature of the claim
within a reasonable time after the assertion thereof, but failure so to notify
the Company shall not relieve it from any liability which it may have otherwise
than on account of this indemnity agreement. The Company shall be entitled to
participate at its own expense in the defense, or if it so elects within a
reasonable time after receipt of such notice, to assume the defense for any suit
brought to enforce any such claim, but if the Company elects to assume the
defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the Underwriter or Underwriters or controlling person or
persons, defendant or defendants in any suit so brought. In the event that the
Company elects to assume the defense of any such suit and retains such counsel,
the Underwriter or Underwriters or controlling person or persons, defendant or
defendants in the suit shall bear the fees and expenses of any additional
counsel thereafter retained by them. In the event that the parties to any such
action (including impleaded parties) include both the Company and one or more
Underwriters and any such Underwriter shall have been advised by counsel chosen
by it and satisfactory to the Company that there may be one or more legal
defenses available to it which are different from or additional to those
available to the Company, the Company shall not have the right to assume the
defense of such action on behalf of such Underwriter and will reimburse such
Underwriter and any person controlling such Underwriter as aforesaid for the
reasonable fees and expenses of any counsel retained by them, it being
understood that the Company shall not, in connection with any one action
10
<PAGE>
or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys for all such
Underwriters and controlling persons, which firm shall be designated in writing
by the Representative. The Company agrees to notify the Representative within a
reasonable time of the assertion of any claim against it, any of its officers or
directors or any person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act, in connection with the sale of the Underwritten
Securities.
(b) Each Underwriter severally agrees that it will indemnify and hold
harmless the Company and each of its officers who signs the Registration
Statement and each of its directors and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnity from the Company, but only with respect to statements or
omissions made in the Prospectus (or any amendment or supplement thereto) or the
Registration Statement (or any amendment thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such Underwriter through the Representative expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). In case any action shall be brought against
the Company or any person so indemnified based on the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) and in respect of which indemnity may be sought against any
Underwriter, such Underwriter shall have the rights and duties given to the
Company, and the Company and each person so indemnified shall have the rights
and duties given to the Underwriters, by the provisions of subsection (a) of
this Section.
SECTION 7. CONTRIBUTION. If the indemnification provisions provided in
Section 6 above should under applicable law be unenforceable in respect of any
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
liabilities, claims, damages or expenses (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Underwriters from the offering of the Underwritten Securities
and also the relative fault of the Company and the Underwriters in connection
with the statements or omissions which resulted in such losses, liabilities,
claims, damages or expenses (or actions in respect thereof), as well as any
other relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same proportion as the
total net proceeds from the offering (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the Prospectus, bear to the aggregate
public offering price of the Underwritten Securities. The relative fault shall
be determined by reference to, among other things, whether the indemnified party
failed to give the notice required under Section 6 above including the
consequences of such failure, and whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission of the Company and the
Underwriters, directly or through the Representative of the Underwriters. The
Company and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by per capita allocation
(even if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this Section 7. The amount paid or payable
by an indemnified party as a result of the losses, liabilities, claims, damages
or expenses (or actions in respect thereof) referred to above in this Section 7
shall be deemed to include any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 7, no
Underwriter shall be required to contribute any amount in excess of the amount
by which the total price at which the Underwritten Securities underwritten by it
and distributed to the public were offered to the public exceeds the amount of
any damages which such Underwriter has otherwise been required to pay by reason
of such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 1933 Act)
11
<PAGE>
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations in this Section 7 to
contribute are several in proportion to their respective underwriting
obligations and not joint.
The obligations of the Company under this Section 7 shall be in addition to
any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any Underwriter
within the meaning of Section 15 of the 1933 Act; and the obligations of the
Underwriters under this Section 7 shall be in addition to any liability which
the respective Underwriters may otherwise have and shall extend, upon the same
terms and conditions, to each officer who signs the Registration Statement and
each director of the Company and to each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any Underwriter or controlling person, or by or on behalf of the Company, and
shall survive delivery of any Underwritten Securities to the Underwriters.
SECTION 9. TERMINATION. The Representative may terminate this Agreement,
immediately upon notice to the Company, at any time prior to the applicable
Closing Time (i) if there has been, since the date of the Terms Agreement or
since the respective dates as of which information is given in the Registration
Statement, any material adverse change in the financial condition of the Company
and its subsidiaries considered as one enterprise, or in the results of
operations or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the Representative,
impracticable to market the Underwritten Securities or enforce contracts for the
sale of the Underwritten Securities, or (iii) if trading in the Common Stock of
the Company has been suspended by the Commission or a national securities
exchange or if trading on either the American Stock Exchange or the New York
Stock Exchange has been suspended, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices for securities have been required, by
either of said exchanges or by order of the Commission or any other governmental
authority, or if a banking moratorium has been declared by either Federal or New
York authorities. In the event of any such termination, (x) the covenants set
forth in Section 3 with respect to any offering of Underwritten Securities shall
remain in effect so long as any Underwriter retains beneficial ownership of any
such Underwritten Securities purchased from the Company pursuant to the
applicable Terms Agreement and (y) the covenant set forth in Section 3(c), the
provisions of Section 5, the indemnity agreement set forth in Section 6, the
contribution provisions set forth in Section 7 and the provisions of Sections 8
and 13 shall remain in effect.
SECTION 10. DEFAULT. If one or more of the Underwriters participating in
an offering of Securities shall fail at the applicable Closing Time to purchase
the Underwritten Securities which it or they are obligated to purchase under the
applicable Terms Agreement (the "Defaulted Securities"), then the Representative
shall have the right, within 24 hours thereafter, to make arrangements for one
or more of the non-defaulting Underwriters, or any other underwriters, to
purchase all, but not less than all, of the Defaulted Securities in such amounts
as may be agreed upon and upon the terms herein set forth. If, however, during
such 24 hours the Representative shall not have completed such arrangements for
the purchase of all of the Defaulted Securities, then:
(a) if the aggregate principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of the Underwritten Securities
to be purchased pursuant to the Terms Agreement, the non-defaulting
Underwriters named in such Terms Agreement shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations thereunder bear to the underwriting obligations of
all such non-defaulting Underwriters, or
12
<PAGE>
(b) if the aggregate principal amount of Defaulted Securities exceeds
10% of the aggregate principal amount of the Underwritten Securities to be
purchased pursuant to such Terms Agreement, the Terms Agreement shall
terminate without any liability on the part of any non-defaulting
Underwriters or the Company.
As used in this Section only, the aggregate amount or aggregate principal
amount of Underwritten Securities shall mean the aggregate principal amount of
any Senior Securities plus the public offering price of any Debt Warrants
included in the relevant Underwritten Securities.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement and the Terms Agreement.
In the event of a default by any Underwriter or Underwriters as set forth in
this Section, either the Representative or the Company shall have the right to
postpone the applicable Closing Time for a period not exceeding seven days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representative; notices to the Company
shall be directed to it at John Deere Road, Moline, Illinois 61265, Attention:
Treasurer.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Company and any Underwriter who becomes a party hereto, and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto or thereto and their respective successors and the
controlling persons and officers and directors referred to in Sections 6 and 7
and their heirs and legal representatives, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the parties and their respective
successors and said controlling persons and officers and directors and their
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Underwritten Securities from any Underwriter shall
be deemed to be a successor by reason merely of such purchase.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State.
SECTION 14. COUNTERPARTS. The Terms Agreement may be executed in one or
more counterparts, and if executed in more than one counterpart the executed
counterparts shall constitute a single instrument.
13
<PAGE>
EXHIBIT A
DEERE & COMPANY
(A DELAWARE CORPORATION)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
, 19
DEERE & COMPANY
John Deere Road
Moline, Illinois 61265
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Deere & Company (the
"Company"), and the Company agrees to sell to the undersigned on , 19
(the "Delivery Date"),
principal amount of the Company's [insert title of security] (the "Securities"),
offered by the Company's Prospectus dated , 19 , as supplemented by
its Prospectus Supplement dated , 19 , receipt of which is hereby
acknowledged at a purchase price of [ % of the principal amount thereof, plus
accrued interest from , 19 ,] [and $ per Warrant, respectively]
to the Delivery Date, and on the further terms and conditions set forth in this
contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
, on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before , 19 , shall
have sold to the Underwriters of the Securities (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Terms Agreement dated , 19 between the Company and the Underwriters.
The obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
A-1
<PAGE>
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery Contracts
for an aggregate principal amount of Securities in excess of $ and that
the acceptance of any Delayed Delivery Contract is in the Company's sole
discretion and, without limiting the foregoing, need not be on a first-come,
first-served basis. If this contract is acceptable to the Company, it is
requested that the Company sign the form of acceptance on a copy hereof and mail
or deliver a signed copy hereof to the undersigned at its address set forth
below. This will become a binding contract between the Company and the
undersigned when such copy is so mailed or delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
______________________________________
(NAME OF PURCHASER)
BY ___________________________________
(TITLE)
______________________________________
______________________________________
(ADDRESS)
Accepted as of the date first above
written.
DEERE & COMPANY
BY ___________________________________
(TITLE)
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
<TABLE>
<CAPTION>
TELEPHONE NO.
(INCLUDING
NAME AREA CODE)
- -------------------------------------------------------- --------------------------------------------------------
<S> <C>
</TABLE>
A-2
<PAGE>
EXHIBIT 1.2
DEERE & COMPANY
(A DELAWARE CORPORATION)
COMMON STOCK
(PAR VALUE $1.00 PER SHARE)
U.S. TERMS AGREEMENT
Dated: 199
Deere & Company
John Deere Road
Moline, Illinois 61265-8098
Attention:
Dear Sirs:
We (collectively, the "U.S. Representatives") understand that Deere &
Company, a Delaware corporation (the "Company"), proposes to issue and sell
shares of its [Common Stock, $1.00 par value] [Preferred Stock, $1.00 par value]
(the "Underwritten Securities"), as set forth below. Subject to the terms and
conditions set forth or incorporated by reference herein, collectively, the
underwriters named below (the "U.S. Underwriters") offer to purchase, severally
and not jointly, the respective number of shares of Initial Underwritten
Securities (as defined in the U.S. Underwriting Agreement Basic Provisions
referenced below) set forth below opposite their respective names, and a
proportionate share of Option Securities (as defined in the U.S. Underwriting
Agreement Basic Provisions referenced below), to the extent any are purchased,
at the purchase price set forth below.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF INITIAL
U.S. UNDERWRITER UNDERWRITTEN SECURITIES
- --------------------------------------------------------------------------- ---------------------------
<S> <C>
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
NUMBER OF SHARES OF INITIAL
U.S. UNDERWRITER UNDERWRITTEN SECURITIES
- --------------------------------------------------------------------------- ---------------------------
<S> <C>
----------
Total..................................................................
----------
----------
</TABLE>
The Underwritten Securities shall have the following terms:
Title of Securities:
Number of Shares:
Public offering price per share:
Purchase price per share:
Number of Option Securities (as defined in the
U.S. Underwriting Agreement Basic
Provisions referenced below):
Closing date and location:
2
<PAGE>
[It is understood that the Company is concurrently entering into an
agreement dated the date hereof providing for the offering by the Company
outside the United States and Canada of an aggregate of shares of
, par value $1.00 per share, through arrangements with certain
international managers of such shares.]
All the provisions contained in the document attached as Annex A hereto
entitled "Deere & Company -- Common Stock ($1.00 par value) and Preferred Stock
($1.00 par value) -- U.S. Underwriting Agreement Basic Provisions" are hereby
incorporated by reference in their entirety herein and shall be deemed to be a
part of this Terms Agreement to the same extent as if such provisions had been
set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than P.M. (New York City time) on
, 199 by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
[Name of Representative]
By:
By: __________________________________
Acting on behalf of themselves and the
other named U.S. Underwriters
Accepted:
DEERE & COMPANY
By: __________________________________
Name:
Title:
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6/14/94
ANNEX A
DEERE & COMPANY
(A DELAWARE CORPORATION)
COMMON STOCK ($1.00 PAR VALUE)
AND
PREFERRED STOCK ($1.00 PAR VALUE)
U.S. UNDERWRITING AGREEMENT BASIC PROVISIONS
Deere & Company (the "Company") proposes to issue and sell shares of Common
Stock, $1.00 par value ("Common Stock"), or Preferred Stock, $1.00 par value
(the "Preferred Shares"), or both, from time to time in one or more offerings on
terms determined at the time of sale. The Preferred Shares may be offered in the
form of depositary shares (the "Depositary Shares") represented by depositary
receipts (the "Depositary Receipts"). The Common Stock and, if applicable, the
Preferred Shares, together, if applicable, with the Depositary Shares and the
Depositary Receipts are hereinafter referred to as the "Securities". Each issue
of Preferred Shares may vary as to the specific number of shares, title, stated
value and liquidation preference, issuance price, ranking, dividend rate or
rates (or method of calculation), dividend payment dates, any redemption or
sinking fund requirements, any conversion provisions and any other variable
terms as set forth in the applicable certificate of designation (each, a
"Certificate of Designation") relating to such Preferred Shares.
This is to confirm the arrangements with respect to the purchase of
Underwritten Securities (as defined in Section 2 hereof) from the Company by the
U.S. Representative or Representatives (collectively, the "U.S. Representative")
and the several U.S. Underwriters (collectively, the "U.S. Underwriters") listed
in the applicable terms agreement entered into between the U.S. Representative
and the Company of which this U.S. Underwriting Agreement Basic Provisions is
Annex A thereto (the "Terms Agreement"). With respect to any particular Terms
Agreement, such Terms Agreement, together with the provisions hereof
incorporated therein by reference, is herein referred to as the "Agreement".
Terms defined in the applicable Terms Agreement are used herein as therein
defined.
The applicable Terms Agreement contemplates that the Company will
concurrently enter into an International Underwriting Agreement Basic Provisions
and related Terms Agreement (collectively, the "International Underwriting
Agreement") providing for the offering of Securities outside the United States
and Canada (the "International Securities") through arrangements with one or
more lead managers (collectively, the "Lead Manager") and the several
international managers (the "International Manager") listed therein.
The following definitions shall apply: (i) the term "International
Securities" shall consist of (a) the International Securities which the several
International Managers initially agreed to purchase (the "Initial International
Securities") and (b) the International Securities which the several
International Managers may purchase upon exercise of such over-allotment option
(the "International Option Securities"), if any, (ii) the U.S. Underwriters and
the International Managers shall hereinafter collectively be referred to as the
"Underwriters", (iii) the Initial Underwritten Securities (as defined in Section
2 hereof) and the Initial International Securities shall hereinafter
collectively be referred to as the "Initial Securities", (iv) the Option
Underwritten Securities (as defined in Section 2 hereof) and the International
Option Securities shall hereinafter be collectively referred to as the "Option
Securities" and (v) the Initial Securities and the Option Securities shall
hereinafter be collectively referred to as the "Offered Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33- ) in respect of
the Securities and certain of the Company's senior and/or subordinated debt
securities ("Debt Securities") and warrants to purchase Debt Securities and
certain other warrants, which registration statement also constitutes post-
<PAGE>
effective amendment No. 1 to registration statement No. 33-66134 relating to the
Company's debt securities and warrants to purchase debt securities, and has
filed such amendments thereto as may have been required to the date of the Terms
Agreement. Such registration statement and such post-effective amendment, as
amended, have been declared effective by the Commission. Such registration
statement and such post-effective amendment, as amended, and the combined
prospectus constituting a part thereof and the supplements to the prospectus
(each, a "Prospectus Supplement") relating to the offering of the Offered
Securities, including all documents incorporated therein by reference, as from
time to time amended or supplemented pursuant to the Securities Exchange Act of
1934 (the "1934 Act"), the Securities Act of 1933 (the "1933 Act"), or otherwise
(whether or not the prospectus or the applicable Prospectus Supplement is
required to be filed with the Commission pursuant to Rule 424(b) of the
Regulations, as defined below), are collectively referred to herein as the
"Registration Statement" and the "Prospectus"(1) , respectively; provided,
however, that any Prospectus Supplement shall be deemed to supplement the
Prospectus only with respect to the offering of Offered Securities to which it
relates.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the U.S. Representative and to each U.S. Underwriter named in a
Terms Agreement as of the date thereof (the "Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the requirements
of the 1933 Act, the rules and regulations thereunder (the "Regulations")
and the Trust Indenture Act of 1939 (the "1939 Act"). The Registration
Statement, at the time the Registration Statement became effective and as of
the applicable Representation Date, did not, and will not, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, as of the applicable Representation Date
(unless the term "Prospectus" refers to a prospectus which has been provided
to the U.S. Underwriters or the International Managers, as the case may be,
by the Company for use in connection with the offering of the Offered
Securities which differs from the Prospectus on file with the Commission, as
of such Representation Date, in which case at the time such prospectus is
first provided and at Closing Time (as defined in Section 2 hereof), did
not, and will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any U.S. Underwriter
through the U.S. Representative or any International Manager through the
Lead Manager expressly for use in the Registration Statement or Prospectus.
(b) The financial statements and the supporting schedules included in
the Registration Statement and Prospectus present fairly the financial
position of the Company and its subsidiaries on a consolidated basis, as at
the dates indicated, and the respective results of operations for the
periods specified, in conformity with generally accepted accounting
principles applied on a consistent basis during the periods involved.
(c) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and will
comply, as the case may be, in all material respects with the requirements
of the 1934 Act and the rules and regulations thereunder, and, when read
together and with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time any amendments thereto
become effective
- ------------------------
(1) The term "Prospectus" shall be deemed to refer to the prospectus relating
to the offering of the Underwritten Securities (the "U.S. Prospectus") and
the prospectus relating to the offering of the International Securities
(the "International Prospectus").
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<PAGE>
or thereafter during the period specified in Section 3(b) and at Closing
Time, did not and will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be stated
in or contemplated by the Registration Statement and Prospectus: (i) there
has not been any material adverse change in the financial condition of the
Company and its subsidiaries considered as one enterprise, or in the results
of operations or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, (ii) there have not been any transactions entered into by the
Company or its subsidiaries other than (x) transactions in the ordinary
course of business and (y) transactions which are not material in relation
to the Company and its subsidiaries considered as one enterprise, and (iii)
except for regular quarterly dividends on the Common Stock and any Preferred
Shares that may be outstanding, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement.
(f) The execution and delivery of this Agreement, the International
Underwriting Agreement and the Deposit Agreement (as defined in (h) below),
if applicable, and the consummation of the transactions contemplated herein
and therein, have been duly authorized by all necessary corporate action and
will not result in any breach of any of the terms, conditions or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company, pursuant to any indenture, loan agreement, contract or other
agreement or instrument to which the Company is a party or by which the
Company may be bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or, to the best of its
knowledge, any order, rule or regulation applicable to the Company of any
court or of any federal, state or other regulatory authority or other
governmental body having jurisdiction over the Company.
(g) The description of the authorized, issued and outstanding capital
stock of the Company under "Description of Outstanding Capital Stock" and
"Capitalization" in the Prospectus (except for subsequent issuances, if any,
pursuant to reservations or agreements referred to in the Prospectus) is
accurate as of the date indicated in such sections.
(h) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and, if applicable, the deposit of the Preferred Shares
comprising part or all of the Underwritten Securities by or on behalf of the
Company in accordance with the provisions of a Deposit Agreement (each, a
"Deposit Agreement"), among the Company, the financial institution named in
the Deposit Agreement (the "Depositary") and the holders of the Depositary
Receipts issued thereunder, have, as of the applicable Representation Date,
been duly authorized by the Company and such Underwritten Securities have
been duly authorized for issuance and sale pursuant to this Agreement (or
will have been so authorized prior to each issuance of Underwritten
Securities) and such Underwritten Securities, when issued and delivered by
the Company pursuant to this Agreement against payment of the consideration
set forth in this Agreement, will be validly issued, fully paid and
non-assessable; the Underwritten Securities being sold pursuant to the
applicable Terms Agreement and, if applicable, the Depositary Receipts,
conform in all material respects to all statements relating thereto
contained in the Prospectus; and the issuance of the Underwritten Securities
is not subject to preemptive or other similar rights.
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<PAGE>
(i) If the Underwritten Securities are Common Stock or Preferred Shares
convertible into Common Stock, the shares of issued and outstanding capital
stock have been duly authorized and validly issued and are fully paid and
non-assessable and such capital stock conforms in all material respects as
to legal matters to the description thereof in the Prospectus.
(j) If applicable, the shares of Common Stock issuable upon conversion
of any issue of the Preferred Shares have been duly authorized and reserved
for issuance upon such conversion by all necessary corporate action and when
issued upon such conversion, will be validly issued, fully paid and
non-assessable, and the issuance of such shares upon such conversion will
not be subject to preemptive rights.
(k) If applicable, the Deposit Agreement will have been duly authorized,
executed and delivered by the Company prior to the issuance of any
applicable Underwritten Securities, and constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its terms,
except as enforceability thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles.
(l) If applicable, upon execution and delivery thereof pursuant to the
terms of the Deposit Agreement, the persons in whose names the Depositary
Receipts are registered will be entitled to the rights specified therein and
in the Deposit Agreement, except as enforceability of such rights may be
limited by bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity principles.
(m) Deloitte & Touche are independent certified public accountants as
required by the 1933 Act and the Regulations.
(n) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patent rights or licenses or other rights to use
patent rights, inventions, trademarks, service marks, trade names and
copyrights necessary to conduct the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement or of conflict with asserted rights of others with respect to
any patent, patent rights, inventions, trademarks, service marks, trade
names or copyrights which, singly or in aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely affect
the conduct of the business, operations, financial condition or income of
the Company and its subsidiaries considered as one enterprise.
(o) No labor disturbance by the employees of the Company or any
subsidiary exists or is imminent which might be expected to materially
adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries, considered as one
enterprise.
Any certificate signed by any officer of the Company and delivered to the
U.S. Representative or counsel for the U.S. Underwriters in connection with an
offering of Underwritten Securities shall be deemed a representation and
warranty by the Company, as to the matters covered thereby, to each U.S.
Underwriter participating in such offering.
SECTION 2. PURCHASE AND SALE. The obligations of the U.S. Underwriters to
purchase, and the Company to sell, the Underwritten Securities shall be
evidenced by the applicable Terms Agreement. Such Terms Agreement shall specify
the number of Underwritten Securities to be initially issued (the "Initial
Underwritten Securities"), whether the Initial Underwritten Securities shall be
in the form of Depositary Shares and the fractional amount of Preferred Shares
represented by each Depositary Share, the names of the U.S. Underwriters
participating in such offering (subject to substitution as provided in Section
10 hereof), the number of Initial Underwritten Securities which each such U.S.
Underwriter severally agrees to purchase, the name of each U.S. Underwriter
acting as U.S. Representative, in connection with such offering, the price at
which the Initial Underwritten Securities are to be purchased by the U.S.
Underwriters from the Company, the initial public offering price, the time and
place of delivery and payment, any delayed delivery arrangements and any other
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<PAGE>
terms of the Initial Underwritten Securities pursuant to which they are being
issued (including, but not limited to, designations, conversion provisions,
redemption provisions and sinking fund requirements). In addition, the
applicable Terms Agreement shall specify whether the Company has agreed to grant
to the U.S. Underwriters an option to purchase additional Underwritten
Securities subject to such option (the "Option Underwritten Securities"). As
used herein, the "Underwritten Securities" shall include the Initial
Underwritten Securities and all or any portion of the Option Underwritten
Securities agreed to be purchased by the U.S. Underwriters.
The several commitments of the U.S. Underwriters to purchase Underwritten
Securities pursuant to the applicable Terms Agreement shall be deemed to have
been made on the basis of the representations and warranties herein contained
and shall be subject to the terms and conditions herein set forth.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company may grant, if
so provided in the applicable Terms Agreement relating to any Initial
Underwritten Securities, an option to the U.S. Underwriters named in such Terms
Agreement, severally and not jointly, to purchase up to the number of Option
Securities set forth therein at the same price per share as is applicable to the
Initial Securities. Such option, if granted, will expire 30 days or such lesser
number of days as may be specified in such Terms Agreement after the
Representation Date relating to the Initial Underwritten Securities, and may be
exercised by the U.S. Representative on behalf of both the U.S. Underwriters and
the International Managers in whole or in part from time to time only for the
purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the U.S.
Representative to the Company setting forth the number of Option Securities as
to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the U.S.
Representative but shall not be later than seven full business days and not
earlier than two full business days after the exercise of said option, unless
otherwise agreed upon by the U.S. Representative and the Company. If the option
is exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities each such Underwriter has severally agreed to purchase as set
forth in the applicable Terms Agreement bears to the total number of Initial
Securities, subject to such adjustments as the U.S. Representative in its
discretion shall make to eliminate any sales or purchases of fractional shares.
Payment of the purchase price for, and delivery of, any Initial Underwritten
Securities to be purchased by the U.S. Underwriters shall be made at the office
of Brown & Wood, One World Trade Center, New York, New York 10048-0557, or at
such other place as shall be agreed upon by the U.S. Representative and the
Company, at 10:00 A.M., New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section 10 hereof) following the
date of the applicable Terms Agreement or such other time as shall be agreed
upon by the U.S. Representative and the Company (each such time and date being
referred to as a "Closing Time"). In addition, in the event that the
over-allotment option described in the immediately preceding paragraph is
exercised, payment of the purchase price for, and delivery of certificates
representing, the related Option Securities, shall be made at the
above-mentioned office of Brown & Wood, or at such other place as shall be
agreed upon by the U.S. Representative and the Company on each Date of Delivery
as specified in the notice from the U.S. Representative to the Company. Payment
shall be made to the Company by certified or official bank check or checks in
New York Clearing House or similar next day funds payable to the order of the
Company against delivery to the U.S. Representative for the respective accounts
of the U.S. Underwriters of the Underwritten Securities to be purchased by them.
Certificates for such Underwritten Securities or, if applicable, Depositary
Receipts evidencing the Depositary Shares shall be in such denominations and
registered in such names as the U.S. Representative may request in writing at
least two business days prior to the applicable Closing Time or Date of
Delivery, as the case
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<PAGE>
may be. Such certificates or receipts will be made available for examination and
packaging by the U.S. Representative on or before the first business day prior
to Closing Time or Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the U.S. Underwriters named
therein may solicit offers to purchase Underwritten Securities from the Company
pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit A hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to the U.S. Representative at Closing Time, for the
accounts of the U.S. Underwriters, a fee specified in the applicable Terms
Agreement for each of the Underwritten Securities for which Delayed Delivery
Contracts are made at Closing Time as is specified in such Terms Agreement. Any
Delayed Delivery Contracts are to be with institutional investors of the types
set forth in the applicable Prospectus Supplement. At Closing Time, the Company
will enter into Delayed Delivery Contracts (for not less than the minimum number
of Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the U.S. Underwriters and previously
approved by the Company as provided below, but not for an aggregate number of
Underwritten Securities in excess of that specified in such Terms Agreement. The
U.S. Underwriters will not have any responsibility for the validity or
performance of Delayed Delivery Contracts.
If applicable, the U.S. Representative shall submit to the Company, at least
three business days prior to Closing Time, the names of any institutional
investors with which it is proposed that the Company will enter into Delayed
Delivery Contracts and the number of Underwritten Securities to be purchased by
each of them, and the Company will advise the U.S. Representative, at least two
business days prior to Closing Time, of the names of the institutions with which
the making of Delayed Delivery Contracts is approved by the Company and the
number of Underwritten Securities to be covered by each such Delayed Delivery
Contract.
The number of Underwritten Securities agreed to be purchased by the
respective U.S. Underwriters pursuant to the applicable Terms Agreement shall be
reduced by the number of Underwritten Securities covered by Delayed Delivery
Contracts, as to each U.S. Underwriter as set forth in a written notice
delivered by the U.S. Representative to the Company; provided, however, that the
total number of Underwritten Securities to be purchased by all U.S. Underwriters
shall be the total number of Underwritten Securities covered by the applicable
Terms Agreement, less the number of Underwritten Securities covered by Delayed
Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the U.S.
Representative, and with each U.S. Underwriter participating in the offering of
Underwritten Securities, as follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth
the number of Underwritten Securities covered thereby and their terms not
otherwise set forth in the Prospectus, the names of the U.S. Underwriters
participating in the offering and the number of Underwritten Securities
which each severally has agreed to purchase, the name of each U.S.
Underwriter acting as U.S. Representative in connection with the offering,
the price at which the Underwritten Securities are to be purchased by the
U.S. Underwriters from the Company, the initial public offering price, the
selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the U.S. Representative and the
Company deem appropriate in connection with the offering of the Underwritten
Securities. The Company will promptly transmit copies of the U.S. Prospectus
(including such Prospectus Supplement) to the Commission for filing pursuant
to Rule 424 of the Regulations and will furnish to the U.S. Underwriters
named therein as many copies of the U.S. Prospectus as the U.S.
Representative shall reasonably request.
(b) If, at any time when the U.S. Prospectus is required by the 1933 Act
to be delivered in connection with sales of any of the Underwritten
Securities, any event shall occur or condition
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<PAGE>
exist as a result of which it is necessary, in the opinion of counsel for
the U.S. Underwriters or counsel for the Company, to further amend or
supplement the U.S. Prospectus in order that the U.S. Prospectus will not
include an untrue statement of a material fact or omit to state any material
fact necessary to make the statement therein not misleading in the light of
circumstances existing at the time it is delivered to a purchaser or if it
shall be necessary, in the opinion of either such counsel, at any such time
to amend or supplement the Registration Statement or the U.S. Prospectus in
order to comply with the requirements of the 1933 Act or the Regulations,
the Company will promptly prepare and file with the Commission such
amendment or supplement, whether by filing documents pursuant to the 1934
Act or otherwise, as may be necessary to correct such untrue statement or
omission or to make the Registration Statement and U.S. Prospectus comply
with such requirements.
(c) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering the 12-month period
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule 158)
of the Registration Statement relating to such Underwritten Securities.
(d) At any time when the U.S. Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Underwritten Securities, the
Company will give the U.S. Representative notice of its intention to file
any amendment to the Registration Statement or any amendment or supplement
to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act or
otherwise, will furnish the U.S. Representative with copies of any such
amendment or supplement or other documents proposed to be filed a reasonable
time in advance of filing, and will not file any such amendment or
supplement or other documents in a form to which the U.S. Representative or
counsel for the U.S. Underwriters shall reasonably object.
(e) At any time when the U.S. Prospectus is required by the 1933 Act to
be delivered in connection with sales of the Underwritten Securities, the
Company will notify the U.S. Representative immediately, and confirm such
notice in writing, of (i) the effectiveness of any amendment to the
Registration Statement, (ii) the mailing or the delivery to the Commission
for filing of any supplement to the Prospectus or any document to be filed
pursuant to the 1934 Act, (iii) the receipt of any comments from the
Commission with respect to the Registration Statement, the Prospectus or any
supplement to the Prospectus, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(f) During the period specified in (b) above, the Company will deliver
to the U.S. Representative as many signed and conformed copies of the
Registration Statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Lead Manager
may reasonably request.
(g) The Company will endeavor in good faith to qualify the Underwritten
Securities for offering and sale under the applicable securities laws of
such jurisdictions as the U.S. Representative may designate; provided,
however, that the Company shall not be obligated to file any general consent
to service or to qualify as a foreign corporation or as a dealer in
securities in any jurisdiction in which it is not so qualified. The Company
will maintain such qualifications in effect for as long as may be required
for the distribution of the Underwritten Securities. The Company will file
such statements and reports as may be required by the laws of each
jurisdiction in which the Underwritten Securities have been qualified as
above provided.
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(h) The Company, during the period when the U.S. Prospectus is required
to be delivered under the 1933 Act in connection with the sale of the
Underwritten Securities, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Unless otherwise provided in the applicable Terms Agreement, the
Company will not sell or otherwise dispose of any Underwritten Securities or
securities convertible into or exchangeable or exercisable for Underwritten
Securities other than the Underwritten Securities or the International
Securities, without the prior written consent of the U.S. Representative and
the Lead Manager for a period of 90 days after the date the Terms Agreement
is executed, except the Company may, without such consent, grant options or
issue or sell Underwritten Securities pursuant to (i) options outstanding on
the date the Terms Agreement is executed and (ii) the terms of the Company's
employee benefit plans in existence on the date the Terms Agreement is
executed.
SECTION 4. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. The several
obligations of the U.S. Underwriters to purchase Underwritten Securities
pursuant to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties on the part of the Company herein contained, to
the accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of all of its covenants and other obligations hereunder and to the following
further conditions:
(a) At the applicable Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission,
(ii) the rating assigned by Moody's Investors Service, Inc., Standard &
Poor's Corporation and Duff and Phelps, Inc. to any long-term debt
securities or preferred stock of the Company as of the date of the
applicable Terms Agreement shall not have been lowered since the execution
of such Terms Agreement, (iii) there shall not have come to the U.S.
Representative's attention any facts that would cause the U.S.
Representative to believe that the U.S. Prospectus, together with the
applicable Prospectus Supplement, at the time it was required to be
delivered to a purchaser of the Underwritten Securities, contained an untrue
statement of a material fact or omitted to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at such time, not misleading and (iv) the purchase of all of the
Initial International Securities by the International Managers pursuant to
the International Underwriting Agreement shall be consummated
contemporaneously.
(b) At the applicable Closing Time, the U.S. Representative shall have
received:
(1) The favorable opinion, dated as of the applicable Closing Time,
of Shearman & Sterling, counsel for the Company, in form and substance
satisfactory to the U.S. Representative, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware.
(ii) This Agreement, the International Underwriting Agreement and
the Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(iii) The Underwritten Securities and, if applicable, the deposit
of the Preferred Shares comprising part or all of the Underwritten
Securities by or on behalf of the Company in accordance with the
applicable Deposit Agreement have been duly authorized by the Company
and, when issued and delivered against payment of the consideration
set forth in this Agreement, will be validly issued, fully paid and
non-assessable; and the Underwritten Securities are not subject to
the preemptive rights of any stockholder.
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<PAGE>
(iv) If the Underwritten Securities are convertible into shares of
Common Stock, the shares of Common Stock issuable upon conversion
thereof have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly
issued, fully paid and non-assessable, and the issuance of such
shares upon such conversion will not be subject to preemptive rights.
(v) If applicable, the Deposit Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(vi) If applicable, upon execution and delivery thereof pursuant
to the terms of the Deposit Agreement, the Depositary Receipts issued
under and in accordance with the provisions of the Deposit Agreement
to evidence the Depositary Shares will be validly issued, and the
persons in whose names Depositary Receipts are registered will be
entitled to the rights specified therein and in the Deposit Agreement
except as enforceability of such rights may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
(vii) The Underwritten Securities and the Deposit Agreement, if
applicable, conform in all material respects as to legal matters to
the descriptions thereof in the Prospectus.
(viii) The Registration Statement is effective under the 1933 Act
and, to the best of their knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) The Registration Statement and Prospectus, and each amendment
or supplement thereto (except for the financial statements and other
financial data included therein or omitted therefrom, as to which
such counsel need express no opinion), excluding the documents
incorporated by reference therein, as of their respective effective
or issue dates, appear on their face to have been appropriately
responsive in all material respects to the requirements of the 1933
Act, the 1939 Act and the Regulations.
(x) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial data
included therein or omitted therefrom, as to which such counsel need
express no opinion), as of the dates they were filed with the
Commission, appear on their face to have been appropriately
responsive in all material respect to the requirements of the 1934
Act and the rules and regulations of the Commission thereunder.
(xi) The execution and delivery of this Agreement, the
International Underwriting Agreement, or the Deposit Agreement, if
applicable, the fulfillment of the terms herein set forth and the
consummation of the transactions herein contemplated will not
conflict with the charter or by-laws of the Company.
9
<PAGE>
Such opinion shall also state that such counsel has not verified, and is not
passing upon and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, other than those mentioned in (ix) of subsection
4(b)(1) of this Section. Such counsel has, however, generally reviewed and
discussed such statements with certain officers of the Company and its auditors.
In the course of such review and discussion, no facts have come to such
counsel's attention that lead such counsel to believe (i) that the Registration
Statement or any amendment thereto (except for the financial statements and
other financial data included therein or omitted therefrom, as to which such
counsel need not comment), at the time the Registration Statement or any such
amendment became effective or at the time an Annual Report on Form 10-K was
filed (whichever is later), or at the Representation Date, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) that the Prospectus or any amendment or supplement thereto (except for the
financial statements and other financial data included therein or omitted
therefrom, as to which such counsel need not comment), at the time the
Prospectus was issued, at the time any such amended or supplemented Prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(2) The favorable opinion, dated as of the applicable Closing Time,
of the General Counsel of the Company to the effect that (i) the Company
is duly qualified to transact business and is in good standing in the
states in which its manufacturing plants are located, (ii) the execution
and delivery of this Agreement, the Deposit Agreement, if applicable, the
fulfillment of the terms herein set forth and the consummation of the
transactions herein contemplated will not conflict with or constitute a
breach of, or default under, the charter or by-laws of the Company or any
agreement, indenture or other instrument known to such counsel of which
the Company or any of its subsidiaries is a party or by which it or any
of them is bound, or any law, administrative regulation or administrative
or court order known to him to be applicable to the Company and (iii) the
description of the authorized, issued and outstanding capital stock of
the Company under the headings "Description of Outstanding Capital Stock"
and "Capitalization", if applicable, in the Prospectus (except for
subsequent issuances, if any, pursuant to reservations or agreements
referred to in the Prospectus) is accurate as of the date indicated in
such sections, and the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable.
(3) The favorable opinion, dated as of the applicable Closing Time,
of Brown & Wood, counsel for the U.S. Underwriters, with respect to the
matters set forth in (i) to (v), inclusive, (vii) to (ix), inclusive, and
the last paragraph of subsection (b)(1) of this Section.
(c) At the applicable Closing Time, there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the financial condition of the Company and its subsidiaries considered as
one enterprise, or in the results of operations or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the U.S. Representative
shall have received a certificate of the Chairman, the President or a Vice
President of the Company, dated as of such Closing Time, to the effect that
there has been no such material adverse change and to the effect that the
other representations and warranties of the Company contained in Section 1
are true and correct with the same force and effect as though such Closing
Time were a Representation Date. As used in Section 5(c), the term
"Prospectus" means the Prospectus in the form first used to confirm sales of
the Offered Securities.
(d) The U.S. Representative shall have received from Deloitte & Touche
or other independent certified public accountant acceptable to the U.S.
Representative a letter, dated as of the date of the applicable Terms
Agreement and delivered at such time, in form heretofore agreed to.
10
<PAGE>
(e) The U.S. Representative shall have received from Deloitte & Touche
or other independent certified public accountant acceptable to the U.S.
Representative a letter, dated as of the applicable Closing Time,
reconfirming or updating the letter required by subsection (d) of this
Section to the extent that may be reasonably requested by the U.S.
Representative.
(f) At the applicable Closing Time, counsel for the U.S. Underwriters
shall have been furnished with such documents and opinions as they may
reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as herein contemplated and
related proceedings or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Offered Securities as herein
contemplated shall be satisfactory in form and substance to the U.S.
Representative and counsel for the U.S. Underwriters.
(g) In the event the option provided in the applicable Terms Agreement
as set forth in Section 2 hereof is exercised by the U.S. Representative
with respect to all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and the U.S. Representative
shall have received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company, in their capacities as such, confirming
that the certificate delivered at Closing Time pursuant to Section 4(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Shearman & Sterling, counsel for the
Company, in form and substance satisfactory to the U.S. Representative,
dated such Date of Delivery, relating to the Option Securities and
otherwise substantially to the same effect as the opinion required by
Section 4(b)(1) hereof.
(3) The favorable opinion of the General Counsel of the Company, in
form and substance satisfactory to the U.S. Representative, dated such
Date of Delivery, relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by Section
4(b)(2) hereof.
(4) The favorable opinion of Brown & Wood, counsel for the U.S.
Underwriters, dated such Date of Delivery, relating to the Option
Securities and otherwise to the same effect as the opinion required by
Section 4(b)(3) hereof.
(5) A letter from Deloitte & Touche or other independent certified
public accountant acceptable to the U.S. Representative, in form and
substance satisfactory to the U.S. Representative and dated such Date of
Delivery, substantially the same in scope and substance as the letter
furnished to the U.S. Representative pursuant to Section 4(e) hereof,
except that the "specified date" in the letter furnished pursuant to this
Section 4(g)(5) shall be a date not more than five days prior to such
Date of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
U.S. Representative by notice to the Company at any time at or prior to the
applicable Closing Time, and such termination shall be without liability of any
party to any other party except as provided in Section 5.
SECTION 5. PAYMENT OF EXPENSES. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement and all amendments thereto,
and the printing of this Agreement and the International Underwriting Agreement,
(ii) the preparation, issuance and delivery of the Underwritten Securities to
the U.S. Underwriters, (iii) the fees and disbursements of the Company's counsel
and accountant, (iv) the qualification of the Underwritten Securities under
securities laws in accordance with the provisions of Section 3(g), including
filing fees and the fees and disbursements of counsel for the U.S. Underwriters
in connection therewith and in connection with the preparation of any Blue Sky
Surveys and Legal Investment Surveys, (v) the printing and delivery to the U.S.
Underwriters in
11
<PAGE>
quantities as hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the U.S. Prospectus and any amendment or supplement
thereto, (vi) the printing and delivery to the U.S. Underwriters of copies of
the Certificate of Designation and the Deposit Agreement, if applicable, and any
Blue Sky Surveys and Legal Investment Surveys, (vii) the fees, if any, of rating
agencies, and (viii) the fees and expenses, if any, incurred in connection with
the listing of the Offered Securities and the Common Stock issuable upon
conversion of any Preferred Shares, if applicable, on any national securities
exchange.
If this Agreement is terminated by the U.S. Representative in accordance
with the provisions of Section 4 or Section 9(i), the Company shall reimburse
the U.S. Underwriters named in the applicable Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the U.S. Underwriters.
SECTION 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each U.S. Underwriter and each person, if any, who controls any U.S.
Underwriter within the meaning of Section 16 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any amendment
thereto), or any omission or alleged omission therefrom, of a material fact
required to be stated therein or necessary to make the statement therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom, of a
material fact necessary in order to make the statement therein, in the light
of the circumstances under which they were made, not misleading, unless such
untrue statement or omission or such alleged untrue statement or omission
was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any U.S. Underwriter through the
U.S. Representative expressly for use in the Registration Statement (or any
amendment thereto) or the Prospectus (or any amendment or supplement
thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above.
In no case shall the Company be liable under this indemnity agreement with
respect to any claim made against any U.S. Underwriter or any such controlling
person unless the Company shall be notified in writing of the nature of the
claim within a reasonable time after the assertion thereof, but failure so to
notify the Company shall not relieve it from any liability which it may have
otherwise than on account of this indemnity agreement. The Company shall be
entitled to participate at it own expense in the defense, or if it so elects
within a reasonable time after receipt of such notice, to assume the defense for
any suit brought to enforce any such claim, but if the Company elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the U.S. Underwriter or Underwriters or controlling person or
persons, defendant or defendant in any suit so brought. In the event that the
Company elects to assume the defense of any such suit and retains such counsel,
the U.S. Underwriter or Underwriters or controlling person or persons, defendant
or defendant in the suit shall bear the fees and expenses of any additional
counsel thereafter retained by them. In the event that the parties to any such
action (including impleaded parties) include both the Company and one or more
U.S. Underwriter or Underwriters and any such U.S. Underwriter shall
12
<PAGE>
have been advised by counsel chosen by it and satisfactory to the Company that
there may be one or more legal defenses available to it which are different from
or additional to those available to the Company, the Company shall not have the
right to assume the defense of such action on behalf of such U.S. Underwriter
and will reimburse such U.S. Underwriter and any person controlling such U.S.
Underwriter as aforesaid for the reasonable fees and expenses of any counsel
retained by them, it being understood that the Company shall not, in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys for all such U.S. Underwriters and controlling persons, which firm
shall be designated in writing by the U.S. Representative. The Company agrees to
notify the U.S. Representative within a reasonable time of the assertion of any
claim against it, any of it officers or directors or any person, if any, who
controls the Company within the meaning of Section 15 of the 1933 Act, in
connection with the sale of the Offered Securities.
(b) Each U.S. Underwriter severally agrees that it will indemnify and hold
harmless the Company and each of its officers who signs the Registration
Statement and each of it directors and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnity from the Company, but only with respect to statements or
omissions made in the Prospectus (or any amendment or supplement thereto) or the
Registration Statement (or any amendment thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such U.S. Underwriter through the U.S. Representative expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). In case any action shall be brought against
the Company or any person so indemnified based on the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) and in respect of which indemnity may be sought against any U.S.
Underwriter, such U.S. Underwriter shall have the right and duties given to the
Company, and the Company and each person so indemnified shall have the right and
duties given to the U.S. Underwriters, by the provisions of subsection (a) of
this Section.
SECTION 7. CONTRIBUTION. If the indemnification provisions provided in
Section 6 above should under applicable law be unenforceable in respect of any
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
liabilities, claims, damages or expenses (or actions in respect thereof in such
proportion as is appropriate to reflect the relative benefit received by the
Company and the U.S. Underwriters from the offering of the Underwritten
Securities and also the relative fault of the Company and the U.S. Underwriters
in connection with the statements or omissions which resulted in such losses,
liabilities, claims, damages or expenses (or actions in respect thereof), as
well as any other relevant equitable considerations. The relative benefits
received by the Company and the U.S. Underwriters shall be deemed to be in the
same proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company and the total underwriting discounts and
commissions received by the U.S. Underwriters, in each case as set forth in the
Prospectus, bear to the aggregate public offering price of the Underwritten
Securities. The relative fault shall be determined by reference to, among other
things, whether the indemnified party failed to give the notice required under
Section 6 above including the consequences of such failure, and whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or the U.S. Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission of
the Company and the U.S. Underwriters, directly or through the U.S.
Representative of the U.S. Underwriters. The Company and the U.S. Underwriters
agree that it would not be just and equitable if contribution pursuant to this
Section 7 were determined by per capita allocation (even if the U.S.
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this Section 7. The amount paid or payable by an
indemnified party as a result of the losses, liabilities, claims, damages or
expenses (or actions in
13
<PAGE>
respect thereof) referred to above in this Section 7 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this Section 7, no U.S. Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Underwritten Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such U.S. Underwriter has otherwise been required to pay by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The obligations of the U.S.
Underwriters in this Section 7 to contribute are several in proportion to their
respective underwriting obligations and not joint.
The obligations of the Company under this Section 7 shall be in addition to
any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any U.S.
Underwriter within the meaning of Section 15 of the 1933 Act; and the
obligations of the U.S. Underwriters under this Section 7 shall be in addition
to any liability which the respective U.S. Underwriters may otherwise have and
shall extend, upon the same terms and conditions, to each officer who signs the
Registration Statement and each director of the Company and to each person, if
any, who controls the Company within the meaning of Section 15 of the 1933 Act.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any U.S. Underwriter or controlling person, or by or on behalf of the
Company, and shall survive delivery of any Underwritten Securities to the U.S.
Underwriters.
SECTION 9. TERMINATION. The U.S. Representative may terminate this
Agreement, immediately upon notice to the Company, at any time prior to the
applicable Closing Time (i) if there has been, since the date of the applicable
Terms Agreement or since the respective dates as of which information is given
in the Prospectus, any material adverse change in the financial condition of the
Company and its subsidiaries considered as one enterprise, or in the results of
operations or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States is such as to make it, in the judgment of the U.S. Representative,
impracticable to market the Underwritten Securities or enforce contracts for the
sale of the Underwritten Securities, or (iii) if trading on either the American
Stock Exchange or the New York Stock Exchange has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by either of said exchanges or by order of the
Commission or any other governmental authority, or if a banking moratorium has
been declared by either Federal or New York authorities. In the event of any
such termination, (a) the covenants set forth in Section 3 with respect to any
offering of Underwritten Securities shall remain in effect so long as any U.S.
Underwriter retains beneficial ownership of any such Underwritten Securities
purchased from the Company pursuant to the applicable Terms Agreement and (y)
the covenant set forth in Section 3(c), the provisions of Section 5, the
indemnity agreement set forth in Section 6, the contribution agreement set forth
in Section 7 and the provisions of Sections 8 and 13 shall remain in effect. As
used in this Section 9, the term "Prospectus" means the Prospectus in the form
first used to confirm sales of the Offered Securities.
SECTION 10. DEFAULT. If one or more of the U.S. Underwriters shall fail at
the applicable Closing Time to purchase the Initial Underwritten Securities
which it or they are obligated to purchase under the applicable Terms Agreement
(the "Defaulted Securities"), then the U.S. Representative shall have the right,
within 24 hours thereafter, to make arrangements for one or more of the
non-defaulting U.S. Underwriters, or any other underwriters, to purchase all,
but not less than all, of
14
<PAGE>
the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth. If, however, during such 24 hours the U.S.
Representative shall not have completed such arrangements for the purchase of
all of the Defaulted Securities, then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of the Initial Securities, the non-defaulting U.S. Underwriters named
in such Terms Agreement shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
thereunder bear to the underwriting obligations of all such non-defaulting
U.S. Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
the Initial Securities, this Agreement shall terminate without any liability
on the part of any non-defaulting U.S. Underwriters or the Company.
No action taken pursuant to this Section shall relieve any defaulting U.S.
Underwriter from liability in respect of any default of such U.S. Underwriter
under this Agreement.
In the event of a default by any U.S. Underwriter or U.S. Underwriters as
set forth in this Section, either the U.S. Representative or the Company shall
have the right to postpone the applicable Closing Time for a period not
exceeding seven days in order that any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements may be
effected.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the U.S.
Underwriters shall be directed to the U.S. Representative; notices to the
Company shall be directed to it at John Deere Road, Moline, Illinois 61265-8098,
Attention: Treasurer.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Company and any U.S. Underwriter who becomes a party hereto,
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any U.S. Underwriter shall be deemed to be a successor by reason merely of such
purchase.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State.
SECTION 14. COUNTERPARTS. The applicable Terms Agreement may be executed
in one or more counterparts, and if executed in more than one counterpart the
executed counterparts shall constitute a single instrument.
15
<PAGE>
EXHIBIT A
DEERE & COMPANY
(A DELAWARE CORPORATION)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
, 19
DEERE & COMPANY
John Deere Road
Moline, Illinois 61265-8098
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Deere & Company (the
"Company"), and the Company agrees to sell to the undersigned on ,
19 (the "Delivery Date"),
of the Company's [insert title of security] (the "Securities"), offered by the
Company's Prospectus dated , 19 , as supplemented by its Prospectus
Supplement dated , 19 , receipt of which is hereby acknowledged at
a purchase price of to the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
, on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before , 19 ,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
number of the Securities as is to be sold to them pursuant to the Terms
Agreement dated , 19 between the Company and the Underwriters. The
obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
<PAGE>
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery Contracts
for a number of Securities in excess of and that the acceptance of any
Delayed Delivery Contract is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If this
contract is acceptable to the Company, it is requested that the Company sign the
form of acceptance on a copy hereof and mail or deliver a signed copy hereof to
the undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such copy is so mailed or
delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
--------------------------------------
(Name of Purchaser)
By
--------------------------------------
(Title)
--------------------------------------
--------------------------------------
(Address)
Accepted as of the date first above
written.
DEERE & COMPANY
By
- --------------------------------------
(Title)
A-2
<PAGE>
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
<TABLE>
<CAPTION>
TELEPHONE NO.
(INCLUDING
NAME AREA CODE)
- --------------------------------------------------------------------------------------------------- -------------
<S> <C>
</TABLE>
A-3
<PAGE>
EXHIBIT 1.3
DEERE & COMPANY
(A DELAWARE CORPORATION)
COMMON STOCK
(PAR VALUE $1.00 PER SHARE)
INTERNATIONAL TERMS AGREEMENT
Dated: , 199
Deere & Company
John Deere Road
Moline, Illinois 61265-8098
Attention:
Dear Sirs:
We (collectively, the "Lead Manager") understand that Deere & Company, a
Delaware corporation (the "Company"), proposes to issue and sell shares of its
[Common Stock, $1.00 par value] [Preferred Stock, $1.00 par value] (the
"Underwritten Securities"), as set forth below. Subject to the terms and
conditions set forth or incorporated by reference herein, collectively, the
international managers named below (the "International Managers") offer to
purchase, severally and not jointly, the respective number of shares of Initial
Underwritten Securities (as defined in the International Underwriting Agreement
Basic Provisions referenced below) set forth below opposite their respective
names, and a proportionate share of Option Securities (as defined in the
International Underwriting Agreement Basic Provisions referenced below), to the
extent any are purchased, at the purchase price set forth below.
<TABLE>
<CAPTION>
NUMBER OF SHARES OF INITIAL
INTERNATIONAL MANAGER UNDERWRITTEN SECURITIES
- --------------------------------------------------------- ---------------------------
<S> <C>
------------
Total....................................................
----------
----------
</TABLE>
The Underwritten Securities shall have the following terms:
Title of Securities:
Number of Shares:
Public offering price per share:
<PAGE>
Number of Option Securities (as defined in the
International Underwriting Agreement Basic
Provisions referenced below):
Closing date and location:
[It is understood that the Company is concurrently entering into an
agreement dated the date hereof providing for the offering by the Company in the
United States and Canada of an aggregate of of , par
value $1.00 per share, through arrangements with certain underwriters of such
shares.]
All the provisions contained in the document attached as Annex A hereto
entitled "Deere & Company -- Common Stock ($1.00 par value) and Preferred Stock
($1.00 par value) -- International Underwriting Agreement Basic Provisions" are
hereby incorporated by reference in their entirety herein and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than (New York City time) on
, 199 by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us.
Very truly yours,
By:
By: __________________________________
Authorized Signatory
Acting on behalf of themselves and the
other named International Managers.
Accepted:
DEERE & COMPANY
By: __________________________________
Name:
Title:
2
<PAGE>
6/14/94
ANNEX A
DEERE & COMPANY
(A DELAWARE CORPORATION)
COMMON STOCK ($1.00 PAR VALUE)
AND
PREFERRED STOCK ($1.00 PAR VALUE)
INTERNATIONAL UNDERWRITING AGREEMENT BASIC PROVISIONS
Deere & Company (the "Company") proposes to issue and sell shares of Common
Stock, $1.00 par value ("Common Stock"), or Preferred Stock, $1.00 par value
(the "Preferred Shares"), or both, from time to time in one or more offerings on
terms determined at the time of sale. The Preferred Shares may be offered in the
form of depositary shares (the "Depositary Shares") represented by depositary
receipts (the "Depositary Receipts"). The Common Stock and, if applicable, the
Preferred Shares, together, if applicable, with the Depositary Shares and the
Depositary Receipts are hereinafter referred to as the "Securities". Each issue
of Preferred Shares may vary as to the specific number of shares, title, stated
value and liquidation preference, issuance price, ranking, dividend rate or
rates (or method of calculation), dividend payment dates, any redemption or
sinking fund requirements, any conversion provisions and any other variable
terms as set forth in the applicable certificate of designation (each, a
"Certificate of Designation") relating to such Preferred Shares.
This is to confirm the arrangements with respect to the purchase of
Underwritten Securities (as defined in Section 2 hereof) from the Company by the
Lead Manager or Managers (collectively, the "Lead Manager") and the several
International Managers (collectively, the "International Managers") listed in
the applicable terms agreement entered into between the Lead Manager and the
Company of which this International Underwriting Agreement Basic Provisions is
Annex A thereto (the "Terms Agreement"). With respect to any particular Terms
Agreement, such Terms Agreement, together with the provisions hereof
incorporated therein by reference, is herein referred to as the "Agreement".
Terms defined in the applicable Terms Agreement are used herein as therein
defined.
The applicable Terms Agreement contemplates that the Company will
concurrently enter into a U.S. Underwriting Agreement Basic Provisions and
related Terms Agreement (collectively, the "U.S. Underwriting Agreement")
providing for the offering of Securities in the United States and Canada (the
"U.S. Securities") through arrangements with one or more representatives
(collectively, the "U.S. Representative") and the several underwriters (the
"U.S. Underwriters") listed therein.
The following definitions shall apply: (i) the term "U.S. Securities" shall
consist of (a) the U.S. Securities which the several U.S. Underwriters initially
agreed to purchase (the "Initial U.S. Securities") and (b) the U.S. Securities
which the several U.S. Underwriters may purchase upon exercise of an
over-allotment option (the "U.S. Option Securities"), if any, (ii) the
International Managers and the U.S. Underwriters shall hereinafter collectively
be referred to as the "Underwriters", (iii) the Initial Underwritten Securities
(as defined in Section 2 hereof) and the Initial U.S. Securities shall
hereinafter collectively be referred to as the "Initial Securities", (iv) the
Option Underwritten Securities (as defined in Section 2 hereof) and the U.S.
Option Securities shall hereinafter be collectively referred to as the "Option
Securities" and (v) the Initial Securities and the Option Securities shall
hereinafter be collectively referred to as the "Offered Securities".
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33- ) in respect of
the Securities and certain of the Company's senior and/or subordinated debt
securities ("Debt Securities") and warrants to purchase Debt Securities and
certain other warrants, which registration statement also constitutes post-
<PAGE>
effective amendment No. 1 to registration statement No. 33-66134 relating to the
Company's debt securities and warrants to purchase debt securities, and has
filed such amendments thereto as may have been required to the date of the Terms
Agreement. Such registration statement and such post-effective amendment, as
amended, have been declared effective by the Commission. Such registration
statement and such post-effective amendment, as amended, and the combined
prospectus constituting a part thereof and the supplements to the prospectus
(each, a "Prospectus Supplement") relating to the offering of the Offered
Securities, including all documents incorporated therein by reference, as from
time to time amended or supplemented pursuant to the Securities Exchange Act of
1934 (the "1934 Act"), the Securities Act of 1933 (the "1933 Act"), or otherwise
(whether or not the prospectus or the applicable Prospectus Supplement is
required to be filed with the Commission pursuant to Rule 424(b) of the
Regulations, as defined below), are collectively referred to herein as the
"Registration Statement" and the "Prospectus"(1) , respectively; provided,
however, that any Prospectus Supplement shall be deemed to supplement the
Prospectus only with respect to the offering of Offered Securities to which it
relates.
SECTION 1. REPRESENTATIONS AND WARRANTIES. The Company represents and
warrants to the Lead Manager and to each International Manager named in a Terms
Agreement as of the date thereof (the "Representation Date"), as follows:
(a) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective and as of the applicable
Representation Date, complied in all material respects with the requirements
of the 1933 Act, the rules and regulations thereunder (the "Regulations")
and the Trust Indenture Act of 1939 (the "1939 Act"). The Registration
Statement, at the time the Registration Statement became effective and as of
the applicable Representation Date, did not, and will not, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading. The Prospectus, as of the applicable Representation Date
(unless the term "Prospectus" refers to a prospectus which has been provided
to the International Managers or the U.S. Underwriters, as the case may be,
by the Company for use in connection with the offering of the Offered
Securities which differs from the Prospectus on file with the Commission, as
of such Representation Date, in which case at the time such prospectus is
first provided and at Closing Time (as defined in Section 2 hereof), did
not, and will not, include an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they were made, not misleading;
provided, however, that the representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in conformity
with information furnished to the Company in writing by any International
Manager through the Lead Manager or any U.S. Underwriter through the U.S.
Representative expressly for use in the Registration Statement or
Prospectus.
(b) The financial statements and the supporting schedules included in
the Registration Statement and Prospectus present fairly the financial
position of the Company and its subsidiar-
ies on a consolidated basis, as at the dates indicated, and the respective
results of operations for the periods specified, in conformity with
generally accepted accounting principles applied on a consistent basis
during the periods involved.
(c) The documents incorporated by reference in the Prospectus, at the
time they were or hereafter are filed with the Commission, complied and will
comply, as the case may be, in all material respects with the requirements
of the 1934 Act and the rules and regulations thereunder, and, when read
together and with the other information in the Prospectus, at the time the
Registration Statement became effective, at the time any amendments thereto
become effective
- ------------------------
(1) The term "Prospectus" shall be deemed to refer to the prospectus relating
to the offering of the Underwritten Securities (the "International
Prospectus") and the prospectus relating to the offering of the U.S.
Securities (the "U.S. Prospectus").
2
<PAGE>
or thereafter during the period specified in Section 3(b) and at Closing
Time, did not and will not include an untrue statement of a material fact or
omit to state a material fact required to be stated therein or necessary to
make the statements therein, in the light of the circumstances under which
they are made, not misleading.
(d) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as may otherwise be stated
in or contemplated by the Registration Statement and Prospectus: (i) there
has not been any material adverse change in the financial condition of the
Company and its subsidiaries considered as one enterprise, or in the results
of operations or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course
of business, (ii) there have not been any transactions entered into by the
Company or its subsidiaries other than (x) transactions in the ordinary
course of business and (y) transactions which are not material in relation
to the Company and its subsidiaries considered as one enterprise, and (iii)
except for regular quarterly dividends on the Common Stock and any Preferred
Shares that may be outstanding, there has been no dividend or distribution
of any kind declared, paid or made by the Company on any class of its
capital stock.
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware with
power and authority to own, lease and operate its properties and conduct its
business as described in the Registration Statement.
(f) The execution and delivery of this Agreement, the U.S. Underwriting
Agreement and the Deposit Agreement (as defined in (h) below), if
applicable, and the consummation of the transactions contemplated herein and
therein, have been duly authorized by all necessary corporate action and
will not result in any breach of any of the terms, conditions or provisions
of, or constitute a default under, or result in the creation or imposition
of any lien, charge or encumbrance upon any property or assets of the
Company, pursuant to any indenture, loan agreement, contract or other
agreement or instrument to which the Company is a party or by which the
Company may be bound or to which any of the property or assets of the
Company is subject, nor will such action result in any violation of the
provisions of the charter or by-laws of the Company or, to the best of its
knowledge, any order, rule or regulation applicable to the Company of any
court or of any federal, state or other regulatory authority or other
governmental body having jurisdiction over the Company.
(g) The description of the authorized, issued and outstanding capital
stock of the Company under "Description of Outstanding Capital Stock" and
"Capitalization" in the Prospectus (except for subsequent issuances, if any,
pursuant to reservations or agreements referred to in the Prospectus) is
accurate as of the date indicated in such sections.
(h) The Underwritten Securities being sold pursuant to the applicable
Terms Agreement and, if applicable, the deposit of the Preferred Shares
comprising part or all of the Underwritten Securities by or on behalf of the
Company in accordance with the provisions of a Deposit Agreement (each, a
"Deposit Agreement"), among the Company, the financial institution named in
the Deposit Agreement (the "Depositary") and the holders of the Depositary
Receipts issued thereunder, have, as of the applicable Representation Date,
been duly authorized by the Company and such Underwritten Securities have
been duly authorized for issuance and sale pursuant to this Agreement (or
will have been so authorized prior to each issuance of Underwritten
Securities) and such Underwritten Securities, when issued and delivered by
the Company pursuant to this Agreement against payment of the consideration
set forth in this Agreement, will be validly issued, fully paid and
non-assessable; the Underwritten Securities being sold pursuant to the
applicable Terms Agreement and, if applicable, the Depositary Receipts,
conform in all material respects to all statements relating thereto
contained in the Prospectus; and the issuance of the Underwritten Securities
is not subject to preemptive or other similar rights.
3
<PAGE>
(i) If the Underwritten Securities are Common Stock or Preferred Shares
convertible into Common Stock, the shares of issued and outstanding capital
stock have been duly authorized and validly issued and are fully paid and
non-assessable and such capital stock conforms in all material respects as
to legal matters to the description thereof in the Prospectus.
(j) If applicable, the shares of Common Stock issuable upon conversion
of any issue of the Preferred Shares have been duly authorized and reserved
for issuance upon such conversion by all necessary corporate action and when
issued upon such conversion, will be validly issued, fully paid and
non-assessable, and the issuance of such shares upon such conversion will
not be subject to preemptive rights.
(k) If applicable, the Deposit Agreement will have been duly authorized,
executed and delivered by the Company prior to the issuance of any
applicable Underwritten Securities, and constitutes a valid and legally
binding obligation of the Company enforceable in accordance with its terms,
except as enforceability thereof may be limited by bankruptcy, insolvency or
other laws relating to or affecting enforcement of creditors' rights
generally or by general equity principles.
(l) If applicable, upon execution and delivery thereof pursuant to the
terms of the Deposit Agreement, the persons in whose names the Depositary
Receipts are registered will be entitled to the rights specified therein and
in the Deposit Agreement, except as enforceability of such rights may be
limited by bankruptcy, insolvency or other laws relating to or affecting
enforcement of creditors' rights generally or by general equity principles.
(m) Deloitte & Touche are independent certified public accountants as
required by the 1933 Act and the Regulations.
(n) The Company and its subsidiaries own or possess, or can acquire on
reasonable terms, adequate patent rights or licenses or other rights to use
patent rights, inventions, trademarks, service marks, trade names and
copyrights necessary to conduct the business now operated by them, and
neither the Company nor any of its subsidiaries has received any notice of
infringement or of conflict with asserted rights of others with respect to
any patent, patent rights, inventions, trademarks, service marks, trade
names or copyrights which, singly or in aggregate, if the subject of an
unfavorable decision, ruling or finding, would materially adversely affect
the conduct of the business, operations, financial condition or income of
the Company and its subsidiaries considered as one enterprise.
(o) No labor disturbance by the employees of the Company or any
subsidiary exists or is imminent which might be expected to materially
adversely affect the conduct of the business, operations, financial
condition or income of the Company and its subsidiaries, considered as one
enterprise.
Any certificate signed by any officer of the Company and delivered to the
Lead Manager or counsel for the International Managers in connection with an
offering of Underwritten Securities shall be deemed a representation and
warranty by the Company, as to the matters covered thereby, to each
International Manager participating in such offering.
SECTION 2. PURCHASE AND SALE. The obligations of the International
Managers to purchase, and the Company to sell, the Underwritten Securities shall
be evidenced by the applicable Terms Agreement. Such Terms Agreement shall
specify the number of Underwritten Securities to be initially issued (the
"Initial Underwritten Securities"), whether the Initial Underwritten Securities
shall be in the form of Depositary Shares and the fractional amount of Preferred
Shares represented by each Depositary Share, the names of the International
Managers participating in such offering (subject to substitution as provided in
Section 10 hereof), the number of Initial Underwritten Securities which each
such International Manager severally agrees to purchase, the name of each
International Managers acting as Lead Manager, in connection with such offering,
the price at which the Initial Underwritten Securities are to be purchased by
the International Managers from the Company, the initial public offering price,
the time and place of delivery and payment, any delayed delivery arrangements
and any
4
<PAGE>
other terms of the Initial Underwritten Securities pursuant to which they are
being issued (including, but not limited to, designations, conversion
provisions, redemption provisions and sinking fund requirements). In addition,
the applicable Terms Agreement shall specify whether the Company has agreed to
grant to the International Managers an option to purchase additional
Underwritten Securities subject to such option (the "Option Underwritten
Securities"). As used herein, the "Underwritten Securities" shall include the
Initial Underwritten Securities and all or any portion of the Option
Underwritten Securities agreed to be purchased by the International Managers.
The several commitments of the International Managers to purchase
Underwritten Securities pursuant to the applicable Terms Agreement shall be
deemed to have been made on the basis of the representations and warranties
herein contained and shall be subject to the terms and conditions herein set
forth.
On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Company may grant, if
so provided in the applicable Terms Agreement relating to any Initial
Underwritten Securities, an option to the International Managers named in such
Terms Agreement, severally and not jointly, to purchase up to the number of
Option Securities set forth therein at the same price per share as is applicable
to the Initial Securities. Such option, if granted, will expire 30 days or such
lesser number of days as may be specified in such Terms Agreement after the
Representation Date relating to the Initial Underwritten Securities, and may be
exercised by the U.S. Representative on behalf of both the International
Managers and the U.S. Underwriters in whole or in part from time to time only
for the purpose of covering over-allotments which may be made in connection with
the offering and distribution of the Initial Securities upon notice by the U.S.
Representative to the Company setting forth the number of Option Securities as
to which the several Underwriters are then exercising the option and the time
and date of payment and delivery for such Option Securities. Any such time and
date of delivery (a "Date of Delivery") shall be determined by the U.S.
Representative but shall not be later than seven full business days and not
earlier than two full business days after the exercise of said option, unless
otherwise agreed upon by the U.S. Representative and the Company. If the option
is exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion of
the total number of Option Securities then being purchased which the number of
Initial Securities each such Underwriter has severally agreed to purchase as set
forth in the applicable Terms Agreement bears to the total number of Initial
Securities, subject to such adjustments as the U.S. Representative in its
discretion shall make to eliminate any sales or purchases of fractional shares.
Payment of the purchase price for, and delivery of, any Initial Underwritten
Securities to be purchased by the International Managers shall be made at the
office of Brown & Wood, One World Trade Center, New York, New York 10048-0557,
or at such other place as shall be agreed upon by the Lead Manager and the
Company, at 10:00 A.M., New York City time, on the fifth business day (unless
postponed in accordance with the provisions of Section 10 hereof) following the
date of the applicable Terms Agreement or such other time as shall be agreed
upon by the Lead Manager and the Company (each such time and date being referred
to as a "Closing Time"). In addition, in the event that the over-allotment
option described in the immediately preceding paragraph is exercised, payment of
the purchase price for, and delivery of certificates representing, the related
Option Securities, shall be made at the above-mentioned office of Brown & Wood,
or at such other place as shall be agreed upon by the U.S. Representative and
the Company on each Date of Delivery as specified in the notice from the U.S.
Representative to the Company. Payment shall be made to the Company by certified
or official bank check or checks in New York Clearing House or similar next day
funds payable to the order of the Company against delivery to the Lead Manager
for the respective accounts of the International Managers of the Underwritten
Securities to be purchased by them. Certificates for such Underwritten
Securities or, if applicable, Depositary Receipts evidencing the Depositary
Shares shall be in such denominations and registered in such names as the Lead
Manager may request in writing at least two
5
<PAGE>
business days prior to the applicable Closing Time or Date of Delivery, as the
case may be. Such certificates or receipts will be made available for
examination and packaging by the Lead Manager on or before the first business
day prior to Closing Time or Date of Delivery, as the case may be.
If authorized by the applicable Terms Agreement, the International Managers
named therein may solicit offers to purchase Underwritten Securities from the
Company pursuant to delayed delivery contracts ("Delayed Delivery Contracts")
substantially in the form of Exhibit A hereto with such changes therein as the
Company may approve. As compensation for arranging Delayed Delivery Contracts,
the Company will pay to the Lead Manager at Closing Time, for the accounts of
the International Managers, a fee specified in the applicable Terms Agreement
for each of the Underwritten Securities for which Delayed Delivery Contracts are
made at Closing Time as is specified in such Terms Agreement. Any Delayed
Delivery Contracts are to be with institutional investors of the types set forth
in the applicable Prospectus Supplement. At Closing Time, the Company will enter
into Delayed Delivery Contracts (for not less than the minimum number of
Securities per Delayed Delivery Contract specified in the applicable Terms
Agreement) with all purchasers proposed by the International Managers and
previously approved by the Company as provided below, but not for an aggregate
number of Underwritten Securities in excess of that specified in such Terms
Agreement. The International Managers will not have any responsibility for the
validity or performance of Delayed Delivery Contracts.
If applicable, the Lead Manager shall submit to the Company, at least three
business days prior to Closing Time, the names of any institutional investors
with which it is proposed that the Company will enter into Delayed Delivery
Contracts and the number of Underwritten Securities to be purchased by each of
them, and the Company will advise the Lead Manager, at least two business days
prior to Closing Time, of the names of the institutions with which the making of
Delayed Delivery Contracts is approved by the Company and the number of
Underwritten Securities to be covered by each such Delayed Delivery Contract.
The number of Underwritten Securities agreed to be purchased by the
respective International Managers pursuant to the applicable Terms Agreement
shall be reduced by the number of Underwritten Securities covered by Delayed
Delivery Contracts, as to each International Manager as set forth in a written
notice delivered by the Lead Manager to the Company; provided, however, that the
total number of Underwritten Securities to be purchased by all International
Managers shall be the total number of Underwritten Securities covered by the
applicable Terms Agreement, less the number of Underwritten Securities covered
by Delayed Delivery Contracts.
SECTION 3. COVENANTS OF THE COMPANY. The Company covenants with the Lead
Manager, and with each International Manager participating in the offering of
Underwritten Securities, as follows:
(a) Immediately following the execution of the applicable Terms
Agreement, the Company will prepare a Prospectus Supplement setting forth
the number of Underwritten Securities covered thereby and their terms not
otherwise set forth in the Prospectus, the names of the International
Managers participating in the offering and the number of Underwritten
Securities which each severally has agreed to purchase, the name of each
International Manager acting as Lead Manager in connection with the
offering, the price at which the Underwritten Securities are to be purchased
by the International Managers from the Company, the initial public offering
price, the selling concession and reallowance, if any, any delayed delivery
arrangements, and such other information as the Lead Manager and the Company
deem appropriate in connection with the offering of the Underwritten
Securities. The Company will promptly transmit copies of the International
Prospectus (including such Prospectus Supplement) to the Commission for
filing pursuant to Rule 424 of the Regulations and will furnish to the
International Managers named therein as many copies of the International
Prospectus as the Lead Manager shall reasonably request.
(b) If, at any time when the International Prospectus is required by the
1933 Act to be delivered in connection with sales of any of the Underwritten
Securities, any event shall occur or
6
<PAGE>
condition exist as a result of which it is necessary, in the opinion of
counsel for the International Managers or counsel for the Company, to
further amend or supplement the International Prospectus in order that the
International Prospectus will not include an untrue statement of a material
fact or omit to state any material fact necessary to make the statement
therein not misleading in the light of circumstances existing at the time it
is delivered to a purchaser or if it shall be necessary, in the opinion of
either such counsel, at any such time to amend or supplement the
Registration Statement or the International Prospectus in order to comply
with the requirements of the 1933 Act or the Regulations, the Company will
promptly prepare and file with the Commission such amendment or supplement,
whether by filing documents pursuant to the 1934 Act or otherwise, as may be
necessary to correct such untrue statement or omission or to make the
Registration Statement and International Prospectus comply with such
requirements.
(c) With respect to each sale of Underwritten Securities, the Company
will make generally available to its security holders as soon as
practicable, but not later than 90 days after the close of the period
covered thereby, an earnings statement (in form complying with the
provisions of Rule 158 under the 1933 Act) covering the 12-month period
beginning, in each case, not later than the first day of the Company's
fiscal quarter next following the "effective date" (as defined in Rule 158)
of the Registration Statement relating to such Underwritten Securities.
(d) At any time when the International Prospectus is required by the
1933 Act to be delivered in connection with sales of the Underwritten
Securities, the Company will give the Lead Manager notice of its intention
to file any amendment to the Registration Statement or any amendment or
supplement to the Prospectus, whether pursuant to the 1934 Act, the 1933 Act
or otherwise, will furnish the Lead Manager with copies of any such
amendment or supplement or other documents proposed to be filed a reasonable
time in advance of filing, and will not file any such amendment or
supplement or other documents in a form to which the Lead Manager or counsel
for the International Managers shall reasonably object.
(e) At any time when the International Prospectus is required by the
1933 Act to be delivered in connection with sales of the Underwritten
Securities, the Company will notify the Lead Manager immediately, and
confirm such notice in writing, of (i) the effectiveness of any amendment to
the Registration Statement, (ii) the mailing or the delivery to the
Commission for filing of any supplement to the Prospectus or any document to
be filed pursuant to the 1934 Act, (iii) the receipt of any comments from
the Commission with respect to the Registration Statement, the Prospectus or
any supplement to the Prospectus, (iv) any request by the Commission for any
amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (v) the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that
purpose. The Company will make every reasonable effort to prevent the
issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest possible moment.
(f) During the period specified in (b) above, the Company will deliver
to the Lead Manager as many signed and conformed copies of the Registration
Statement (as originally filed) and of each amendment thereto (including
exhibits filed therewith or incorporated by reference therein and documents
incorporated by reference in the Prospectus) as the Lead Manager may
reasonably request.
(g) The Company will endeavor in good faith to qualify the Underwritten
Securities for offering and sale under the applicable securities laws of
such jurisdictions as the Lead Manager may designate; provided, however,
that the Company shall not be obligated to file any general consent to
service or to qualify as a foreign corporation or as a dealer in securities
in any jurisdiction in which it is not so qualified. The Company will
maintain such qualifications in effect
7
<PAGE>
for as long as may be required for the distribution of the Underwritten
Securities. The Company will file such statements and reports as may be
required by the laws of each jurisdiction in which the Underwritten
Securities have been qualified as above provided.
(h) The Company, during the period when the International Prospectus is
required to be delivered under the 1933 Act in connection with the sale of
the Underwritten Securities, will file promptly all documents required to be
filed with the Commission pursuant to Section 13 or 14 of the 1934 Act.
(i) Unless otherwise provided in the applicable Terms Agreement, the
Company will not sell or otherwise dispose of any Underwritten Securities or
securities convertible into or exchangeable or exercisable for Underwritten
Securities other than the Underwritten Securities or the U.S. Securities,
without the prior written consent of the Lead Manager and the U.S.
Representative for a period of 90 days after the date the Terms Agreement is
executed, except the Company may, without such consent, grant options or
issue or sell Underwritten Securities pursuant to (i) options outstanding on
the date the Terms Agreement is executed and (ii) the terms of the Company's
employee benefit plans in existence on the date the Terms Agreement is
executed.
SECTION 4. CONDITIONS OF INTERNATIONAL MANAGERS' OBLIGATIONS. The several
obligations of the International Managers to purchase Underwritten Securities
pursuant to the applicable Terms Agreement are subject to the accuracy of the
representations and warranties on the part of the Company herein contained, to
the accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance by the Company
of all of its covenants and other obligations hereunder and to the following
further conditions:
(a) At the applicable Closing Time, (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued under the
1933 Act or proceedings therefor initiated or threatened by the Commission,
(ii) the rating assigned by Moody's Investors Service, Inc., Standard &
Poor's Corporation and Duff and Phelps, Inc. to any long-term debt
securities or preferred stock of the Company as of the date of the
applicable Terms Agreement shall not have been lowered since the execution
of such Terms Agreement, (iii) there shall not have come to the Lead
Manager's attention any facts that would cause the Lead Manager to believe
that the International Prospectus, together with the applicable Prospectus
Supplement, at the time it was required to be delivered to a purchaser of
the Underwritten Securities, contained an untrue statement of a material
fact or omitted to state a material fact necessary in order to make the
statements therein, in the light of the circumstances existing at such time,
not misleading and (iv) the purchase of all of the Initial U.S. Securities
by the U.S. Underwriters pursuant to the U.S. Underwriting Agreement shall
be consummated contemporaneously.
(b) At the applicable Closing Time, the Lead Manager shall have
received:
(1) The favorable opinion, dated as of the applicable Closing Time,
of Shearman & Sterling, counsel for the Company, in form and substance
satisfactory to the Lead Manager, to the effect that:
(i) The Company is a corporation duly incorporated and validly
existing in good standing under the laws of the State of Delaware.
(ii) This Agreement, the U.S. Underwriting Agreement and the
Delayed Delivery Contracts, if any, have been duly authorized,
executed and delivered by the Company.
(iii) The Underwritten Securities and, if applicable, the deposit
of the Preferred Shares comprising part or all of the Underwritten
Securities by or on behalf of the Company in accordance with the
applicable Deposit Agreement have been duly authorized by the Company
and, when issued and delivered against payment of the consideration
set forth in this Agreement, will be validly issued, fully paid and
non-assessable; and the Underwritten Securities are not subject to
the preemptive rights of any stockholder.
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<PAGE>
(iv) If the Underwritten Securities are convertible into shares of
Common Stock, the shares of Common Stock issuable upon conversion
thereof have been duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be validly
issued, fully paid and non-assessable, and the issuance of such
shares upon such conversion will not be subject to preemptive rights.
(v) If applicable, the Deposit Agreement has been duly
authorized, executed and delivered by the Company and constitutes a
valid and legally binding obligation of the Company enforceable in
accordance with its terms, except as enforceability thereof may be
limited by bankruptcy, insolvency, reorganization or other similar
laws affecting enforcement of creditors' rights generally and except
as enforcement thereof is subject to general principles of equity
(regardless of whether enforcement is considered in a proceeding in
equity or at law).
(vi) If applicable, upon execution and delivery thereof pursuant
to the terms of the Deposit Agreement, the Depositary Receipts issued
under and in accordance with the provisions of the Deposit Agreement
to evidence the Depositary Shares will be validly issued, and the
persons in whose names Depositary Receipts are registered will be
entitled to the rights specified therein and in the Deposit Agreement
except as enforceability of such rights may be limited by bankruptcy,
insolvency, reorganization or other similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law).
(vii) The Underwritten Securities and the Deposit Agreement, if
applicable, conform in all material respects as to legal matters to
the descriptions thereof in the Prospectus.
(viii) The Registration Statement is effective under the 1933 Act
and, to the best of their knowledge and information, no stop order
suspending the effectiveness of the Registration Statement has been
issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission.
(ix) The Registration Statement and Prospectus, and each amendment
or supplement thereto (except for the financial statements and other
financial data included therein or omitted therefrom, as to which
such counsel need express no opinion), excluding the documents
incorporated by reference therein, as of their respective effective
or issue dates, appear on their face to have been appropriately
responsive in all material respects to the requirements of the 1933
Act, the 1939 Act and the Regulations.
(x) The documents incorporated by reference in the Prospectus
(except for the financial statements and other financial data
included therein or omitted therefrom, as to which such counsel need
express no opinion), as of the dates they were filed with the
Commission, appear on their face to have been appropriately
responsive in all material respect to the requirements of the 1934
Act and the rules and regulations of the Commission thereunder.
(xi) The execution and delivery of this Agreement, the U.S.
Underwriting Agreement, or the Deposit Agreement, if applicable, the
fulfillment of the terms herein set forth and the consummation of the
transactions herein contemplated will not conflict with the charter
or by-laws of the Company.
(xii) The information in the International Prospectus under the
heading "Certain United States Federal Tax Considerations for
Non-U.S. Holders of Common Stock", if any, to the extent that it
constitutes matters of law or legal conclusions has been reviewed by
such counsel and is correct in all material respects.
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<PAGE>
Such opinion shall also state that such counsel has not verified, and is not
passing upon and does not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement or the Prospectus, other than those mentioned in (ix) of subsection
4(b)(1) of this Section. Such counsel has, however, generally reviewed and
discussed such statements with certain officers of the Company and its auditors.
In the course of such review and discussion, no facts have come to such
counsel's attention that lead such counsel to believe (i) that the Registration
Statement or any amendment thereto (except for the financial statements and
other financial data included therein or omitted therefrom, as to which such
counsel need not comment), at the time the Registration Statement or any such
amendment became effective or at the time an Annual Report on Form 10-K was
filed (whichever is later), or at the Representation Date, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading or
(ii) that the Prospectus or any amendment or supplement thereto (except for the
financial statements and other financial data included therein or omitted
therefrom, as to which such counsel need not comment), at the time the
Prospectus was issued, at the time any such amended or supplemented Prospectus
was issued or at the Closing Time, included or includes an untrue statement of a
material fact or omitted or omits to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(2) The favorable opinion, dated as of the applicable Closing Time,
of the General Counsel of the Company to the effect that (i) the Company
is duly qualified to transact business and is in good standing in the
states in which its manufacturing plants are located, (ii) the execution
and delivery of this Agreement, the Deposit Agreement, if applicable, the
fulfillment of the terms herein set forth and the consummation of the
transactions herein contemplated will not conflict with or constitute a
breach of, or default under, the charter or by-laws of the Company or any
agreement, indenture or other instrument known to such counsel of which
the Company or any of its subsidiaries is a party or by which it or any
of them is bound, or any law, administrative regulation or administrative
or court order known to him to be applicable to the Company and (iii) the
description of the authorized, issued and outstanding capital stock of
the Company under the headings "Description of Outstanding Capital Stock"
and "Capitalization", if applicable, in the Prospectus (except for
subsequent issuances, if any, pursuant to reservations or agreements
referred to in the Prospectus) is accurate as of the date indicated in
such sections, and the issued and outstanding shares of capital stock of
the Company have been duly authorized and validly issued and are fully
paid and non-assessable.
(3) The favorable opinion, dated as of the applicable Closing Time,
of Brown & Wood, counsel for the International Managers, with respect to
the matters set forth in (i) to (v), inclusive, (vii) to (ix), inclusive,
and the last paragraph of subsection (b)(1) of this Section.
(c) At the applicable Closing Time, there shall not have been, since the
date of the applicable Terms Agreement or since the respective dates as of
which information is given in the Prospectus, any material adverse change in
the financial condition of the Company and its subsidiaries considered as
one enterprise, or in the results of operations or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Lead Manager shall have
received a certificate of the Chairman, the President or a Vice President of
the Company, dated as of such Closing Time, to the effect that there has
been no such material adverse change and to the effect that the other
representations and warranties of the Company contained in Section 1 are
true and correct with the same force and effect as though such Closing Time
were a Representation Date. As used in Section 5(c), the term "Prospectus"
means the Prospectus in the form first used to confirm sales of the Offered
Securities.
(d) The Lead Manager shall have received from Deloitte & Touche or other
independent certified public accountant acceptable to the Lead Manager a
letter, dated as of the date of the applicable Terms Agreement and delivered
at such time, in form heretofore agreed to.
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<PAGE>
(e) The Lead Manager shall have received from Deloitte & Touche or other
independent certified public accountant acceptable to the Lead Manager a
letter, dated as of the applicable Closing Time, reconfirming or updating
the letter required by subsection (d) of this Section to the extent that may
be reasonably requested by the Lead Manager.
(f) At the applicable Closing Time, counsel for the International
Managers shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Offered Securities as herein contemplated and
related proceedings or in order to evidence the accuracy and completeness of
any of the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Offered Securities as herein
contemplated shall be satisfactory in form and substance to the Lead Manager
and counsel for the International Managers.
(g) In the event the option provided in the applicable Terms Agreement
as set forth in Section 2 hereof is exercised by the U.S. Representative
with respect to all or any portion of the Option Securities, the
representations and warranties of the Company contained herein and the
statements in any certificates furnished by the Company hereunder shall be
true and correct as of each Date of Delivery, and the Lead Manager shall
have received:
(1) A certificate, dated such Date of Delivery, of the President or a
Vice President of the Company, in their capacities as such, confirming
that the certificate delivered at Closing Time pursuant to Section 4(c)
hereof remains true and correct as of such Date of Delivery.
(2) The favorable opinion of Shearman & Sterling, counsel for the
Company, in form and substance satisfactory to the Lead Manager, dated
such Date of Delivery, relating to the Option Securities and otherwise
substantially to the same effect as the opinion required by Section
4(b)(1) hereof.
(3) The favorable opinion of the General Counsel of the Company, in
form and substance satisfactory to the Lead Manager, dated such Date of
Delivery, relating to the Option Securities and otherwise substantially
to the same effect as the opinion required by Section 4(b)(2) hereof.
(4) The favorable opinion of Brown & Wood, counsel for the
International Managers, dated such Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the opinion
required by Section 4(b)(3) hereof.
(5) A letter from Deloitte & Touche or other independent certified
public accountant acceptable to the Lead Manager, in form and substance
satisfactory to the Lead Manager and dated such Date of Delivery,
substantially the same in scope and substance as the letter furnished to
the Lead Manager pursuant to Section 4(e) hereof, except that the
"specified date" in the letter furnished pursuant to this Section 4(g)(5)
shall be a date not more than five days prior to such Date of Delivery.
If any condition specified in this Section shall not have been fulfilled
when and as required to be fulfilled, this Agreement may be terminated by the
Lead Manager by notice to the Company at any time at or prior to the applicable
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 5.
SECTION 5. PAYMENT OF EXPENSES. The Company will pay all expenses incident
to the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement and all amendments thereto,
and the printing of this Agreement and the U.S. Underwriting Agreement, (ii) the
preparation, issuance and delivery of the Underwritten Securities to the
International Managers, (iii) the fees and disbursements of the Company's
counsel and accountant, (iv) the qualification of the Underwritten Securities
under securities laws in accordance with the provisions of Section 3(g),
including filing fees and the fees and disbursements of counsel for the
International Managers in connection therewith and in connection with the
preparation of any Blue
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<PAGE>
Sky Surveys and Legal Investment Surveys, (v) the printing and delivery to the
International Managers in quantities as hereinabove stated of copies of the
Registration Statement and any amendments thereto and of the International
Prospectus and any amendment or supplement thereto, (vi) the printing and
delivery to the International Managers of copies of the Certificate of
Designation and the Deposit Agreement, if applicable, and any Blue Sky Surveys
and Legal Investment Surveys, (vii) the fees, if any, of rating agencies, and
(viii) the fees and expenses, if any, incurred in connection with the listing of
the Offered Securities and the Common Stock issuable upon conversion of any
Preferred Shares, if applicable, on any national securities exchange.
If this Agreement is terminated by the Lead Manager in accordance with the
provisions of Section 4 or Section 9(i), the Company shall reimburse the
International Managers named in the applicable Terms Agreement for all of their
out-of-pocket expenses, including the reasonable fees and disbursements of
counsel for the International Managers.
SECTION 6. INDEMNIFICATION. (a) The Company agrees to indemnify and hold
harmless each International Manager and each person, if any, who controls any
International Manager within the meaning of Section 16 of the 1933 Act as
follows:
(i) against any and all loss, liability, claim, damage and expense
whatsoever arising out of any untrue statement or alleged untrue statement
of a material fact contained in the Registration Statement (or any amendment
thereto), or any omission or alleged omission therefrom, of a material fact
required to be stated therein or necessary to make the statement therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact contained in the Prospectus (or any amendment
or supplement thereto), or the omission or alleged omission therefrom, of a
material fact necessary in order to make the statement therein, in the light
of the circumstances under which they were made, not misleading, unless such
untrue statement or omission or such alleged untrue statement or omission
was made in reliance upon and in conformity with written information
furnished to the Company by or on behalf of any International Manager
through the Lead Manager expressly for use in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto);
(ii) against any and all loss, liability, claim, damage and expense
whatsoever to the extent of the aggregate amount paid in settlement of any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or
omission, if such settlement is effected with the written consent of the
Company; and
(iii) against any and all expense whatsoever reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such statement or
omission, or any such alleged untrue statement or omission, to the extent
that any such expense is not paid under (i) or (ii) above.
In no case shall the Company be liable under this indemnity agreement with
respect to any claim made against any International Manager or any such
controlling person unless the Company shall be notified in writing of the nature
of the claim within a reasonable time after the assertion thereof, but failure
so to notify the Company shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. The Company shall be
entitled to participate at it own expense in the defense, or if it so elects
within a reasonable time after receipt of such notice, to assume the defense for
any suit brought to enforce any such claim, but if the Company elects to assume
the defense, such defense shall be conducted by counsel chosen by it and
satisfactory to the International Manager or Managers or controlling person or
persons, defendant or defendant in any suit so brought. In the event that the
Company elects to assume the defense of any such suit and retains such counsel,
the International Manager or Managers or controlling person or persons,
defendant or defendant in the suit shall bear the fees and expenses of any
additional counsel thereafter retained by them. In the event that the parties to
any such action (including impleaded parties) include both the Company and
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<PAGE>
one or more International Managers and any such International Manager shall have
been advised by counsel chosen by it and satisfactory to the Company that there
may be one or more legal defenses available to it which are different from or
additional to those available to the Company, the Company shall not have the
right to assume the defense of such action on behalf of such International
Manager and will reimburse such International Manager and any person controlling
such International Manager as aforesaid for the reasonable fees and expenses of
any counsel retained by them, it being understood that the Company shall not, in
connection with any one action or separate but similar or related actions in the
same jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate firm of
attorneys for all such International Managers and controlling persons, which
firm shall be designated in writing by the Lead Manager. The Company agrees to
notify the Lead Manager within a reasonable time of the assertion of any claim
against it, any of it officers or directors or any person, if any, who controls
the Company within the meaning of Section 15 of the 1933 Act, in connection with
the sale of the Offered Securities.
(b) Each International Manager severally agrees that it will indemnify and
hold harmless the Company and each of its officers who signs the Registration
Statement and each of it directors and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act to the same extent as
the foregoing indemnity from the Company, but only with respect to statements or
omissions made in the Prospectus (or any amendment or supplement thereto) or the
Registration Statement (or any amendment thereto) in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
such International Manager through the Lead Manager expressly for use in the
Registration Statement (or any amendment thereto) or the Prospectus (or any
amendment or supplement thereto). In case any action shall be brought against
the Company or any person so indemnified based on the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) and in respect of which indemnity may be sought against any
International Manager, such International Manager shall have the right and
duties given to the Company, and the Company and each person so indemnified
shall have the right and duties given to the International Managers, by the
provisions of subsection (a) of this Section.
SECTION 7. CONTRIBUTION. If the indemnification provisions provided in
Section 6 above should under applicable law be unenforceable in respect of any
losses, liabilities, claims, damages or expenses (or actions in respect thereof)
referred to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
liabilities, claims, damages or expenses (or actions in respect thereof in such
proportion as is appropriate to reflect the relative benefit received by the
Company and the International Managers from the offering of the Underwritten
Securities and also the relative fault of the Company and the International
Managers in connection with the statements or omissions which resulted in such
losses, liabilities, claims, damages or expenses (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and the International Managers shall be deemed
to be in the same proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company and the total underwriting discounts
and commissions received by the International Managers, in each case as set
forth in the Prospectus, bear to the aggregate public offering price of the
Underwritten Securities. The relative fault shall be determined by reference to,
among other things, whether the indemnified party failed to give the notice
required under Section 6 above including the consequences of such failure, and
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by the Company or the International Managers and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission of the Company and the International Managers,
directly or through the Lead Manager of the International Managers. The Company
and the International Managers agree that it would not be just and equitable if
contribution pursuant to this Section 7 were determined by per capita allocation
(even if the International Managers were treated as one entity for such purpose)
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this Section 7. The amount paid or
payable by an indemnified party as a result of the losses, liabilities,
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<PAGE>
claims, damages or expenses (or actions in respect thereof) referred to above in
this Section 7 shall be deemed to include any legal or other expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. Notwithstanding the provisions of this Section 7, no
International Manager shall be required to contribute any amount in excess of
the amount by which the total price at which the Underwritten Securities
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such International Manager has otherwise
been required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the International Managers in this Section
7 to contribute are several in proportion to their respective underwriting
obligations and not joint.
The obligations of the Company under this Section 7 shall be in addition to
any liability which the Company may otherwise have and shall extend, upon the
same terms and conditions, to each person, if any, who controls any
International Manager within the meaning of Section 15 of the 1933 Act; and the
obligations of the International Managers under this Section 7 shall be in
addition to any liability which the respective International Managers may
otherwise have and shall extend, upon the same terms and conditions, to each
officer who signs the Registration Statement and each director of the Company
and to each person, if any, who controls the Company within the meaning of
Section 15 of the 1933 Act.
SECTION 8. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY. All representations, warranties and agreements contained in this
Agreement, or contained in certificates of officers of the Company submitted
pursuant hereto, shall remain operative and in full force and effect, regardless
of any termination of this Agreement, or any investigation made by or on behalf
of any International Manager or controlling person, or by or on behalf of the
Company, and shall survive delivery of any Underwritten Securities to the
International Managers.
SECTION 9. TERMINATION. The Lead Manager may terminate this Agreement,
immediately upon notice to the Company, at any time prior to the applicable
Closing Time (i) if there has been, since the date of the applicable Terms
Agreement or since the respective dates as of which information is given in the
Prospectus, any material adverse change in the financial condition of the
Company and its subsidiaries considered as one enterprise, or in the results of
operations or business prospects of the Company and its subsidiaries considered
as one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any outbreak or escalation of hostilities or other
calamity or crisis the effect of which on the financial markets of the United
States or London, England is such as to make it, in the judgment of the Lead
Manager, impracticable to market the Underwritten Securities or enforce
contracts for the sale of the Underwritten Securities, or (iii) if trading on
either the American Stock Exchange or the New York Stock Exchange has been
suspended, or minimum or maximum prices for trading have been fixed, or maximum
ranges for prices for securities have been required, by either of said exchanges
or by order of the Commission or any other governmental authority, or if a
banking moratorium has been declared by either Federal or New York authorities.
In the event of any such termination, (a) the covenants set forth in Section 3
with respect to any offering of Underwritten Securities shall remain in effect
so long as any International Manager retains beneficial ownership of any such
Underwritten Securities purchased from the Company pursuant to the applicable
Terms Agreement and (y) the covenant set forth in Section 3(c), the provisions
of Section 5, the indemnity agreement set forth in Section 6, the contribution
agreement set forth in Section 7 and the provisions of Sections 8 and 13 shall
remain in effect. As used in this Section 9, the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Offered Securities.
SECTION 10. DEFAULT. If one or more of the International Managers shall
fail at the applicable Closing Time to purchase the Initial Underwritten
Securities which it or they are obligated to
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<PAGE>
purchase under the applicable Terms Agreement (the "Defaulted Securities"), then
the Lead Manager shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting International Managers, or
any other underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth. If, however, during such 24 hours the Lead Manager shall not have
completed such arrangements for the purchase of all of the Defaulted Securities,
then:
(a) if the number of Defaulted Securities does not exceed 10% of the
number of the Initial Securities, the non-defaulting International Managers
named in such Terms Agreement shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
thereunder bear to the underwriting obligations of all such non-defaulting
International Managers, or
(b) if the number of Defaulted Securities exceeds 10% of the number of
the Initial Securities, this Agreement shall terminate without any liability
on the part of any non-defaulting International Managers or the Company.
No action taken pursuant to this Section shall relieve any defaulting
International Manager from liability in respect of any default of such
International Manager under this Agreement.
In the event of a default by any International Manager or International
Managers as set forth in this Section, either the Lead Manager or the Company
shall have the right to postpone the applicable Closing Time for a period not
exceeding seven days in order that any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements may be
effected.
SECTION 11. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
International Managers shall be directed to the Lead Manager; notices to the
Company shall be directed to it at John Deere Road, Moline, Illinois 61265-8098,
Attention: Treasurer.
SECTION 12. PARTIES. This Agreement shall inure to the benefit of and be
binding upon the Company and any International Manager who becomes a party
hereto, and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the parties hereto or thereto and their respective
successors and the controlling persons and officers and directors referred to in
Sections 6 and 7 and their heirs and legal representatives, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the parties and
their respective successors and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Underwritten Securities from
any International Manager shall be deemed to be a successor by reason merely of
such purchase.
SECTION 13. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State.
SECTION 14. COUNTERPARTS. The applicable Terms Agreement may be executed
in one or more counterparts, and if executed in more than one counterpart the
executed counterparts shall constitute a single instrument.
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<PAGE>
EXHIBIT A
DEERE & COMPANY
(A DELAWARE CORPORATION)
[TITLE OF SECURITIES]
DELAYED DELIVERY CONTRACT
, 19
DEERE & COMPANY
John Deere Road
Moline, Illinois 61265-8098
Attention:
Dear Sirs:
The undersigned hereby agrees to purchase from Deere & Company (the
"Company"), and the Company agrees to sell to the undersigned on ,
19 (the "Delivery Date"),
of the Company's [insert title of security] (the "Securities"), offered by the
Company's Prospectus dated , 19 , as supplemented by its Prospectus
Supplement dated , 19 , receipt of which is hereby acknowledged at
a purchase price of to the Delivery Date, and on the further terms and
conditions set forth in this contract.
Payment for the Securities which the undersigned has agreed to purchase on
the Delivery Date shall be made to the Company or its order by certified or
official bank check in New York Clearing House funds at the office of
, on the Delivery Date, upon delivery to the undersigned of the
Securities to be purchased by the undersigned in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date shall be subject only to the conditions that (1)
the purchase of Securities to be made by the undersigned shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company, on or before , 19 ,
shall have sold to the Underwriters of the Securities (the "Underwriters") such
number of the Securities as is to be sold to them pursuant to the Terms
Agreement dated , 19 between the Company and the Underwriters. The
obligation of the undersigned to take delivery of and make payment for
Securities shall not be affected by the failure of any purchaser to take
delivery of and make payments for Securities pursuant to other contracts similar
to this contract. The undersigned represents and warrants to you that its
investment in the Securities is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment.
Promptly after completion of the sale to the Underwriters, the Company will
mail or deliver to the undersigned at its address set forth below notice to such
effect, accompanied by a copy of the opinion of counsel for the Company
delivered to the Underwriters in connection therewith.
By the execution hereof, the undersigned represents and warrants to the
Company that all necessary corporate action for the due execution and delivery
of this contract and the payment for and purchase of the Securities has been
taken by it and no further authorization or approval of any governmental or
other regulatory authority is required for such execution, delivery, payment or
<PAGE>
purchase, and that, upon acceptance hereof by the Company and mailing or
delivery of a copy as provided below, this contract will constitute a valid and
binding agreement of the undersigned in accordance with its terms.
This contract will inure to the benefit of and binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that the Company will not accept Delayed Delivery Contracts
for a number of Securities in excess of and that the acceptance of any
Delayed Delivery Contract is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first-come, first-served basis. If this
contract is acceptable to the Company, it is requested that the Company sign the
form of acceptance on a copy hereof and mail or deliver a signed copy hereof to
the undersigned at its address set forth below. This will become a binding
contract between the Company and the undersigned when such copy is so mailed or
delivered.
This Agreement shall be governed by the laws of the State of New York.
Yours very truly,
--------------------------------------
(Name of Purchaser)
By
--------------------------------------
(Title)
--------------------------------------
--------------------------------------
(Address)
Accepted as of the date first above
written.
DEERE & COMPANY
By
- --------------------------------------
(Title)
A-2
<PAGE>
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone number of the representative of the Purchaser with
whom details of delivery on the Delivery Date may be discussed are as follows:
(Please print.)
<TABLE>
<CAPTION>
TELEPHONE NO.
(INCLUDING
NAME AREA CODE)
- --------------------------------------------------------------------------------------------------- -------------
<S> <C>
</TABLE>
A-3
<PAGE>
EXHIBIT 4.1
14814/NYL4
[Regular]
- --------------------------------------------------------------------------------
DEERE & COMPANY
TO
THE CHASE MANHATTAN BANK
(National Association),
Trustee
--------------------------------------
Indenture
Dated as of ___________, 199_
--------------------------------------
Providing for the Issuance
of
Senior Debt Securities
<PAGE>
DEERE & COMPANY
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of _______, 199_
TRUST INDENTURE INDENTURE
ACT SECTION 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
----
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
<PAGE>
ii PAGE
----
SECTION 312. Currency and Manner of Payments in Respect
of Securities ......................................... 36
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..... 44
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee................................. 45
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........................ 48
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
<PAGE>
iii PAGE
----
SECTION 605. Money Held in Trust.................................... 52
SECTION 606. Compensation and Reimbursement......................... 53
SECTION 607. Corporate Trustee Required; Eligibility................ 53
SECTION 608. Resignation and Removal; Appointment of Successor...... 53
SECTION 609. Acceptance of Appointment by Successor................. 55
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business............................................... 56
SECTION 611. Appointment of Authenticating Agent.................... 56
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..................................... 58
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 and Interest............ 64
SECTION 1002. Maintenance of Office or Agency....................... 65
SECTION 1003. Money for Securities Payments to Be Held in Trust..... 66
<PAGE>
iv PAGE
----
SECTION 1004. Additional Amounts.................................... 67
SECTION 1005. Statement as to Compliance............................ 68
SECTION 1006. Limitation on Liens................................... 69
SECTION 1007. Limitation on Sale and Lease-back Transactions........ 73
SECTION 1008. Waiver of Certain Covenants........................... 74
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.............................. 74
SECTION 1102. Election to Redeem; Notice to Trustee................. 74
SECTION 1103. Selection by Trustee of Securities to Be Redeemed..... 74
SECTION 1104. Notice of Redemption.................................. 75
SECTION 1105. Deposit of Redemption Price........................... 76
SECTION 1106. Securities Payable on Redemption Date................. 77
SECTION 1107. Securities Redeemed in Part........................... 77
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.............................. 78
SECTION 1202. Satisfaction of Sinking Fund Payments
with Securities....................................... 78
SECTION 1203. Redemption of Securities for Sinking Fund............. 79
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.............................. 79
SECTION 1302. Repayment of Securities............................... 79
SECTION 1303. Exercise of Option.................................... 80
SECTION 1304. When Securities Presented for Repayment
Become Due and Payable................................ 80
SECTION 1305. Securities Repaid in Part............................. 81
<PAGE>
v PAGE
----
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance..................... 81
SECTION 1402. Defeasance and Discharge.............................. 82
SECTION 1403. Covenant Defeasance................................... 82
SECTION 1404. Conditions to Defeasance or Covenant Defeasance....... 83
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions......... 84
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called............. 86
SECTION 1502. Call, Notice and Place of Meetings.................... 86
SECTION 1503. Persons Entitled to Vote at Meetings.................. 86
SECTION 1504. Quorum; Action........................................ 86
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings............................... 88
SECTION 1506. Counting Votes and Recording Action of Meetings....... 89
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
<PAGE>
INDENTURE, dated as of _______, 199_, between DEERE & COMPANY, a
Delaware corporation (hereinafter called the "Company"), having its principal
office at John Deere Road, Moline, Illinois 61265 and THE CHASE MANHATTAN BANK
(National Association), a national banking association organized and existing
under the laws of the United States of America, as Trustee (hereinafter called
the "Trustee"), having its Corporate Trust Office at 4 Chase MetroTech Center,
Brooklyn, New York 11245.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, which may or may not
be convertible into or exchangeable for any securities of any Person (including
the Company), and has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of the Securities,
unlimited as to principal amount, to bear such rates of interest, to mature at
such times and to have such other provisions as shall be fixed as hereinafter
provided.
This Indenture is subject to the provisions of the Trust Indenture
Act of 1939, as amended, that are required to be part of this Indenture and
shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities and coupons, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
<PAGE>
2
(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.
<PAGE>
3
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law or executive order to
close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A.,
or its successor.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a
written request or order signed in the name of the Company by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer, the
Comptroller or an Assistant Comptroller, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"CONVERSION DATE" has the meaning specified in Section 312(d).
"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
<PAGE>
4
"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.
<PAGE>
5
"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
<PAGE>
6
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
<PAGE>
7
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
<PAGE>
8
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
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9
any, on such Securities are payable as specified and as contemplated by Sections
301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGISTERED SECURITY" shall mean any Security which is registered
in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"REPAYMENT DATE" means, when used with respect to any Security to
be repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any Security to
be repaid at the option of the Holder, the price at which it is to be repaid by
or pursuant to this Indenture.
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; PROVIDED,
HOWEVER, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities" with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series
as to which such Person is not Trustee.
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10
"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
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11
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
<PAGE>
12
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
<PAGE>
13
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
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14
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration Division, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address as
it appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any notice
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified
with respect to any Securities pursuant to Section 301, where this Indenture
provides for notice to Holders of Bearer Securities of any event, such notice
shall be sufficiently given if published in an Authorized Newspaper in The City
of New York and in such other city or cities as may be specified in such
Securities on a Business Day, such publication to be not later than the latest
date, and not earlier than the earliest date, prescribed for the giving of such
notice. Any such notice shall be deemed to have been given on the date of such
publication or, if published more than once, on the date of the first such
publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to
<PAGE>
15
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,
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16
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),
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17
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
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18
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;
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19
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the Currency or Currencies in which, and other terms and conditions
upon which Securities, of the series may be redeemed, in whole or in part,
at the option of the Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or prices
at which, the Currency or Currencies in which, and other terms and
conditions upon which, Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other than
denominations of $5,000, the denomination or denominations in which any
Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of the
principal amount of Securities of the series that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section
502 or the method by which such portion shall be determined;
(11) if other than Dollar, 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,
<PAGE>
20
without limitation, on one or more Currencies, commodities, equity indices
or other indices), and the manner in which such amounts shall be
determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in one or more Currencies, other than
that in which such Securities are denominated or stated to be payable, the
period or periods within which (including the Election Date), and the
terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency or
Currencies in which such Securities are denominated or stated to be
payable and the Currency or Currencies in which such Securities are to be
paid, in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section 1008) of
the Company with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided
in Section 305, and, if Registered Securities of the series are to be
issuable as a global Security, the identity of the depository for such
series;
(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
<PAGE>
21
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
<PAGE>
22
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
<PAGE>
23
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,
<PAGE>
24
opinion and certificates, with appropriate modifications to cover such future
issuances, shall be delivered at or before the time of issuance of the first
Security of such series.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such Securities
pursuant to this Indenture will affect the Trustee's own rights, duties,
obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee. Notwithstanding
the generality of the foregoing, the Trustee will not be required to
authenticate Securities denominated in a Foreign Currency if the Trustee
reasonably believes that it would be unable to perform its duties with respect
to such Securities.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form, or,
if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their 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
<PAGE>
25
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
<PAGE>
26
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
<PAGE>
27
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
<PAGE>
28
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
<PAGE>
29
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
<PAGE>
30
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
<PAGE>
31
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
<PAGE>
32
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
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33
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 Date of such Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or
<PAGE>
34
periods during which and the price or prices at which such redemption may occur
during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. OPTIONAL EXTENSION OF MATURITY. The provisions of
this Section 308 may be made applicable to any series of Securities pursuant to
Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity of any Security of
such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period") up
to but not beyond the date (the "Final Maturity") set forth on the 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
<PAGE>
35
manner provided for in Section 106, to the Holder of such Security not later
than 40 days prior to the Original Stated Maturity a notice (the "Extension
Notice") indicating (i) the election of the Company to extend the Stated
Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any,
applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in the next paragraph, such Security will have the same terms as prior to the
transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
If the Company extends the Stated Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the Company
on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on
the Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS. Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in whose name such
Registered Security is registered as the owner of such Security for the purpose
of receiving payment of principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Registered Security and for all
other purposes whatsoever, whether or not such Registered Security be overdue,
and neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat 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
<PAGE>
36
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
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37
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
<PAGE>
38
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
<PAGE>
39
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
<PAGE>
40
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
<PAGE>
41
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
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42
(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
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43
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
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44
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
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45
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:
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46
(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 in the terms thereof) (and
premium, if
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47
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;
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48
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
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49
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
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(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
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51
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
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52
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.
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53
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.
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54
(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
<PAGE>
55
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
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56
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
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57
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.
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58
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).
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59
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
such 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.
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60
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge with or into any other
corporation or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(1) either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such consolidation or
into which the Company is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company
substantially as an entirety shall expressly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of (and premium, if any) and interest, if any, on all the
Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing;
(3) if as a result thereof any property or assets of the Company
or a Restricted Subsidiary would become subject to any mortgage, lien,
pledge, charge or other encumbrance not permitted by (i) through (xi) of
paragraph (a) of Section 1006 or paragraph (b) of Section 1006, compliance
shall be effected with the first clause of paragraph (a) of Section 1006;
and
(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.
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61
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
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62
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 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
(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;
or reduce the principal amount thereof or the rate of interest thereon, or
any premium payable upon the redemption thereof, or change any obligation
of the Company to pay Additional Amounts pursuant to Section 1004 (except
as contemplated by Section 801(1) and
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63
permitted by Section 901(1)), or reduce the portion of the principal of an
Original Issue Discount Security or Indexed Security that would be due and
payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, or adversely affect any right of repayment at the
option of the Holder of any Security, or change any Place of Payment
where, or the Currency in which, any Security or any premium or interest
thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof
(or, in the case of redemption or repayment at the option of the Holder,
on or after the Redemption Date or the Repayment Date, as the case may
be), or adversely affect any right to convert or exchange any Security as
may be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements
of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
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.
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64
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 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
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65
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
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66
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
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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
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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.
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SECTION 1006. LIMITATION ON LIENS. (a) The Company will not,
nor will it permit any Restricted Subsidiary to, issue, incur, assume or
guarantee any debt (hereinafter in this Article Ten referred to as "Debt")
secured by any mortgage, security interest, pledge, lien or other encumbrance
(hereinafter called "mortgage" or "mortgages") upon any Important Property of
the Company or of a Restricted Subsidiary or upon any shares of stock or
indebtedness of any Restricted Subsidiary (whether such Important Property,
shares of stock or indebtedness is now owned or hereafter acquired) without in
any such case effectively providing, concurrently with the issuance, incurrence,
assumption or guaranty of any such Debt, that the Securities (together with, if
the Company shall so determine, any other indebtedness of or guaranteed by the
Company or such Restricted Subsidiary ranking equally with the Securities and
then existing or thereafter created) shall be secured equally and ratably with
or prior to such Debt; PROVIDED, HOWEVER, that the foregoing restrictions
shall not apply to
(i) mortgages on any property acquired, constructed or improved by
the Company or any Restricted Subsidiary after the date of this Indenture
which are created or assumed contemporaneously with, or within 120 days
after, such acquisition, construction or improvement to secure or provide
for the payment of all or any part of the purchase price of such property
or the cost of such construction or improvement incurred after the date of
this Indenture, or (in addition to mortgages contemplated by clauses (ii),
(iii) and (iv) below) mortgages on any property existing at the time of
acquisition thereof; PROVIDED that such mortgages shall not apply to any
Important Property theretofore owned by the Company or any Restricted
Subsidiary other than, in the case of any such construction or
improvement, any theretofore unimproved real property on which the
property so constructed, or the improvement, is located;
(ii) mortgages on any property, shares of stock, or indebtedness
existing at the time of acquisition thereof from a corporation which is
consolidated with or merged into, or substantially all of the assets of
which are acquired by, the Company or a Restricted Subsidiary;
(iii) mortgages on property of a corporation existing at the time
such corporation becomes a Restricted Subsidiary;
(iv) mortgages to secure Debt of a Restricted Subsidiary to the
Company or to another Restricted Subsidiary;
(v) mortgages in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, to
secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or the cost of
constructing or improving the property subject to such mortgages and
mortgages
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given to secure indebtedness incurred in connection with the financing of
construction of pollution control facilities, the interest on which
indebtedness is exempt from income taxes under the Internal Revenue Code
of the United States of America;
(vi) any deposit or pledge of assets (1) with any surety company or
clerk of any court, or in escrow, as collateral in connection with, or in
lieu of, any bond on
appeal from any judgment or decree against the Company or a Restricted
Subsidiary, or in connection with other proceedings or actions at law or
in equity by or against the Company or a Restricted Subsidiary, or (2) as
security for the performance of any contract or undertaking not directly
or indirectly related to the borrowing of money or the securing of
indebtedness, if made in the ordinary course of business, or (3) with any
governmental agency, which deposit or pledge is required or permitted to
qualify the Company or a Restricted Subsidiary to conduct business, to
maintain self-insurance, or to obtain the benefits of any law pertaining
to workers' compensation, unemployment insurance, old age pensions, social
security, or similar matters, or (4) made in the ordinary course of
business to obtain the release of mechanics', workmen's, repairmen's,
warehousemen's or similar liens, or the release of property in the
possession of a common carrier;
(vii) mortgages existing on property acquired by the Company or a
Restricted Subsidiary through the exercise of rights arising out of
defaults on receivables acquired in the ordinary course of business;
(viii)judgment liens, so long as the finality of such judgment is
being contested in good faith and execution thereon is stayed;
(ix) mortgages for the sole purpose of extending, renewing or
replacing in whole or in part Debt secured by any mortgage referred to in
the foregoing clauses (i) to (viii), inclusive, or in this clause (ix);
PROVIDED, HOWEVER, that the principal amount of Debt secured thereby
shall not exceed the principal amount of Debt so secured at the time of
such extension, renewal or replacement, and that such extension, renewal
or replacement shall be limited to all or a part of the property which
secured the mortgage so extended, renewed or replaced (plus improvements
on such property);
(x) liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by appropriate
proceedings; landlord's liens on property held under lease; and any other
liens of a nature similar to those hereinabove described in this clause
(x) which do not, in the opinion of the Company, materially impair the use
of such property in the operation of the business of the Company or a
Restricted Subsidiary or the value of such property for the purposes of
such business;
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(xi) any transaction characterized as a sale of receivables (retail
or wholesale) but reflected as secured indebtedness on a balance sheet in
conformity with generally accepted accounting principles then in effect;
(xii) mortgages on Margin Stock owned by the Company and its
Restricted Subsidiaries to the extent such Margin Stock so mortgaged
exceeds 25% of the fair market value of the sum of the Important Property
of the Company and the Restricted Subsidiaries plus the shares of stock
(including Margin Stock) and indebtedness issued or incurred by the
Restricted Subsidiaries; and
(xiii)mortgages on any Important Property of, or any shares of stock
or indebtedness issued or incurred by, any Restricted Subsidiary organized
under the laws of Canada.
(b) The provisions of paragraph (a) of this Section 1006 shall not
apply to the issuance, incurrence, assumption or guarantee by the Company or any
Restricted Subsidiary of Debt secured by a mortgage which would otherwise be
subject to the foregoing restrictions up to an aggregate amount which, together
with all other Debt of the Company and its Restricted Subsidiaries that is
secured by mortgages (other than mortgages permitted by paragraph (a) of this
Section 1006) and would otherwise be subject to the foregoing restrictions and
the Attributable Debt in respect of Sale and Lease-back Transactions (as defined
in Section 1007) in existence at such time (other than Sale and Lease-back
Transactions which, if the Attributable Debt in respect of such Sale and
Lease-back had been a mortgage, would have been permitted by subdivision (i) of
paragraph (a) of this Section 1006 and other Sale and Lease-back Transactions
the proceeds of which have been applied or committed to be applied in accordance
with paragraph (b) or (c) of Section 1007) does not at the time exceed 5% of
Consolidated Net Tangible Assets, as shown on the audited consolidated balance
sheet contained in the latest annual report to stockholders of the Company.
The term "RESTRICTED SUBSIDIARY" shall mean any Subsidiary (i)
engaged in, or whose principal assets consist of property used by the Company or
any Restricted Subsidiary in, the manufacture of products within the United
States of America or Canada, or in the sale of products principally to customers
located in the United States of America or Canada except any corporation which
is a retail dealer in which the Company has, directly or indirectly, an
investment under an arrangement providing for the liquidation of such
investment, or (ii) which the Company shall designate as a Restricted Subsidiary
in an Officers' Certificate delivered to the Trustee.
The term "IMPORTANT PROPERTY" shall mean (i) any manufacturing
plant, including land, all buildings and other improvements thereon, and all
manufacturing machinery and equipment located therein, used by the Company or a
Restricted Subsidiary primarily for the manufacture of products to be sold by
the Company or such Restricted Subsidiary, (ii) the executive office and
administrative building of the Company in Moline,
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Illinois, and (iii) research and development facilities, including land and
buildings and other improvements thereon and research and development machinery
and equipment located therein, except in any case property of which the
aggregate fair value as determined by the Board of Directors does not at the
time exceed 1% of Consolidated Net Tangible Assets, as shown on the audited
consolidated balance sheet contained in the latest annual report to stockholders
of the Company.
The term "CONSOLIDATED NET TANGIBLE ASSETS" shall mean the
aggregate amount of assets (less applicable reserves and other items properly
deductible in accordance with generally accepted accounting principles) of the
Company and of its consolidated Subsidiaries after deducting therefrom (a) all
current liabilities (excluding any constituting funded debt, as defined in
Section 1007, by reason of their being renewable or extendable) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles.
The term "ATTRIBUTABLE DEBT" shall mean, as of any particular
time, the present value, discounted at a rate per annum equal to the weighted
average interest rate of all Securities Outstanding at the time under this
Indenture compounded semiannually, of the obligation of a lessee for rental
payments during the remaining term of any lease (including any period for which
such lease has been extended or may, at the option of the lessor, be extended);
the net amount of rent required to be paid for any such period shall be the
total amount of the rent payable by the lessee with respect to such period, but
may exclude amounts required to be paid on account of maintenance and repairs,
insurance, taxes, assessments, water rates and similar charges; and, in the case
of any lease which is terminable by the lessee upon the payment of a penalty,
such net amount shall also include the amount of such penalty, but no rent shall
be considered as required to be paid under such lease subsequent to the first
date upon which it may be so terminated.
(c) If, upon any consolidation or merger of any Restricted
Subsidiary with or into any other corporation, or upon any consolidation or
merger of any other corporation with or into the Company or any Restricted
Subsidiary or upon any sale or conveyance of the property of any Restricted
Subsidiary as an entirety or substantially as an entirety to any other Person,
or upon any acquisition by the Company or any Restricted Subsidiary by purchase
or otherwise of all or any part of the property of any other Person, any
Important Property theretofore owned by the Company or such Restricted
Subsidiary would thereupon become subject to any mortgage not permitted by the
terms of paragraph (a) or (b) of this Section 1006, the Company, prior to such
consolidation, merger, sale or conveyance, or acquisition, will, or will cause
such Restricted Subsidiary to, secure payment of the principal of and interest
on the Securities (equally and ratably with or prior to any other indebtedness
of the Company or such Subsidiary then entitled thereto) by a direct lien on all
such property prior to all liens other than any liens theretofore existing
thereon by supplemental indenture hereto or otherwise.
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(d) If at any time the Company or any Restricted Subsidiary shall
issue, incur, assume or guarantee any Debt secured by any mortgage not permitted
by this Section 1006, to which the covenant in paragraph (a) of this Section
1006 is applicable, the Company will promptly deliver to the Trustee
(i) an Officers' Certificate stating that the covenant of the
Company contained in paragraph (a) or (c) of this Section 1006 has been
complied with; and
(ii) an Opinion of Counsel to the effect that such covenant has
been complied with, and that any instruments executed by the Company in
the performance of such covenant comply with the requirements of such
covenant.
In the event that the Company shall hereafter secure the Securities
equally and ratably with or prior to any other obligation or indebtedness
pursuant to the provisions of this Section 1006, the Trustee is hereby
authorized to enter into an indenture or agreement supplemental hereto and to
take such action, if any, as it may deem advisable to enable it to enforce
effectively the rights of the holders of the Securities so secured, equally and
ratably with or prior to such other obligations or indebtedness.
SECTION 1007. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
The Company will not, nor will it permit any Restricted Subsidiary to, enter
into any arrangement with any Person providing for the leasing to the Company or
any Restricted Subsidiary of any Important Property owned or hereafter acquired
by the Company or such Restricted Subsidiary (except for temporary leases for a
term, including any renewal thereof, of not more than three years and except for
leases between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries), which Important Property has been or is to be sold or transferred
by the Company or such Restricted Subsidiary to such Person (herein referred to
as a "Sale and Lease-back Transaction") unless the net proceeds of such sale are
at least equal to the fair value (as determined by the Board of Directors) of
such property and either (a) the Company or such Restricted Subsidiary would be
entitled, pursuant to the provisions of (1) clause (i) of paragraph (a) of
Section 1006 or (2) paragraph (b) of Section 1006 hereof, to incur Debt secured
by a mortgage on the Important Property to be leased without equally and ratably
securing the Securities, or (b) the Company shall, and in any such case the
Company covenants that it will, within 120 days of the effective date of any
such arrangement, apply an amount equal to the fair value (as so determined) of
such property to the redemption pursuant to Section 1101 hereof or the purchase
and retirement of Securities or to the payment or other retirement of funded
debt for money borrowed, incurred or assumed by the Company which ranks senior
to or pari passu with the Securities or of funded debt for money borrowed,
incurred or assumed by any Restricted Subsidiary (other than, in either case,
funded debt owned by the Company or any Restricted Subsidiary), or (c) the
Company shall, at or prior to the time of entering into the Sale and Lease-back
Transaction, enter into a bona fide commitment or commitments to expend for the
acquisition or improvement of an Important Property an amount at least equal to
the fair value (as so determined) of such property. For this purpose, funded
debt means any Debt
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which by its terms matures at or is extendable or renewable at the sole option
of the obligor without requiring the consent of the obligee to a date more than
twelve months after the date of the creation of such Debt.
SECTION 1008. WAIVER OF CERTAIN COVENANTS. The Company may omit
in any particular instance to comply with any term, provision or condition set
forth in Sections 1006, 1007 and, as specified pursuant to Section 301(15) for
Securities of any series, in any covenants of the Company added to Article Ten
pursuant to Section 301(14) or Section 301(15) in connection with Securities of
a series, if before or after the time for such compliance the Holders of at
least a majority in principal amount of all outstanding Securities, by Act of
such Holders, waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any series
which are redeemable before their Stated Maturity shall be redeemable in
accordance with their terms and (except as otherwise specified as contemplated
by Section 301 for Securities of any series) in accordance with this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company shall,
at least 60 days prior to the Redemption Date fixed by the Company (unless a
shorter notice shall be satisfactory to the Trustee), notify the Trustee in
writing of such Redemption Date and of the principal amount of Securities of
such series to be redeemed. In the case of any redemption of Securities prior
to the expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series issued on the same day with the
same terms are to be redeemed, the particular Securities to be redeemed shall be
selected not more than 60 days 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
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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,
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(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section
1106 will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities, together
in the case of Bearer Securities with all coupons appertaining thereto, if
any, maturing after the Redemption Date, are to be surrendered for payment
of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
on the Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
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SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest, if any) such
Securities shall if the same were interest-bearing cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; PROVIDED, HOWEVER,
that installments of interest on Bearer Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest, and PROVIDED FURTHER
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an
office or agency located outside the United States (except as otherwise provided
in Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price shall, until paid, bear
interest from the Redemption Date at the rate of interest set forth in such
Security or, in the case of 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
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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.
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SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not
less than 60 days prior to each sinking fund payment date for Securities of any
series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if any,
which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant to
Section 301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in cash
to the next ensuing mandatory sinking fund payment, and will also deliver to the
Trustee any Securities to be so delivered and credited. If such Officers'
Certificate shall specify an optional amount to be added in cash to the next
ensuing mandatory sinking fund payment, the Company shall thereupon be obligated
to pay the amount therein specified. Not less than 30 days before each such
sinking fund payment date the Trustee shall select the Securities to be redeemed
upon such sinking fund payment date in the manner specified in Section 1103 and
cause notice of the redemption thereof to be given in the name of and at the
expense of the Company in the manner provided in Section 1104. Such notice
having been duly given, the redemption of such Securities shall be made upon the
terms and in the manner stated in Sections 1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities
of any series before their Stated Maturity at the option of Holders thereof
shall be made in accordance with the terms of such Securities and (except as
otherwise specified by the terms of such series established pursuant to Section
301) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at
the Repayment Price thereof, together with interest, if any, thereon accrued to
the Repayment Date specified in or pursuant to the terms of such Securities.
The Company covenants that on or before the Repayment Date it will deposit with
the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) sufficient to pay the Repayment Price of, and (except if the
Repayment Date shall be an Interest Payment Date) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
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SECTION 1303. EXERCISE OF OPTION. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. To be
repaid at the option of the Holder, any Security so providing for such
repayment, with the "Option to Elect Repayment" form on the reverse of such
Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of Payment
therefor specified in the terms of such Security (or at such other place or
places of which the Company shall from time to time notify the Holders of such
Securities) not earlier than 45 days nor later than 30 days prior to the
Repayment Date. If less than the entire Repayment Price of such Security is to
be repaid in accordance with the terms of such Security, the portion of the
Repayment Price of such Security to be repaid, in increments of the minimum
denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of such Security surrendered that is not to be repaid, must be
specified. Any Security providing for repayment at the option of the Holder
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE
AND PAYABLE. If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this Article
and as provided by or pursuant to the terms of such Securities, such Securities
or the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the Repayment Price of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
PROVIDED, HOWEVER, that coupons whose Stated Maturity is on or prior to the
Repayment Date shall be payable only at an office or agency located outside the
United States (except as otherwise provided in Section 1002) and, unless
otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and PROVIDED FURTHER that, in the case of
Registered Securities, installments of interest, if any, whose Stated Maturity
is on or prior to the Repayment Date shall be payable (but without interest
thereon, unless the Company shall default in the payment thereof) to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
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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
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and any coupons appertaining thereto upon compliance with the conditions set
forth below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities and
any coupons appertaining thereto on the date the conditions set forth in Section
1404 are satisfied (hereinafter, "defeasance"). For this purpose, such
defeasance means that the Company shall be deemed to have paid and discharged
the entire indebtedness represented by such Outstanding Securities and any
coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and any coupons
appertaining thereto and this Indenture insofar as such Securities and any
coupons appertaining thereto are concerned (and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging the same), except
for the following which shall survive until otherwise terminated or discharged
hereunder: (A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto when such payments are due, (B) the
Company's obligations with respect to such Securities under Sections 305, 306,
1002 and 1003 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 1004, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option under
this Section notwithstanding the prior exercise of its option under Section 1403
with respect to such Securities and any coupons appertaining thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the Company shall be released from its obligations under
Sections 1006 and 1007, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any direction,
waiver, consent or declaration or Act of Holders (and the consequences of any
thereof) in connection with Sections 1006 and 1007, or such other covenant, but
shall continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth 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
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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
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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
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85
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.
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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
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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
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(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.
<PAGE>
89
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.
* * * * *
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.
<PAGE>
90
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
DEERE & COMPANY
By
-----------------------------------
[SEAL] Treasurer
Attest:
- ---------------------------------------
[Assistant Secretary]
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
By
-----------------------------------
Second Vice President
[SEAL]
Attest:
- ---------------------------------------
Assistant Secretary
<PAGE>
STATE OF ILLINOIS )
) ss:
COUNTY OF ROCK ISLAND )
On the _________ day of ____, 199_, before me personally came
_____________, to me known, who, being by me duly sworn, did depose and say that
he resides at __________________________; that he is __________________________
of Deere & Company, one of the corporations described in and which executed the
foregoing instrument; that he knows the seal of said corporation; that the seal
affixed to said instrument is such corporate seal; that it was so affixed by
authority of the Board of Directors of said corporation; and that he signed his
name thereto by like authority.
[Notarial Seal]
-------------------------------------
Notary Public
COMMISSION EXPIRES
STATE OF NEW YORK )
) ss:
COUNTY OF KINGS )
On the _________ day of _________, 199_, before me personally
came _______________________________, to me known, who, being by me duly
sworn, did depose and say that he resides at _________________________; that
he is a __________________ 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]
-------------------------------------
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 Deere & Company or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
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.
<PAGE>
A-1-2
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 S.A. IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] ____________________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Deere & Company or its
agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
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
<PAGE>
A-2-2
representing the above-captioned Securities excepted in the above-referenced
certificates of Member Organizations and (ii) as of the date hereof we have not
received any notification from any of our Member Organizations to the effect
that the statements made by such Member Organizations with respect to any
portion of the part submitted herewith for exchange (or, if relevant, collection
of any interest) are no longer true and cannot be relied upon as of the date
hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: , 19
---------------- ---
[To be dated no earlier than the Exchange
Date or the relevant Interest Payment Date
occurring prior to the Exchange Date, as
applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedel S.A.]
By
------------------------------------
<PAGE>
DRAFT
06/12/94
Exhibit 4.2
[Form of Fixed Rate Redeemable or
Non-Redeemable Senior Security]
DEERE & COMPANY
____ % Notes due____
No. $
---------- -----------
DEERE & COMPANY, a Delaware corporation (herein referred to as the
"Company", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to or registered assigns the principal sum of
Dollars on , and to pay interest, if any, thereon from
or from the most recent Interest Payment Date to which interest, if any,
has been paid or duly provided for, semi-annually on and in each
year, commencing , at the rate of % per annum, until the
principal hereof is paid or duly provided for. Any interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture, be paid to the Person in whose name this note (or one
or more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the or
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the registered Holder on
such Regular Record Date and may either be paid to the Person in whose name this
note (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee referred to on the reverse hereof, notice whereof shall
be given to Holders of Securities of this series not less than 10 days prior to
such Special Record Date, or may be paid at any time in any other lawful manner
not inconsistent with the requirements of any securities exchange on which the
Securities of this series may be listed, and upon such notice as may be required
by such exchange, all as more fully provided in the Indenture.
<PAGE>
2
Payment of the principal of (and premium, if any) and interest, if
any, on this note will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, in such
coin or currency of the United States of America as at the time of payment is
legal tender for payment of public and private debts; PROVIDED, HOWEVER,
that at the option of the Company payment of interest, if any, may be made by
check mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by transfer to an account maintained by the
payee inside the United States.
Reference is hereby made to the further provisions of this note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place. This note is one of a
series of Securities designated % notes due .
<PAGE>
3
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this note shall not be entitled to any benefit
under the Indenture, or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its facsimile corporate seal.
Dated:
-------------
DEERE & COMPANY
By
---------------------------------
Attest:
- -------------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
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
<PAGE>
[Reverse of Certificate]
This note is one of a duly authorized issue of securities of the
Company (herein called the "Securities"), issued and to be issued in one or more
series under an Indenture dated as of , 199_ (herein called the "Indenture")
between the Company and The Chase Manhattan Bank (National Association), Trustee
(herein called the "Trustee", which term includes any successor trustee under
the Indenture with respect to the series of which this note is a part), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities, and of
the terms upon which the Securities are, and are to be, authenticated and
delivered.
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
[IF APPLICABLE, INSERT-- The Securities of this series may not be
redeemed prior to the date of Maturity.]
[IF APPLICABLE INSERT-- The Securities of this series are subject
to redemption [(1)] [IF APPLICABLE, INSERT -- on in any year
commencing with the year and ending with the year through
operation of the sinking fund for this series at a Redemption Price equal to
100% of the principal amount, [and] (2)] [IF APPLICABLE, INSERT -- at any time
[on or after ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed on or before , %, and if
redeemed] during the 12-month period beginning of the years
indicated,
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest, if
any, to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest on this note whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of this note, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture.]
[IF APPLICABLE, INSERT -- The Securities of this series are subject
to redemption (1) on in any year commencing with the year
and ending with the year through operation of the sinking fund for this
series at the Redemption Prices for redemption through
<PAGE>
2
operation of the sinking fund (expressed as percentages of the principal amount)
set forth in the table below, and (2) at any time [on or after ], as a
whole or in part, at the election of the Company, at the Redemption Prices for
redemption otherwise than through operation of the sinking fund (expressed as
percentages of the principal amount) set forth in the table below: If redeemed
during the 12-month period beginning of the years indicated,
REDEMPTION PRICE
FOR REDEMPTION REDEMPTION PRICE FOR
THROUGH OPERATION REDEMPTION OTHERWISE
OF THE THAN THROUGH OPERATION
YEAR SINKING FUND OF THE SINKING FUND
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest on this note whose
Stated Maturity is on or prior to such Redemption Date will be payable to the
Holder of this note, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.]
[Notwithstanding the foregoing, the Company may not, prior to ,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding paragraph as a part of, or in anticipation of, any refunding operation
by the application, directly or indirectly, of moneys borrowed having an
interest cost to the Company (calculated in accordance with generally accepted
financial practice) of less than % per annum.]
[The sinking fund for this series provides for the redemption on
in each year, beginning with the year and ending with the year , of
[not less than] $ [("mandatory sinking fund") and not more than $
] aggregate principal amount of Securities of this series. [Securities
of this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made in the [DESCRIBE ORDER]
order in which they become due.]]
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture.
<PAGE>
3
In the event of redemption of this note in part only, a new Security
or Securities of this series for the unredeemed portion hereof shall be issued
in the name of the Holder hereof upon the cancellation hereof.]
[IF APPLICABLE, INSERT-- Subject to and upon compliance with the
provisions of the Indenture and any indenture supplemental thereto, Board
Resolution or Officers' Certificate related hereto, the Holder hereof has the
right, at his option, to [convert] [exchange] this note into[NAME THE
SECURITY] of the Company at any time before the close of business on .
[If this note is called for redemption, the Holder may [convert] [exchange]
it at any time before the close of business on the Redemption Date by delivering
the note for [conversion] [exchange] in accordance with the redemption notice.]
The initial [conversion] [exchange] price is $ per [share], subject to
adjustment in certain events as more fully described in the applicable
supplemental indenture, Board Resolution or Officers' Certificate relating
hereto.
To [convert][exchange] this note, a Holder must (1) complete and
sign the [Conversion] [Exchange] Notice as provided herein on the back of the
note, (2) surrender the note to the Company at the office or agency of the
Company maintained for that purpose in the Borough of Manhattan, The City of New
York, (3) furnish appropriate endorsements and transfer documents if required by
the Company and/or the Trustee, and (4) pay any transfer or similar tax if
required.
[As more fully described in the applicable supplemental indenture,
Board Resolution or Officers' Certificate relating hereto, if the Company is a
party to consolidation or merger or a transfer of all or substantially all of
its assets, the right to [convert]
[exchange] this note into [Common Stock] may be changed into a right to
[convert] [exchange] it into securities, cash or other assets of the Company or
another person.]]
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected thereby. The Indenture also contains
provisions permitting the Holders of not less than a majority in principal
amount of the Outstanding Securities of any series, on behalf of the Holders of
all the outstanding Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture. Provisions in the Indenture
also permit the Holders of not less than a majority in principal amount of the
Outstanding Securities of individual series to waive on behalf of all of the
Holders of Securities of such individual series certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this note shall be conclusive and binding upon such Holder and upon all future
Holders of this note and of any Security of this series issued upon the
registration of transfer
<PAGE>
4
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this note.
No reference herein to the Indenture and no provision of this note
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of (and premium, if any) and
interest, if any, on this note at the times, places and rate, and in the coin or
currency, herein prescribed.
[The Indenture contains provisions that apply to the Securities of
this series for defeasance at any time of (a) the entire indebtedness of the
Company on the Securities of the series of which this note forms a part and (b)
certain restrictive covenants and the related defaults and Events of Default
with respect to the Securities of the series of which this note forms a part,
upon compliance by the Company with certain conditions set forth therein.]
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this note is registrable in the Security
Register of the Company, upon surrender of this note for registration of
transfer at the office or agency of the Company in any place where the principal
of (and premium, if any) and interest, if any, on this note are payable, duly
]endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Securities of this series, of any authorized denominations and of a
like aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $ and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations
therein set forth, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of any different
authorized denominations, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this note for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name this note is registered as the owner hereof for all
purposes, whether or not this note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this note which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
<PAGE>
IF APPLICABLE, INSERT THE FOLLOWING:
[CONVERSION] [EXCHANGE] NOTICE
TO DEERE & COMPANY
The undersigned Holder of this note hereby irrevocably exercises the
option to [convert] [exchange] this note, or portion hereof below designated,
into [shares] of [NAME THE SECURITY] of Deere & Company in accordance with the
terms of the Indenture referred to in this note, and in accordance with the
applicable supplemental indenture, Board Resolution or Officers' Certificate, as
the case may be, and directs that the [shares] issuable and deliverable upon the
[conversion] [exchange], together with any check in payment for fractional
[shares] and any notes representing any unconverted principal amount hereof, be
issued and delivered to the Holder hereof unless a name of a person has been
indicated below. If [shares] are to be issued in the name of a person other
than the undersigned, the undersigned Holder will pay all transfer taxes payable
with respect thereto. Any amount required to be paid by the undersigned on
account of interest accompanies this note.
Date:
------------------------------ -----------------------------------
Signature
Fill in for registration Principal Amount to be
of shares: converted
- ----------------------------------- (in an integral multiple of
- ----------------------------------- $1,000, if less than all):
- -----------------------------------
- ----------------------------------- $
------------------------------------
- ----------------------------------- ------------------------------------
Please print name Social Security or other
Taxpayer Identification
- ----------------------------------- Number
Please print address
(including zip code)
<PAGE>
Exhibit 4.3
14816/NYL4
[Regular]
- --------------------------------------------------------------------------------
DEERE & COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE
-------------------------------------------------------------
Indenture
Dated as of ____________, 199___
-------------------------------------------------------------
Providing for the Issuance
of
Subordinated Debt Securities
- --------------------------------------------------------------------------------
<PAGE>
DEERE & COMPANY
Reconciliation and tie between Trust Indenture Act
of 1939 and Indenture, dated as of _______, 199_
TRUST INDENTURE ACT INDENTURE SECTION
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
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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". . . . . . . . . . . . . . . . . . . 9
"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 . . . . . . . . . . . . . . . 15
SECTION 107. Effect of Headings and Table of Contents. . . . . . . . 16
SECTION 108. Successors and Assigns. . . . . . . . . . . . . . . . . 16
SECTION 109. Separability Clause . . . . . . . . . . . . . . . . . . 16
SECTION 110. Benefits of Indenture . . . . . . . . . . . . . . . . . 16
SECTION 111. Governing Law . . . . . . . . . . . . . . . . . . . . . 17
SECTION 112. Legal Holidays. . . . . . . . . . . . . . . . . . . . . 17
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ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities . . . . . . . . . . . . . . . . . . 17
SECTION 202. Form of Trustee's Certificate of Authentication . . . . 18
SECTION 203. Securities Issuable in Global Form. . . . . . . . . . . 18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series. . . . . . . . . . 19
SECTION 302. Denominations . . . . . . . . . . . . . . . . . . . . . 23
SECTION 303. Execution, Authentication, Delivery and Dating. . . . . 23
SECTION 304. Temporary Securities. . . . . . . . . . . . . . . . . . 26
SECTION 305. Registration, Registration of Transfer and Exchange . . 28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities. . . . 31
SECTION 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset. . . . . . . . . . . . . . . . 33
SECTION 308. Optional Extension of Maturity. . . . . . . . . . . . . 36
SECTION 309. Persons Deemed Owners . . . . . . . . . . . . . . . . . 37
SECTION 310. Cancellation. . . . . . . . . . . . . . . . . . . . . . 38
SECTION 311. Computation of Interest . . . . . . . . . . . . . . . . 38
SECTION 312. Currency and Manner of Payments in Respect of Securities 38
SECTION 313. Appointment and Resignation of Successor Exchange Rate
Agent. . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 314. CUSIP Numbers . . . . . . . . . . . . . . . . . . . . . 43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture . . . . . . . . 43
SECTION 402. Application of Trust Funds. . . . . . . . . . . . . . . 44
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default . . . . . . . . . . . . . . . . . . . 45
SECTION 502. Acceleration of Maturity; Rescission and Annulment. . . 46
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee . . . . . . . . . . . . . . . . 47
SECTION 504. Trustee May File Proofs of Claim. . . . . . . . . . . . 48
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SECTION 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons. . . . . . . . . . . . . . . . . 49
SECTION 506. Application of Money Collected. . . . . . . . . . . . . 49
SECTION 507. Limitation on Suits . . . . . . . . . . . . . . . . . . 49
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. . . . . . . . . . . . 50
SECTION 509. Restoration of Rights and Remedies. . . . . . . . . . . 50
SECTION 510. Rights and Remedies Cumulative. . . . . . . . . . . . . 50
SECTION 511. Delay or Omission Not Waiver. . . . . . . . . . . . . . 51
SECTION 512. Control by Holders of Securities. . . . . . . . . . . . 51
SECTION 513. Waiver of Past Defaults . . . . . . . . . . . . . . . . 51
SECTION 514. Waiver of Stay or Extension Laws. . . . . . . . . . . . 52
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults. . . . . . . . . . . . . . . . . . . 52
SECTION 602. Certain Rights of Trustee . . . . . . . . . . . . . . . 52
SECTION 603. Not Responsible for Recitals or Issuance of
Securities . . . . . . . . . . . . . . . . . . . . . . 54
SECTION 604. May Hold Securities . . . . . . . . . . . . . . . . . . 54
SECTION 605. Money Held in Trust . . . . . . . . . . . . . . . . . . 54
SECTION 606. Compensation and Reimbursement. . . . . . . . . . . . . 54
SECTION 607. Corporate Trustee Required; Eligibility;
Conflicting Interests. . . . . . . . . . . . . . . . . 55
SECTION 608. Resignation and Removal; Appointment of Successor . . . 55
SECTION 609. Acceptance of Appointment by Successor. . . . . . . . . 57
SECTION 610. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . 58
SECTION 611. Appointment of Authenticating Agent . . . . . . . . . . 58
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders. . . . . . 60
SECTION 702. Reports by Trustee. . . . . . . . . . . . . . . . . . . 60
SECTION 703. Reports by Company. . . . . . . . . . . . . . . . . . . 61
SECTION 704. Calculation of Original Issue Discount. . . . . . . . . 61
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, etc., Only on Certain
Terms. . . . . . . . . . . . . . . . . . . . . . . . . 62
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SECTION 802. Successor Person Substituted. . . . . . . . . . . . . . 62
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. . . 63
SECTION 902. Supplemental Indentures with Consent of Holders . . . . 64
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . 66
SECTION 904. Effect of Supplemental Indentures . . . . . . . . . . . 66
SECTION 905. Conformity with Trust Indenture Act . . . . . . . . . . 66
SECTION 906. Reference in Securities to Supplemental Indentures. . . 66
SECTION 907. Effect on Senior Indebtedness . . . . . . . . . . . . . 66
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest . . . . . . 67
SECTION 1002. Maintenance of Office or Agency. . . . . . . . . . . . 67
SECTION 1003. Money for Securities Payments to Be Held in Trust. . . 69
SECTION 1004. Additional Amounts . . . . . . . . . . . . . . . . . . 70
SECTION 1005. Statement as to Compliance . . . . . . . . . . . . . . 71
SECTION 1006. Waiver of Certain Covenants. . . . . . . . . . . . . . 71
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article . . . . . . . . . . . . . . . 71
SECTION 1102. Election to Redeem; Notice to Trustee. . . . . . . . . 71
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. . . 72
SECTION 1104. Notice of Redemption . . . . . . . . . . . . . . . . . 72
SECTION 1105. Deposit of Redemption Price. . . . . . . . . . . . . . 74
SECTION 1106. Securities Payable on Redemption Date. . . . . . . . . 74
SECTION 1107. Securities Redeemed in Part. . . . . . . . . . . . . . 75
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article . . . . . . . . . . . . . . . 75
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities. . . . . . . . . . . . . . . . . . . . . . 76
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SECTION 1203. Redemption of Securities for Sinking Fund. . . . . . . 76
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article . . . . . . . . . . . . . . . 76
SECTION 1302. Repayment of Securities. . . . . . . . . . . . . . . . 77
SECTION 1303. Exercise of Option . . . . . . . . . . . . . . . . . . 77
SECTION 1304. When Securities Presented for Repayment Become
Due and Payable . . . . . . . . . . . . . . . . . . . 77
SECTION 1305. Securities Repaid in Part. . . . . . . . . . . . . . . 78
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance . . . . . . . . . . 79
SECTION 1402. Defeasance and Discharge . . . . . . . . . . . . . . . 79
SECTION 1403. Covenant Defeasance. . . . . . . . . . . . . . . . . . 80
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. . . . 80
SECTION 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions . . . . 82
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. . . . . . . 83
SECTION 1502. Call, Notice and Place of Meetings . . . . . . . . . . 83
SECTION 1503. Persons Entitled to Vote at Meetings . . . . . . . . . 84
SECTION 1504. Quorum; Action . . . . . . . . . . . . . . . . . . . . 84
SECTION 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings . . . . . . . . . . . . . . . 85
SECTION 1506. Counting Votes and Recording Action of Meetings. . . . 86
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Agreement to Subordinate . . . . . . . . . . . . . . . 86
SECTION 1602. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities . . . . . . 87
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SECTION 1603. No Payment on Securities in Event of Default on
Senior Indebtedness . . . . . . . . . . . . . . . . . 88
SECTION 1604. Payments on Securities Permitted . . . . . . . . . . . 89
SECTION 1605. Authorization of Holders to Trustee to Effect
Subordination . . . . . . . . . . . . . . . . . . . . 89
SECTION 1606. Notices to Trustee . . . . . . . . . . . . . . . . . . 89
SECTION 1607. Trustee as Holder of Senior Indebtedness . . . . . . . 90
SECTION 1608. Modifications of Terms of Senior Indebtedness. . . . . 90
SECTION 1609. Reliance on Judicial Order or Certificate of
Liquidating Agent . . . . . . . . . . . . . . . . . . 90
<PAGE>
INDENTURE, dated as of ________________, 199___ between DEERE &
COMPANY, a Delaware corporation (hereinafter called the "Company"), having its
principal office at John Deere Road, Moline, Illinois 61265 and The Bank of New
York, a banking association organized and existing under the laws of the State
of New York, as Trustee (hereinafter called the "Trustee"), having its Corporate
Trust Office at 101 Barclay Street, New York, New York 10286.
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
<PAGE>
2
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.
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3
"BOARD OF DIRECTORS" means the board of directors of the Company, the
executive committee or any committee of that board duly authorized to act
hereunder.
"BOARD RESOLUTION" means a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or particular
location are authorized or obligated by law or executive order to close.
"CEDEL" means Centrale de Livraison de Valeurs Mobilieres, S.A., or
its successor.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934, or,
if at any time after execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties on such date.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a written
request or order signed in the name of the Company by the Chairman, the
President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Comptroller or an Assistant Comptroller, the Secretary or an Assistant
Secretary, of the Company, and delivered to the Trustee.
"CONVERSION DATE" has the meaning specified in Section 312(d).
"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU both
within the European Monetary System and for the settlement of transactions by
public institutions of or within the European Communities or (iii) any currency
unit (or composite currency) other than the ECU for the purposes for which it
was established.
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4
"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 101 Barclay Street,
21st floor, New York, New York 10286, Attention: Corporate Trust Trustee
Administration.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer Security.
"CURRENCY" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the ECU, issued
by the government of one or more countries or by any reorganized confederation
or association of such governments.
"DEFAULT" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised from
time to time by the Council of the European Communities.
"ELECTION DATE" has the meaning specified in Section 312(h).
"EUROCLEAR" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"EUROPEAN COMMUNITIES" means the European Union, the European Coal and
Steel Community and the European Atomic Energy Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"EVENT OF DEFAULT" has the meaning specified in Article Five.
"EXCHANGE RATE AGENT", with respect to Securities of or within any
series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
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5
"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
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6
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
<PAGE>
7
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
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8
(iv) Securities which have been paid pursuant to Section 306 or
in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security or Indexed Security, the Dollar equivalent as
of such date of original issuance of the amount determined as provided in clause
(i) above or (iii) below, respectively) of such Security, (iii) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in making such calculation or in relying
upon any such request, demand, authorization, direction, notice, consent or
waiver, only Securities which the Trustee actually knows to be so owned shall be
so disregarded. Securities so owned which have been pledged in good faith may
be regarded as Outstanding if the pledgee establishes to the satisfaction of the
Trustee the pledgee's right so to act with respect to such Securities and that
the pledgee is not the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest, if any, on any Securities or
coupons on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
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9
"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, 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.
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10
"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.
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11
"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
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12
(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
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13
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.
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14
(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
<PAGE>
15
with the Trustee by first-class mail, postage prepaid or such other
mutually acceptable means of transmission at its Corporate Trust
Office, Attention: Corporate Trust Trustee 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.
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16
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.
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17
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
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18
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:
Dated:
This is one of the Securities of the series referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By__________________________________
Authorized Signatory
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
<PAGE>
19
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);
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20
(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, 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;
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21
(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;
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22
(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
<PAGE>
23
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
<PAGE>
24
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;
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25
(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 by manual signature of an authorized
<PAGE>
26
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
<PAGE>
27
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
<PAGE>
28
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
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29
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
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30
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
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31
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
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32
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.
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33
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
<PAGE>
34
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
<PAGE>
35
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 Date of such Security (each such period a "Subsequent Interest
Period"), including the date or dates on which or the period or periods during
which and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish an interest rate (or
a spread or spread multiplier used to calculate such interest rate, if
applicable) that is higher than the interest rate (or the spread or spread
multiplier, if applicable) provided for in the Reset Notice, for the Subsequent
Interest Period by causing the Trustee to transmit, in the manner provided for
in Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment (or
have validly revoked any such tender) pursuant to the next succeeding paragraph,
will bear such higher interest rate (or such higher spread or spread multiplier,
if applicable).
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36
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in Article
Thirteen for repayment at the option of Holders except that the period for
delivery or notification to the Trustee shall be at least 25 but not more than
35 days prior to such Optional Reset Date and except that, if the Holder has
tendered any Security for repayment pursuant to the Reset Notice, the Holder
may, by written notice to the Trustee, revoke such tender or repayment until the
close of business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. OPTIONAL EXTENSION OF MATURITY. The provisions of this
Section 308 may be made applicable to any series of Securities pursuant to
Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity of any Security of
such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period") up
to but not beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company may exercise such option with respect to any Security by
notifying the Trustee of such exercise at least 45 but not more than 60 days
prior to the Stated Maturity of such Security in effect prior to the exercise of
such option (the "Original Stated Maturity"). If the Company exercises such
option, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice (the "Extension Notice") indicating (i) the election of
the Company to extend the Stated Maturity, (ii) the new Stated Maturity, (iii)
the interest rate, if any, applicable to the Extension Period and (iv) the
provisions, if any, for redemption during such Extension Period. Upon the
Trustee's transmittal of the Extension Notice, the Stated Maturity of such
Security shall be extended automatically and, except as modified by the
Extension Notice and as described in the next paragraph, such Security will have
the same terms as prior to the transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be irrevocable.
All Securities with respect to which the Stated Maturity is extended will bear
such higher interest rate.
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37
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.
<PAGE>
38
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 returned to the Company.
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
<PAGE>
39
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
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40
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
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41
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
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42
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).
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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
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44
(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.
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45
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
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46
(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,
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47
(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
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48
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 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 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
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49
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;
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(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
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51
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.
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52
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
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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
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54
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, damage,
claim or
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55
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 in connection
with an Event of Default specified in Section 501(5) or Section 501(6), the
expenses (including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture.
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, 1985 between Deere &
Company and The Bank of New York, trustee.
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.
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56
(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
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57
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
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58
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
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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.
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60
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:
Dated:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK, as Trustee
By_____________________________
as Authenticating Agent
By_____________________________
Authorized Signatory
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
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61
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 such
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.
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62
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 and no 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.
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63
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
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64
(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 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; or
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65
reduce the principal amount thereof or the rate of interest thereon,
or any premium payable upon the redemption thereof, or change any
obligation of the Company to pay Additional Amounts pursuant to
Section 1004 (except as contemplated by Section 801(1) and permitted
by Section 901(1)), or reduce the portion of the principal of an
Original Issue Discount Security or Indexed Security that would be due
and payable upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the amount thereof provable in bankruptcy
pursuant to Section 504, or adversely affect any right of repayment at
the option of the Holder of any Security, or change any Place of
Payment where, or the Currency in which, any Security or any premium
or interest thereon is payable, or impair the right to institute suit
for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be), or adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 301
herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (of compliance
with certain provisions of this Indenture or certain defaults
hereunder and their consequences) provided for in this Indenture, or
reduce the requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 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.
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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.
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ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest, if any, on the Securities of that series in accordance
with the terms of such series of Securities, any coupons appertaining thereto
and this Indenture. Any interest due on Bearer Securities on or before
Maturity, other than Additional Amounts, if any, payable as provided in Section
1004 in respect of principal of (or premium, if any, on) such a Security, shall
be payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature. Unless
otherwise specified with respect to Securities of any series pursuant to Section
301, at the option of the Company, all payments of principal may be paid by
check to the registered Holder of the Registered Security or other person
entitled thereto against surrender of such Security. Unless otherwise specified
as contemplated by Section 301 with respect to any series of Securities, any
interest due on Bearer Securities on or before Maturity shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of a
series are issuable only as Registered Securities, the Company shall maintain in
each Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. If Securities of a series are issuable as
Bearer Securities, the Company will maintain (A) in the Borough of Manhattan,
The City of New York, an office or agency where any Registered Securities of
that series may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company in respect of the Securities of that series and
this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in the
circumstances described in the following paragraph (and not otherwise), (B)
subject to any laws or regulations applicable thereto, in a Place of Payment for
that series which is located outside 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
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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
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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
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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
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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
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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,
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(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.
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Notice of redemption of Securities to be redeemed shall be given by
the Company or, at the Company's request, by the Trustee in the name and at the
expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not do
in the case of a sinking fund payment under Article Twelve, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
on the Redemption Date the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest on, all the Securities
or portions thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall default
in the payment of the Redemption Price and accrued interest, if any) such
Securities shall if the same were interest-bearing cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
redeemed, except to the extent provided below, shall be void. Upon surrender of
any such Security for redemption in accordance with said notice, together with
all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together
with accrued interest, if any, to the Redemption Date; PROVIDED, HOWEVER, that
installments of interest on Bearer Securities whose Stated Maturity is on or
prior to the Redemption Date shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of coupons for such interest; and PROVIDED FURTHER
that installments of interest on Registered Securities whose Stated Maturity is
on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder
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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.
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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.
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SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at
the Repayment Price thereof, together with interest, if any, thereon accrued to
the Repayment Date specified in or pursuant to the terms of such Securities. The
Company covenants that on or before the Repayment Date it will deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 1003) an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the Repayment Price of, and (except if the Repayment Date
shall be an Interest Payment Date) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series subject
to repayment at the option of the Holders thereof will contain an "Option to
Elect Repayment" form on the reverse of such Securities. To be repaid at the
option of the Holder, any Security so providing for such repayment, with the
"Option to Elect Repayment" form on the reverse of such Security duly completed
by the Holder (or by the Holder's attorney duly authorized in writing), must be
received by the Company at the Place of Payment therefor specified in the terms
of such Security (or at such other place or places of which the Company shall
from time to time notify the Holders of such Securities) not earlier than 45
days nor later than 30 days prior to the Repayment Date. If less than the
entire Repayment Price of such Security is to be repaid in accordance with the
terms of such Security, the portion of the Repayment Price of such Security to
be repaid, in increments of the minimum denomination for Securities of such
series, and the denomination or denominations of the Security or Securities to
be issued to the Holder for the portion of such Security surrendered that is not
to be repaid must be specified. Any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be less than the
minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND
PAYABLE. If Securities of any series providing for repayment at the option of
the Holders thereof shall have been surrendered as provided in this Article and
as provided by or pursuant to the terms of such Securities, such Securities or
the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in
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accordance with such provisions, together with all coupons, if any, appertaining
thereto maturing after the Repayment Date, the Repayment Price of such Security
so to be repaid shall be paid by the Company, together with accrued interest, if
any, to the Repayment Date; PROVIDED, HOWEVER, that coupons whose Stated
Maturity is on or prior to the Repayment Date shall be payable only at an office
or agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301, only upon
presentation and surrender of such coupons; and PROVIDED FURTHER that, in the
case of Registered Securities, installments of interest, if any, whose Stated
Maturity is on or prior to the Repayment Date shall be payable (but without
interest thereon, unless the Company shall default in the payment thereof) to
the Holders of such Securities, or one or more Predecessor Securities,
registered as 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 Redemption 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.
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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.
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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
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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
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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.
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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
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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.
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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.
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(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.
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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
<PAGE>
88
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
<PAGE>
89
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. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Failure to give such notice shall not affect the subordination of
the Securities to Senior Indebtedness. 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
<PAGE>
90
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 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.
<PAGE>
91
* * * * *
This Indenture may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, and their respective corporate seals to be hereunto affixed
and attested, all as of the day and year first above written.
DEERE & COMPANY
By____________________________
[SEAL] Treasurer
Attest:
_______________________
[Assistant Secretary]
THE BANK OF NEW YORK, TRUSTEE
By____________________________
[SEAL] Treasurer
Attest:
_______________________
[Trust Officer]
<PAGE>
STATE OF ILLINOIS )
) ss:
COUNTY OF ROCK ISLAND )
On the ___________________________ day of ____________________________
199___, before me personally came _____________________________________________,
to me known, who, being by me duly sworn, did depose and say that he resides at
_______________________________________________; that he is ____________________
_________ of Deere & Company, one of the corporations described in and which
executed the foregoing instrument; that he knows the seal of said corporation;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that he
signed his name thereto by like authority.
[Notarial Seal]
___________________________________________
Notary Public
COMMISSION EXPIRES
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the __________________ day of _____________________, 199___, before
me personally came ___________________________________________, to me known,
who, being by me duly sworn, did depose and say that he resides at _____________
__________________ _____________________________; that he is a [________________
______________________________] of The Bank of New York, 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]
___________________________________________
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 Deere & Company or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
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.
<PAGE>
A-2
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 S.A.
IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY OR TO OBTAIN
INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] _________________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate or trust the income of which is subject to
United States Federal income taxation regardless of its source ("United States
person(s)"), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are herein
referred to as "financial institutions") purchasing for their own account or for
resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof
(and in either case (a) or (b), each such financial institution has agreed, on
its own behalf or through its agent, that we may advise Deere & Company or its
agent that such financial institution will comply with the requirements of
Section 165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial institutions
described in clause (iii) above (whether or not also described in clause (i) or
(ii)) have certified that they have not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As used herein, "United States" means the United States of America
(including the States and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
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
<PAGE>
A-2-2
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: __________________________, 19___
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company
of New York, Brussels Office,] as
Operator of the Euroclear System
[Cedel S.A.]
By_________________________________________
<PAGE>
DRAFT
06/12/94
Exhibit 4.4
[Form of Fixed Rate Redeemable or
Non-Redeemable Subordinated Security]
DEERE & COMPANY
____ % Subordinated Notes due____
No. $
-------- -------------
DEERE & COMPANY, a Delaware corporation (herein referred to as the
"Company", which term includes any successor corporation under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
or registered assigns the principal sum of Dollars on
, and to pay interest, if any, thereon from or from the most
recent Interest Payment Date to which interest, if any, has been paid or duly
provided for, semi-annually on and in each year,
commencing , at the rate of % per annum, until the principal
hereof is paid or duly provided for. Any interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
such Indenture, be paid to the Person in whose name this note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the or (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such interest not so punctually paid or duly provided for shall
forthwith cease to be payable to the registered Holder on such Regular Record
Date and may either be paid to the Person in whose name this note (or one or
more Predecessor Securities) is registered at the close of business on a Special
Record Date for the payment of such Defaulted Interest to be fixed by the
Trustee, notice whereof shall be given to Holders of Securities of this series
not less than 10 days prior to such Special Record Date, or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities of this series may be listed, and
upon such notice as may be required by such exchange, all as more fully provided
in such Indenture.
Payment of the principal of (and premium, if any) and interest, if
any, on this note will be made at the office or agency of the Company maintained
for that purpose in the Borough of Manhattan, The City of New York, in such coin
or currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts; PROVIDED, HOWEVER, that at
the option of the Company payment of interest, if any, may be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or by transfer to an account maintained by the
payee inside the United States.
<PAGE>
2
Reference is hereby made to the further provisions of this note set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place. This note is one of a
series designated % Subordinated notes due .
<PAGE>
3
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by manual signature, this note
shall not be entitled to any benefit under the Indenture, or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its facsimile corporate seal.
Dated:
--------------------------
DEERE & COMPANY
By
---------------------------------
Attest:
- --------------------------------
Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series referred to in the within-mentioned
Indenture.
THE BANK OF NEW YORK,
as Trustee
By
---------------------------------
Authorized Signatory
<PAGE>
[Reverse of Certificate]
This note is one of a duly authorized issue of subordinated
securities of the Company (herein called the "Securities"), issued and to be
issued in one or more series under an Indenture dated as of , 199_
(herein called the "Indenture") between the Company and The Bank of New York,
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture with respect to the series of which this note is a part), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee, the holders of Senior
indebtedness and the Holders of the Securities, and of the terms upon which the
Securities are, and are to be, authenticated and delivered.
If an Event of Default, as defined in the Indenture, shall occur and
be continuing, the principal of the Securities of this series may be declared
due and payable in the manner and with the effect provided in the Indenture.
[IF APPLICABLE, INSERT-- The Securities of this series may not be
redeemed prior to Maturity.]
[IF APPLICABLE INSERT-- The Securities of this series are subject
to redemption [(1)] [IF APPLICABLE, INSERT -- on in any year
commencing with the year and ending with the year through
operation of the sinking fund for this series at a Redemption Prices equal to
100% of the principal amount, [and] (2)] [IF APPLICABLE, INSERT -- at any time
[on or after ], as a whole or in part, at the election of the
Company, at the following Redemption Prices (expressed as percentages of the
principal amount): If redeemed on or before , %, and if
redeemed] during the 12-month period beginning of the years
indicated,
YEAR REDEMPTION PRICE YEAR REDEMPTION PRICE
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption [IF APPLICABLE, INSERT -- (whether
through operation of the sinking fund or otherwise)] with accrued interest, if
any, to the Redemption Date; PROVIDED, HOWEVER, that installments of
interest on this note whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holder of this note, or one or more Predecessor
Securities, of record at the close of business on the relevant Record Dates
referred to on the face hereof, all as provided in the Indenture; PROVIDED
FURTHER, HOWEVER, that redemption pursuant to this paragraph may not be
effected, in whole or in part, directly or indirectly, by the use of funds
procured by, or in anticipation of, the incurrence by the Company of
<PAGE>
2
indebtedness for borrowed money which is payable at a date more than one year
from the date of the creation thereof or which is renewable or extendable at the
option of the Company to a date more than one year from the date of the creation
thereof, but such redemption shall not be deemed to be in anticipation of the
incurrence of indebtedness for borrowed money when the actual incurrence of such
indebtedness is at least 180 days after the Redemption Date.]
[IF APPLICABLE, INSERT -- The Securities of this series are
subject to redemption (1) on in any year commencing with the year
and ending with the year through operation of the sinking fund for this
series at the Redemption Prices for redemption through operation of the sinking
fund (expressed as percentages of the principal amount) set forth in the table
below, and (2) at any time [on or after ], as a whole or in
part, at the election of the Company, at the Redemption Prices for redemption
otherwise than through operation of the sinking fund (expressed as percentages
of the principal amount) set forth in the table below: If redeemed during the
12-month period beginning of the years indicated,
YEAR REDEMPTION PRICE
FOR REDEMPTION REDEMPTION PRICE FOR
THROUGH OPERATION REDEMPTION OTHERWISE
OF THE THAN THROUGH OPERATION
SINKING FUND OF THE SINKING FUND
- ------------------- ---------------------- ----------------------------
and thereafter at a Redemption Price equal to % of the principal amount,
together in the case of any such redemption (whether through operation of the
sinking fund or otherwise) with accrued interest to the Redemption Date;
PROVIDED, HOWEVER, that installments of interest on this note whose Stated
Maturity is on or prior to such Redemption Date will be payable to the Holder of
this note, or one or more Predecessor Securities, of record at the close of
business on the relevant Record Dates referred to on the face hereof, all as
provided in the Indenture; PROVIDED FURTHER, HOWEVER, that redemption
pursuant to this paragraph may not be effected, in whole or in part, directly or
indirectly, by the use of funds procured by, or in anticipation of, the
incurrence by the Company of indebtedness for borrowed money which is payable at
a date more than one year from the date of the creation thereof or which is
renewable or extendable at the option of the Company to a date more than one
year from the date of the creation thereof, but such redemption shall not be
deemed to be in anticipation of the incurrence of indebtedness for borrowed
money when the actual incurrence of such indebtedness is at least 180 days after
the Redemption Date.]
[Notwithstanding the foregoing, the Company may not, prior to,
redeem any Securities of this series as contemplated by [Clause (2) of] the
preceding
<PAGE>
3
paragraph as a part of, or in anticipation of, any refunding operation by the
application, directly or indirectly, of moneys borrowed having an interest cost
to the Company (calculated in accordance with generally accepted financial
practice) of less than % per annum.]
[The sinking fund for this series provides for the redemption
on in each year, beginning with the year and ending with the year
, of [not less than] $ [("mandatory sinking fund") and not more
than $ ] aggregate principal amount of Securities of this series. [Securities
of this series acquired or redeemed by the Company otherwise than through
[mandatory] sinking fund payments may be credited against subsequent [mandatory]
sinking fund payments otherwise required to be made in the [DESCRIBE ORDER]
order in which they become due.]]
Notice of redemption will be given by mail to Holders of Securities,
not less than 30 nor more than 60 days prior to the date fixed for redemption,
all as provided in the Indenture.
In the event of redemption of this note in part only, a new Security
or Securities of this series for the unredeemed portion hereof shall be issued
in the name of the Holder hereof upon the cancellation hereof.]
[IF APPLICABLE, INSERT-- Subject to and upon compliance with the
provisions of the Indenture and any indenture supplemental thereto, Board
Resolution or Officers' Certificate related hereto, the Holder hereof has the
right, at his option, to [convert] [exchange] this note into[NAME THE
SECURITY] of the Company at any time before the close of business on.
[If this note is called for redemption, the Holder may [convert] [exchange]
it at any time before the close of business on the Redemption Date by delivering
the note for [conversion] [exchange] in accordance with the redemption notice.]
The initial [conversion] [exchange] price is $ per [share], subject to
adjustment in certain events as more fully described in the applicable
supplemental indenture, Board Resolution or Officers' Certificate relating
hereto.
To [convert][exchange] this note, a Holder must (1) complete and sign the
[Conversion] [Exchange] Notice as provided herein on the back of the note, (2)
surrender the note to the Company at the office or agency of the Company
maintained for that purpose in the Borough of Manhattan, The City of New York,
(3) furnish appropriate endorsements and transfer documents if required by the
Company and/or the Trustee, and (4) pay any transfer or similar tax if required.
[As more fully described in the applicable supplemental indenture, Board
Resolution or Officers' Certificate relating hereto, if the Company is a party
to consolidation or merger or a transfer of all or substantially all of its
assets, the right to [convert][exchange] this note
<PAGE>
4
into [Common Stock] may be changed into a right to [convert][exchange] it into
securities, cash or other assets of the Company or another person.]]
The indebtedness evidenced by the Securities is, to the extent and in the
manner set forth in the Indenture, expressly subordinated in right of payment to
the prior payment in full of all Senior indebtedness, and this note is issued
subject to such provisions of the Indenture. Each Holder of this note, by
accepting the same, agrees to and shall be bound by such provisions of the
Indenture and authorizes and directs the Trustee on his behalf to take such
action as may be necessary or appropriate to effectuate such subordination as
provided in the Indenture and appoints the Trustee his attorney-in-fact for any
and all such purposes.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights of the Holders of the
Securities under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
all Outstanding Securities affected thereby. The Indenture also contains
provisions permitting the Holders of not less than a majority in principal
amount of the Outstanding Securities of any series, on behalf of the Holders of
all the Outstanding Securities of such series, to waive compliance by the
Company with certain provisions of the Indenture and certain past defaults under
the Indenture. Provisions in the Indenture also permit the Holders of not less
than a majority in principal amount of the Outstanding Securities of individual
series to waive on behalf of all of the Holders of Securities of such individual
series certain past defaults under the Indenture and their consequences. Any
such consent or waiver by the Holder of this note shall be conclusive and
binding upon such Holder and upon all future Holders of this note and of any
Security of this series issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this note.
No reference herein to the Indenture and no provision of this note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of (and premium, if any) and
interest, if any, on this note at the times, places and rate, and in the coin or
currency, herein prescribed.
[The Indenture contains provisions that apply to the Securities of this
series for defeasance at any time of (a) the entire indebtedness of the Company
on the Securities of the series of which this note forms a part and (b) certain
restrictive covenants and the related defaults and Events of Default with
respect to the Securities of the series of which this note forms a part, upon
compliance by the Company with certain conditions set forth therein.]
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this note is registrable in the Security Register of
the Company, upon surrender of this note for registration of transfer at the
office or agency of the Company in any place where the principal of (and
premium, if any) and interest, if any, on this note are payable,
<PAGE>
5
duly endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
Holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Securities of this series, of any authorized denominations and of a
like aggregate principal amount, will be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form without
coupons in denominations of $ and any integral multiple thereof.
As provided in the Indenture and subject to certain limitations therein set
forth, Securities of this series are exchangeable of a like aggregate principal
amount of Securities of this series of any different authorized denominations,
as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
Person in whose name this note is registered as the owner hereof for all
purposes, whether or not this note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
All terms used in this note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
<PAGE>
IF APPLICABLE, INSERT THE FOLLOWING:
[CONVERSION] [EXCHANGE] NOTICE
TO DEERE & COMPANY
The undersigned Holder of this note hereby irrevocably exercises the
option to [convert] [exchange] this note, or portion hereof below designated,
into [shares] of [NAME THE SECURITY] of Deere & Company in accordance with the
terms of the Indenture referred to in this note, and in accordance with the
applicable supplemental indenture, Board Resolution or Officers' Certificate, as
the case may be, and directs that the [shares] issuable and deliverable upon the
[conversion] [exchange], together with any check in payment for fractional
[shares] and any notes representing any unconverted principal amount hereof, be
issued and delivered to the Holder hereof unless a name of a person has been
indicated below. If [shares] are to be issued in the name of a person other
than the undersigned, the undersigned Holder will pay all transfer taxes payable
with respect thereto. Any amount required to be paid by the undersigned on
account of interest accompanies this note.
Date:
------------------------------ -----------------------------------
Signature
Fill in for registration Principal Amount to be
of shares: converted
- ---------------------------------- (in an integral multiple of
- ---------------------------------- $1,000, if less than all):
- ----------------------------------
- ---------------------------------- $
------------------------
- ---------------------------------- -----------------------------------
Please print name Social Security or other
- ---------------------------------- Taxpayer Identification
Please print address Number
(including zip code)
<PAGE>
Exhibit 4.5
- --------------------------------------------------------------------------------
DEBT WARRANT AGREEMENT*
Dated as of
-------------
between
DEERE & COMPANY
and
----------------------
Debt Warrant Agent
- --------------------------------------------------------------------------------
*OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS
HEREIN SHALL BE DETERMINED IN CONFORMITY WITH THE
APPLICABLE PROSPECTUS SUPPLEMENT OR SUPPLEMENTS
<PAGE>
TABLE OF CONTENTS*
PARTIES .................................................................... 1
RECITALS.................................................................... 1
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF DEBT WARRANTS................................... 1
SECTION 1.02. FORM AND EXECUTION OF DEBT WARRANT CERTIFICATES............. 2
SECTION 1.03. ISSUANCE AND DELIVERY OF DEBT WARRANT CERTIFICATES.......... 3
SECTION 1.04. TEMPORARY DEBT WARRANT CERTIFICATES......................... 4
SECTION 1.05. PAYMENT OF TAXES............................................ 4
SECTION 1.06. "HOLDER".................................................... 4
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
SECTION 2.01. DURATION OF DEBT WARRANTS................................... 5
SECTION 2.02. EXERCISE OF DEBT WARRANTS................................... 5
SECTION 2.03. TERMINATION DATE............................................ 6
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
SECTION 3.01. NO RIGHTS AS HOLDER OF UNDERLYING DEBT SECURITY CONFERRED
BY DEBT WARRANTS OR DEBT WARRANT CERTIFICATES............... 7
- ----------------------
* The Table of Contents is not part of the Debt Warrant Agreement.
<PAGE>
ii
SECTION 3.02. LOST, STOLEN, DESTROYED OR MUTILATED DEBT WARRANT
CERTIFICATES................................................ 7
SECTION 3.03. HOLDER OF DEBT WARRANTS MAY ENFORCE RIGHTS.................. 7
SECTION 3.04. MERGER, CONSOLIDATION, SALE, TRANSFER OR CONVEYANCE: RIGHTS
AND DUTIES OF SUCCESSOR CORPORATION......................... 8
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
SECTION 4.01. [DEBT WARRANT REGISTER; ]EXCHANGE AND TRANSFER OF DEBT
WARRANTS................................................... 8
SECTION 4.02. TREATMENT OF HOLDERS OF DEBT WARRANT CERTIFICATES........... 9
SECTION 4.03. CANCELLATION OF DEBT WARRANT CERTIFICATES................... 9
ARTICLE IV
CONCERNING THE DEBT WARRANT AGENT
SECTION 5.01. DEBT WARRANT AGENT.......................................... 10
SECTION 5.02. CONDITIONS OF DEBT WARRANT AGENT'S OBLIGATIONS.............. 10
SECTION 5.03. COMPLIANCE WITH APPLICABLE LAWS............................. 12
SECTION 5.04. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR........... 13
SECTION 5.05. OFFICE...................................................... 14
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. SUPPLEMENTS AND AMENDMENTS.................................. 15
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND DEBT WARRANT AGENT... 15
SECTION 6.03. ADDRESSES................................................... 15
<PAGE>
iii
SECTION 6.04. GOVERNING LAW............................................... 16
SECTION 6.05. GOVERNMENTAL APPROVALS...................................... 16
SECTION 6.06. PERSONS HAVING RIGHTS UNDER DEBT WARRANT AGREEMENT.......... 16
SECTION 6.07. DELIVERY OF PROSPECTUS...................................... 16
SECTION 6.08. HEADINGS.................................................... 16
SECTION 6.10. INSPECTION OF AGREEMENT..................................... 16
TESTIMONIUM ...............................................................17
SIGNATURES .................................................................17
<PAGE>
THIS DEBT WARRANT AGREEMENT, dated as of ____________, between
Deere & Company, a Delaware corporation (the "Company"), and ____, a _______
organized and existing under the laws of _____, warrant agent (the "Debt Warrant
Agent").
WHEREAS, the Company has entered into an Indenture dated as of
________,__ 19__ (the "Indenture") with [The Chase Manhattan Bank (National
Association)] [The Bank of New York], trustee (the "Trustee"), providing for the
issuance by the Company from time to time, in one or more series, of debt
securities evidencing its unsecured, [senior] [subordinated] indebtedness (such
debt securities, being referred to as the "Securities"); and
WHEREAS, the Company proposes to issue warrants (the "Debt
Warrants") representing the right to purchase Debt Securities of one or more
series (the "Underlying Debt Securities"); and
WHEREAS, the Company has duly authorized the execution and delivery
of this Debt Warrant Agreement to provide for the issuance of Debt Warrants to
be exercisable at such times and for such prices, and to have such other
provisions, as shall be fixed as hereinafter provided;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF DEBT WARRANTS AND EXECUTION AND DELIVERY
OF DEBT WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF DEBT WARRANTS. Debt Warrants may be
issued from time to time, together with or separately from any other securities
of the Company (the "Offered Securities"). Prior to the issuance of any Debt
Warrants, there shall be established by or pursuant to a resolution or
resolutions duly adopted by the Company's Board of Directors or by any committee
thereof duly authorized to act with respect thereto (a "Board Resolution"):
(1) The title and aggregate number of such Debt Warrants.
(2) The offering price of such Debt Warrants.
<PAGE>
2
(3) The title, aggregate principal amount, ranking and terms
[(including the subordination and conversion provisions)] of the
Underlying Debt Securities that may be purchased upon exercise of such
Debt Warrants.
(4) The principal amount of Underlying Debt Securities that may be
purchased upon exercise of each Debt Warrant and the price, or the manner
of determining the price (the "Debt Warrant Price"), at which such
principal amount may be purchased upon such exercise.
(5) The time or times at which, or period or periods during which,
such Debt Warrants may be exercised and the final date on which such Debt
Warrants may be exercised (the "Expiration Date"). Whether such
Expiration Date may be postponed by notice sent by the Company to all
Holders of Debt Warrants.
(6) The terms of any right to redeem or accelerate such Debt
Warrants.
(7) Whether the warrant certificates evidencing such Debt Warrants
(the "Debt Warrant Certificates") will be issued in registered or bearer
form, and, if registered, where they may be transferred or exchanged.
(8) Whether such Debt Warrants are to be issued with any (a) Debt
Securities and, if so, the title, aggregate principal amount and terms of
any such Debt Securities and the number of such Debt Warrants to be issued
with each $1,000 principal amount of such Debt Securities (or such other
principal amount of such Debt Securities as is provided for in the Board
Resolution) or (b) any other securities and, if so, the number and terms
thereof.
(9) The date, if any, on and after which such Debt Warrants and
such Debt Securities or other securities will be separately transferable
(the "Detachable Date").
(10) Any other terms of such Debt Warrants not inconsistent with
the provisions of this Agreement.
SECTION 1.02. FORM AND EXECUTION OF DEBT WARRANT CERTIFICATES.
(a) The Debt Warrants shall be evidenced by the Debt Warrant Certificates,
which shall be substantially in such form or forms as shall be established by or
pursuant to a Board Resolution. Each Debt Warrant Certificate, whenever issued,
shall be dated the date it is countersigned by the Debt Warrant Agent and may
have such letters, numbers or other identifying marks and such legends or
endorsements printed, lithographed or engraved thereon as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law, rule or regulation or with any rule or regulation of any securities
exchange on which the Debt or Debt Warrants may be listed, or to conform to
usage, as the
<PAGE>
3
officer of the Company executing the same may approve such officer's execution
thereof to be conclusive evidence of such approval). Each Debt Warrant
Certificate shall evidence one or more Debt Warrants.
(b) The Debt Warrant Certificates shall be signed in the name and
on behalf of the Company by its Chairman, President or any Vice President (any
reference to a Vice President of the Company herein shall be deemed to include
any Vice President of the Company whether or not designated by a number or a
word or words added before or after the title "Vice President") under its
corporate seal, and attested by its Secretary or an Assistant Secretary. Such
signatures may be manual or facsimile signatures of the present or any future
holder of any such office and may be imprinted or otherwise reproduced on the
Debt Warrant Certificates. The seal of the Company may be in the form of a
facsimile thereof and may be impressed, affixed, imprinted or otherwise
reproduced on the Debt Warrant Certificates.
(c) No Debt Warrant Certificate shall be valid for any purpose,
and no Debt Warrant evidenced thereby shall be deemed issued or exercisable,
until such Debt Warrant Certificate has been countersigned by the manual or
facsimile signature of the Debt Warrant Agent. Such signature by the Debt
Warrant Agent upon any Debt Warrant Certificate executed by the Company shall be
conclusive evidence that the Debt Warrant Certificate so countersigned has been
duly issued hereunder.
(d) In case any officer of the Company who shall have signed any
Debt Warrant Certificate either manually or by facsimile signature shall cease
to be such officer before the Debt Warrant Certificate so signed shall have been
countersigned and delivered by the Debt Warrant Agent, such Debt Warrant
Certificate nevertheless may be countersigned and delivered as though the person
who signed such Debt Warrant Certificate had not ceased to be such officer of
the Company; and any Debt Warrant Certificate may be signed on behalf of the
Company by such person as, at the actual date of the execution of such Debt
Warrant Certificate, shall be the proper officer of the Company, although at the
date of the execution of this Agreement such person was not such an officer.
SECTION 1.03. ISSUANCE AND DELIVERY OF DEBT WARRANT CERTIFICATES.
At any time and from time to time after the execution and delivery of this
Agreement, the Company may deliver Debt Warrant Certificates executed by the
Company to the Debt Warrant Agent for countersignature. Except as provided in
the following sentence, the Debt Warrant Agent shall thereupon countersign and
deliver such Debt Warrant Certificates to or upon the written request of the
Company. Subsequent to the original issuance of a Debt Warrant Certificate
evidencing Debt Warrants, the Debt Warrant Agent shall countersign a new Debt
Warrant Certificate evidencing such Debt Warrants only if such Debt Warrant
Certificate is issued in exchange or substitution for one or more previously
countersigned Debt Warrant Certificates evidencing such Debt Warrants or in
connection with their transfer, as hereinafter provided.
<PAGE>
4
SECTION 1.04. TEMPORARY DEBT WARRANT CERTIFICATES. Pending the
preparation of definitive Debt Warrant Certificates, the Company may execute,
and upon the order of the Company the Debt Warrant Agent shall countersign and
deliver, temporary Debt Warrant Certificates that are printed, lithographed,
typewritten, mimeographed or otherwise produced, substantially of the tenor of
the definitive Debt Warrant Certificates in lieu of which they are issued and
with such appropriate insertions, omissions, substitutions and other variations
as the officer executing such Debt Warrant Certificates may determine, as
evidenced by such officer's execution of such Debt Warrant Certificates.
If temporary Debt Warrant Certificates are issued, the Company will
cause definitive Debt Warrant Certificates to be prepared without unreasonable
delay. After the preparation of definitive Debt Warrant Certificates, the
temporary Debt Warrant Certificates shall be exchangeable for definitive Debt
Warrant Certificates upon surrender of the temporary Debt Warrant Certificates
at the corporate trust office of the Debt Warrant Agent [or _________],
without charge to the Holder, as defined in Section 1.06 hereof. Upon surrender
for cancellation of any one or more temporary Debt Warrant Certificates, the
Company shall execute and the Debt Warrant Agent shall countersign and deliver
in exchange therefor definitive Debt Warrant Certificates representing the same
aggregate number of Debt Warrants. Until so exchanged, the temporary Debt
Warrant Certificates shall in all respects be entitled to the same benefits
under this Agreement as definitive Debt Warrant Certificates.
SECTION 1.05. PAYMENT OF TAXES. The Company will pay all stamp
and other similar duties, if any, to which this Agreement or the original
issuance of the Debt Warrants or Debt Warrant Certificates may be subject under
the laws of the United States of America or any state or locality. The Company
is not responsible for the payment of any other taxes.
SECTION 1.06. "HOLDER". The term "Holder" or "Holders", as used
herein with reference to a Debt Warrant Certificate, shall mean [IF REGISTERED
DEBT WARRANTS -- the person or persons in whose name such Debt Warrant
Certificate shall then be registered as set forth in the Debt Warrant Register
to be maintained by the Debt Warrant Agent pursuant to Section 4.01 for that
purpose] [IF BEARER DEBT WARRANTS -- the bearer of such Debt Warrant
Certificate] or, in the case of Debt Warrants that are issued with Debt
Securities and cannot then be transferred separately therefrom, [IF REGISTERED
OFFERED SECURITIES AND DEBT WARRANTS THAT ARE NOT THEN DETACHABLE -- the person
or persons in whose name the related Offered Securities shall be registered as
set forth in the security register to be maintained by the security registrar
for such Offered Securities] [IF BEARER OFFERED SECURITIES AND DEBT WARRANTS
THAT ARE NOT THEN DETACHABLE -- of the related Offered Security], prior to the
Detachable Date. [IF REGISTERED OFFERED SECURITIES AND DEBT WARRANTS THAT ARE
NOT THEN DETACHABLE -- The Company will, or will cause the security registrar
of any such Offered Securities to, make available to the Debt Warrant Agent at
all times (including on and after the Detachable Date,
<PAGE>
5
in the case of Debt Warrants originally issued with Offered Securities and not
subsequently transferred separately therefrom) such information as to holders of
Offered Securities with Debt Warrants as may be necessary to keep the Debt
Warrant Register up to date.]
ARTICLE II
DURATION AND EXERCISE OF DEBT WARRANTS
SECTION 2.01. DURATION OF DEBT WARRANTS. Each Debt Warrant may
be exercised at the time or times, or during the period or periods, provided by
or pursuant to the Board Resolution relating thereto and specified in the Debt
Warrant Certificate evidencing such Debt Warrant. Each Debt Warrant not
exercised at or before 5:00 P.M., New York City time, on its Expiration Date
shall become void, unless such Expiration Date has been postponed by notice sent
to all Holders of Debt Warrants as provided in Section 2.03, and all rights of
the Holder of such Debt Warrant thereunder and under this Agreement shall cease.
SECTION 2.02. EXERCISE OF DEBT WARRANTS. (a) The Holder of a
Debt Warrant shall have the right, at its option, to exercise such Debt Warrant
and, subject to subsection (f) of this Section 2.02, purchase the principal
amount of Underlying Debt Securities provided for therein at the time or times
or during the period or periods referred to in Section 2.01 and specified in the
Debt Warrant Certificate evidencing such Debt Warrant. Except as may be
provided in a Debt Warrant Certificate, a Debt Warrant may be exercised by
completing the form of election to purchase set forth on the reverse side of the
Debt Warrant Certificate, by duly executing and delivering the same, together
with payment in full of the Debt Warrant Price in lawful money of the United
States of America, in cash or by certified or official bank check or by bank
wire transfer, or in property, in the manner provided by or pursuant to the
Board Resolution relating thereto and specified in the Debt Warrant Certificate
evidencing such Debt Warrant, to the Debt Warrant Agent. Except as may be
provided in a Debt Warrant Certificate, the date on which such Debt Warrant
Certificate and payment are received by the Debt Warrant Agent as aforesaid
shall be deemed to be the date on which the Debt Warrant is exercised and the
Underlying Debt Securities issued.
(b) Upon the exercise of a Debt Warrant, the Company shall issue,
pursuant to the Indenture, in authorized denominations to or upon the order of
the Holder of such Debt Warrant, the Underlying Debt Securities to which such
Holder is entitled, in the form required under such Indenture, registered, in
the case of Underlying Debt Securities in registered form, in such name or names
as may be directed by such Holder.
<PAGE>
6
(c) If fewer than all of the Debt Warrants evidenced by a Debt
Warrant Certificate are exercised, the Company shall execute, and an authorized
officer of the Debt Warrant Agent shall countersign and deliver, a new Debt
Warrant Certificate evidencing the number of Debt Warrants remaining
unexercised.
(d) The Debt Warrant Agent shall deposit all funds received by it
in payment of the Debt Warrant Price in the account of the Company maintained
with it for such purpose and shall advise the Company by telephone by 5:00 P.M.,
New York City time, of each day on which a payment of the Debt Warrant Price for
Debt Warrants is received of the amount so deposited in its account. The Debt
Warrant Agent shall promptly confirm such telephone advice in writing to the
Company.
(e) The Debt Warrant Agent shall, from time to time, as promptly
as practicable, advise the Company and the Trustee of (i) the number of Debt
Warrants of each title exercised as provided herein, (ii) the instructions of
each Holder with respect to delivery of the Underlying Debt Securities to which
such Holder is entitled upon such exercise, (iii) the delivery of Debt Warrant
Certificates evidencing the balance, if any, of the Debt Warrants remaining
unexercised after such exercise, and (iv) such other information as the Company
or the Trustee shall reasonably require. Such notice may be given by telephone
to be promptly confirmed in writing.
(f) The Holder, and not the Company, shall be required to pay any
stamp or other tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of the Underlying Debt
Securities; and in the event that any such transfer is involved, the Company
shall not be required to issue any Underlying Debt Securities (and the Holder's
purchase of the Underlying Debt Securities upon the exercise of such Holder's
Debt Warrant shall not be deemed to have been consummated) until such tax or
other charge shall have been paid or it has been established to the Company's
satisfaction that no such tax or other charge is due.
SECTION 2.03. TERMINATION DATE. If contemplated by Section 1.01,
the Company may postpone the Termination Date by notice in accordance with the
provisions of Section 5.04(e) sent to all Holders of Debt Warrants at least 30
days before the scheduled Expiration Date. Upon mailing of each notice, the
Expiration Date shall be the date specified in such notice.
<PAGE>
7
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF DEBT WARRANTS
SECTION 3.01. NO RIGHTS AS HOLDER OF UNDERLYING DEBT SECURITY
CONFERRED BY DEBT WARRANTS OR DEBT WARRANT CERTIFICATES. No Debt Warrant or
Debt Warrant Certificate shall entitle the Holder to any of the rights of a
holder of Underlying Debt Securities, including, without limitation, the right
to receive the payment of principal of (or premium, if any) or interest, if any,
on Underlying Debt Securities or to enforce any of the covenants in the
Indenture.
SECTION 3.02. LOST, STOLEN, DESTROYED OR MUTILATED DEBT WARRANT
CERTIFICATES. Upon receipt by the Company and the Debt Warrant Agent of
evidence reasonably satisfactory to them of the ownership of and the loss,
theft, destruction or mutilation of any Debt Warrant Certificate and of
indemnity (other than in connection with any mutilated Debt Warrant Certificates
surrendered to the Debt Warrant Agent for cancellation) reasonably satisfactory
to them, the Company shall execute, and the Debt Warrant Agent shall countersign
and deliver, in exchange for or in lieu of each lost, stolen, destroyed or
mutilated Debt Warrant Certificate, a new Debt Warrant Certificate evidencing a
like number of Debt Warrants of the same title. Upon the issuance of a new Debt
Warrant Certificate under this Section, the Company may require the payment of a
sum sufficient to cover any stamp or other similar tax or other governmental
charge that may be imposed in connection therewith and any other expenses
(including the fees and expenses of the Debt Warrant Agent) in connection
therewith. Every substitute Debt Warrant Certificate executed and delivered
pursuant to this Section in lieu of any lost, stolen or destroyed Debt Warrant
Certificate shall represent a contractual obligation of the Company, whether or
not such lost, stolen or destroyed Debt Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Debt Warrant Certificates,
duly executed and delivered hereunder, evidencing Debt Warrants of the same
title. The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement of
lost, stolen, destroyed or mutilated Debt Warrant Certificates.
SECTION 3.03. HOLDER OF DEBT WARRANTS MAY ENFORCE RIGHTS.
Notwithstanding any of the provisions of this Agreement, a Holder, without the
consent of the Debt Warrant Agent, the Trustee, the holder of any Underlying
Debt Securities or the Holder of any other Debt Warrant, may, on its own behalf
and for its own benefit, enforce, and may institute and maintain any suit,
action or proceeding against the Company to enforce, or otherwise in respect of,
its right to exercise its Debt Warrant or Debt Warrants in the manner provided
in this Agreement and its Debt Warrant Certificate.
<PAGE>
8
SECTION 3.04. MERGER, CONSOLIDATION, SALE, TRANSFER OR CONVEYANCE:
RIGHTS AND DUTIES OF SUCCESSOR CORPORATION. (a) In case of any merger,
consolidation or a sale, transfer or conveyance of the Company, of all or
substantially all of its properties and assets in accordance with the terms of
the Indenture, and upon any assumption of the duties and obligations of the
Company by the successor corporation, such successor corporation shall succeed
to and be substituted for the Company, with the same effect as if it had been
named herein, and the Company shall be relieved of any further obligation under
this Agreement and the Debt Warrants. Such successor corporation thereupon may
cause to be signed, and may issue either in its own name or in the name of the
Company, any or all of the Underlying Debt Securities issuable pursuant to the
terms hereof. All the Underlying Debt Securities so issued shall in all
respects have the same legal rank and benefit under the Indenture as the
Underlying Debt Securities theretofore or thereafter issued in accordance with
the terms of this Agreement and the Indenture.
In case of any such merger, consolidation, sale, transfer or
conveyance, such changes in phraseology and form (but not in substance) may be
made in the Underlying Debt Securities thereafter to be issued as may be
appropriate.
(b) The Debt Warrant Agent may receive a written opinion of legal
counsel as conclusive evidence that any such merger, consolidation, sale,
transfer or conveyance complies with the provisions of this Section 3.04.
(c) In all other cases, the Company and the Debt Warrant Agent may
treat the registered Holder of a Debt Warrant Certificate as the absolute Holder
thereof for any purpose and as the person entitled to exercise the rights
represented by the Debt Warrants evidenced thereby, any notice to the contrary
notwithstanding.
ARTICLE IV
EXCHANGE AND TRANSFER OF DEBT WARRANTS
SECTION 4.01. [DEBT WARRANT REGISTER; ]EXCHANGE AND TRANSFER OF
DEBT WARRANTS. [IF REGISTERED DEBT WARRANTS -- The Debt Warrant Agent shall
maintain, at its corporate trust office [or at ________], a register (the
"Debt Warrant Register") in which, upon the issuance of Debt Warrants, or on and
after the Detachable Date in the case of Debt Warrants not separately
transferable prior thereto, and, subject to such reasonable regulations as the
Debt Warrant Agent may prescribe, it shall register Debt Warrant Certificates
and exchanges and transfers thereof. The Debt Warrant Register shall be in
written form or in any other form capable of being converted into written form
within a reasonable time.]
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Debt Warrant Agent [or at _______], Debt Warrant
Certificates may be
<PAGE>
9
exchanged for one or more other Debt Warrant Certificates evidencing the same
aggregate number of Debt Warrants of the same title, or may be transferred in
whole or in part. A Debt Warrant Certificate evidencing Debt Warrants that are
not then transferable separately from the Offered Security with which they were
issued may be exchanged or transferred prior to its Detachable Date only
together with such Offered Security and only for the purpose of effecting, or in
conjunction with, an exchange or transfer of such Offered Security; and on or
prior to the Detachable Date, [IF REGISTERED OFFERED SECURITIES AND DEBT
WARRANTS -- each exchange or transfer of such Offered Security on the security
register of the Offered Securities shall operate also to exchange or transfer
the related Debt Warrants] [IF BEARER OFFERED SECURITIES AND DEBT WARRANTS -- an
exchange or transfer of possession of the related Offered Security shall operate
also to exchange or transfer the related Debt Warrants]. [IF REGISTERED DEBT
WARRANTS -- A transfer shall be registered upon surrender of a Debt Warrant
Certificate to the Debt Warrant Agent at its corporate trust office [or at ___
________________] for transfer, properly endorsed or accompanied by appropriate
instruments of transfer and written instructions for transfer, all in form
satisfactory to the Company and the Debt Warrant Agent.] Whenever a Debt
Warrant Certificate is surrendered for exchange or transfer, the Debt Warrant
Agent shall countersign and deliver to the person or persons entitled thereto
one or more Debt Warrant Certificates duly executed by the Company, as so
requested. The Debt Warrant Agent shall not be required to effect any exchange
or transfer which will result in the issuance of a Debt Warrant Certificate
evidencing a fraction of a Debt Warrant. All Debt Warrant Certificates issued
upon any exchange or transfer of a Debt Warrant Certificate shall be the valid
obligations of the Company, evidencing the same obligations, and entitled to
the same benefits under this Agreement, as the Debt Warrant Certificate
surrendered for such exchange or
transfer.
No service charge shall be made for any exchange or transfer of Debt
Warrants, 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 such
exchange or transfer, in accordance with Section 2.02(f) hereof.
SECTION 4.02. TREATMENT OF HOLDERS OF DEBT WARRANT CERTIFICATES.
Every Holder of a Debt Warrant, by accepting the Debt Warrant Certificate
evidencing the same, consents and agrees with the Company, the Debt Warrant
Agent and with every other Holder of Debt Warrants of the same title that the
Company and the Debt Warrant Agent may treat the registered Holder of a Debt
Warrant Certificate (or, if the Debt Warrant Certificate is not then detachable,
the Holder of the related Offered Debt Security) as the absolute owner of such
Debt Warrant for all purposes and as the person entitled to exercise the rights
represented by such Debt Warrant, any notice to the contrary notwithstanding.
SECTION 4.03. CANCELLATION OF DEBT WARRANT CERTIFICATES. In the
event that the Company shall purchase, redeem or otherwise acquire any Debt
Warrants after the issuance thereof, the Debt Warrant Certificate or
Certificates evidencing such Debt Warrants
<PAGE>
10
shall thereupon be delivered to the Debt Warrant Agent and be cancelled by it.
The Debt Warrant Agent shall also cancel any Debt Warrant Certificate (including
any mutilated Debt Warrant Certificate) delivered to it for exercise, in whole
or in part, or for exchange [or transfer] [IF DEBT WARRANT CERTIFICATES ARE
ISSUED IN BEARER FORM -- , except that Debt Warrant Certificates delivered to
the Debt Warrant Agent in exchange for Debt Warrant Certificates of other
denominations may be retained by the Debt Warrant Agent for reissue]. Debt
Warrant Certificates so cancelled shall be delivered by the Debt Warrant Agent
to the Company from time to time, or disposed of in accordance with the
instructions of the Company.
ARTICLE V
CONCERNING THE DEBT WARRANT AGENT
SECTION 5.01. DEBT WARRANT AGENT. The Company hereby appoints
___________ as Debt Warrant Agent of the Company in respect of the Debt
Warrants and the Debt Warrant Certificates upon the terms and subject to
the conditions set forth herein; and ____________________ hereby accepts
such appointment. The Debt Warrant Agent shall have the powers and authority
granted to and conferred upon it hereby and such further powers and authority
to act on behalf of the Company as the Company may hereafter grant to or
confer upon it. All of the terms and provisions with respect to such powers and
authority contained in any Debt Warrant Certificate are subject to and governed
by the terms and provisions hereof.
SECTION 5.02. CONDITIONS OF DEBT WARRANT AGENT'S OBLIGATIONS.
The Debt Warrant Agent accepts its obligations set forth herein upon the terms
and conditions hereof, including the following, to all of which the Company
agrees and to all of which the rights hereunder of the Holders shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees to
promptly pay the Debt Warrant Agent the compensation set forth in Exhibit
A hereto and to reimburse the Debt Warrant Agent for reasonable
out-of-pocket expenses (including counsel fees) incurred by the Debt
Warrant Agent in connection with the services rendered hereunder by the
Debt Warrant Agent. The Company also agrees to indemnify the Debt Warrant
Agent for, and to hold it harmless against, any loss, liability or expense
(including the reasonable costs and expenses of defending against any
claim of liability) incurred without negligence or bad faith on the part
of the Debt Warrant Agent arising out of or in connection with its
appointment as Debt Warrant Agent hereunder.
<PAGE>
11
(b) AGENT FOR THE COMPANY. In acting under this Agreement and
in connection with any Debt Warrant Certificate, the Debt Warrant Agent is
acting solely as agent of the Company and does not assume any obligation
or relationship of agency or trust for or with any Holder.
(c) COUNSEL. The Debt Warrant Agent may consult with counsel
satisfactory to it, and the advice of such 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 accordance with
the advice of such counsel.
(d) DOCUMENTS. The Debt Warrant Agent shall be protected and
shall incur no liability for or in respect of any action taken, suffered
or omitted by it in reliance upon any notice, direction, consent,
certificate, affidavit, statement or other paper or document reasonably
believed by it to be genuine and to have been presented or signed by the
proper parties.
(e) OFFICER'S CERTIFICATE. Whenever in the performance of its
duties hereunder the Debt Warrant Agent shall reasonably deem it necessary
that any fact or matter be proved or established by the Company prior to
taking, suffering or omitting any action hereunder, the Debt Warrant Agent
may (unless other evidence in respect thereof be herein specifically
prescribed), in the absence of bad faith on its part, rely upon a
certificate signed by the Chairman, the President, a Vice President, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Company (an "Officer's Certificate") delivered by the Company to
the Debt Warrant Agent.
(f) ACTIONS THROUGH AGENTS. The Debt Warrant Agent may execute
and exercise any of the rights or powers hereby vested in it or perform
any duty hereunder either itself or by or through its attorneys or agents,
and the Debt Warrant Agent shall not be answerable or accountable for any
act, default, neglect or misconduct of any such attorney or agent or for
any loss to the Company resulting from such neglect or misconduct;
provided, however, that reasonable care shall have been exercised in the
selection and continued employment of such attorneys and agents.
(g) CERTAIN TRANSACTIONS. The Debt Warrant Agent, and any
officer, director or employee thereof, may become the owner of, or acquire
any interest in, any Debt Warrant, with the same rights that he, she or it
would have if it were not the Debt Warrant Agent, and, to the extent
permitted by applicable law, he, she or it may engage or be interested in
any financial or other transaction with the Company and may serve on, or
as depositary, trustee or agent for, any committee or body of holders of
Underlying Debt Securities or other obligations of the Company as if it
<PAGE>
12
were not the Debt Warrant Agent. Nothing in this Agreement shall be
deemed to prevent the Debt Warrant Agent from acting as Trustee under the
Indenture.
(h) NO LIABILITY FOR INTEREST. The Debt Warrant Agent shall not
be liable for interest on any monies at any time received by it pursuant
to any of the provisions of this Agreement or of the Debt Warrant
Certificates, except as otherwise agreed with the Company.
(i) NO LIABILITY FOR INVALIDITY. The Debt Warrant Agent shall
incur no liability with respect to the validity of this Agreement (except
as to the due execution hereof by the Debt Warrant Agent) or any Debt
Warrant Certificate (except as to the countersignature thereof by the Debt
Warrant Agent).
(j) NO RESPONSIBILITY FOR COMPANY REPRESENTATIONS. The Debt
Warrant Agent shall not be responsible for any of the recitals or
representations contained herein (except as to such statements or recitals
as describe the Debt Warrant Agent or action taken or to be taken by it)
or in any Debt Warrant Certificate (except as to the Debt Warrant Agent's
countersignature on such Debt Warrant Certificate), all of which recitals
and representations are made solely by the Company.
(k) NO IMPLIED OBLIGATIONS. The Debt Warrant Agent shall be
obligated to perform only such duties as are specifically set forth
herein, and no other duties or obligations shall be implied. The Debt
Warrant Agent shall not be under any obligation to take any action
hereunder that may subject it to any expense or liability, the payment of
which within a reasonable time is not, in its reasonable opinion, assured
to it. The Debt Warrant Agent shall not be accountable or under any duty
or responsibility for the use by the Company of any Debt Warrant
Certificate countersigned by the Debt Warrant Agent and delivered by it to
the Company pursuant to this Agreement or for the application by the
Company of the proceeds of the issuance or exercise of Debt Warrants. The
Debt Warrant Agent shall have no duty or responsibility in case of any
default by the Company in the performance of its covenants or agreements
contained herein or in any Debt Warrant Certificate or in case of the
receipt of any written demand from a Holder with respect to such default,
including, without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law
or otherwise or, except as provided in Section 6.02 hereof, to make any
demand upon the Company.
SECTION 5.03. COMPLIANCE WITH APPLICABLE LAWS. The Debt Warrant
Agent agrees to comply with all applicable federal and state laws imposing
obligations on it in respect of the services rendered by it under this Debt
Warrant Agreement and in connection with the Debt Warrants, including (but not
limited to) the provisions of United States federal income tax laws regarding
information reporting and backup withholding. The
<PAGE>
13
Debt Warrant Agent expressly assumes all liability for its failure to comply
with such laws imposing obligations on it, including (but not limited to) any
liability for failure to comply with any applicable provisions of United States
federal income tax laws regarding information reporting and backup withholding.
SECTION 5.04. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders of Debt Warrants, that
there shall at all times be a Debt Warrant Agent hereunder until all the Debt
Warrants are no longer exercisable.
(b) The Debt Warrant Agent may at any time resign as such by giving
written notice to the Company, specifying the date on which such resignation
shall become effective; provided that such date shall not be less than 90 days
after the date on which such notice is given, unless the Company agrees to
accept a shorter notice. The Debt Warrant Agent may be removed at any time by
the filing with it of an instrument in writing signed by or on behalf of the
Company and specifying such removal and the date when it shall become effective.
Notwithstanding the two preceding sentences, such resignation or removal shall
take effect only upon the appointment by the Company, as hereinafter provided,
of a successor Debt Warrant Agent (which shall be a bank or trust company
organized and doing business under the laws of the United States of America, any
State thereof or the District of Columbia, authorized under the laws of such
jurisdiction to exercise corporate trust powers and having at the time of its
appointment as Debt Warrant Agent a combined capital and surplus (as set forth
in its most recent published report of condition) of at least $50,000,000) and
the acceptance of such appointment by such successor Debt Warrant Agent.
(c) In case at any time the Debt Warrant Agent shall resign, or
shall be removed, or shall become incapable of acting, or shall be adjudged a
bankrupt or insolvent, or shall file a petition seeking relief under Title 11 of
the United States Code, as now constituted or hereafter amended, or under any
other applicable federal or state bankruptcy or similar law, or make an
assignment for the benefit of its creditors, or consent to the appointment of a
receiver or custodian for all or any substantial part of its property, or shall
admit in writing its inability to pay or meet its debts as they mature, or if a
receiver or custodian for it or for all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered for relief
against it under the provisions of Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other applicable federal or state
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Debt Warrant Agent or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation, a successor Debt Warrant Agent,
qualified as aforesaid, shall be appointed by the Company by an instrument in
writing, filed with the successor Debt Warrant Agent. Upon the appointment as
aforesaid of a successor Debt Warrant Agent and acceptance by the successor Debt
Warrant Agent of such appointment, the Debt Warrant Agent so superseded shall
cease to be Debt Warrant Agent hereunder.
<PAGE>
14
(d) Any successor Debt Warrant Agent appointed hereunder shall
execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Debt Warrant Agent, without any further act, deed or conveyance, shall become
vested with all the authority, rights, powers, trusts, immunities, duties and
obligations of such predecessor with like effect as if originally named as Debt
Warrant Agent hereunder, and such predecessor, upon payment of its charges and
disbursements then unpaid, shall thereupon become obligated to transfer, deliver
and pay over, and such successor Debt Warrant Agent shall be entitled to
receive, [the Debt Warrant Register and] all monies, securities and other
property on deposit with or held by such predecessor (together with any books
and records relating thereto), as Debt Warrant Agent hereunder.
(e) The Company shall cause notice of the appointment of any
successor Debt Warrant Agent to be [IF REGISTERED DEBT WARRANTS -- mailed by
first-class mail, postage prepaid, to each Holder at its address appearing on
the Debt Warrant Register or, in the case of Debt Warrants that are issued with
Offered Securities and cannot then be transferred separately therefrom, on the
security register for the Offered Securities] [IF BEARER DEBT WARRANTS --
published in an Authorized Newspaper (as defined in Section 1.01 of the
Indenture) in The City of New York [and in such other city or cities as may be
specified by the Company] at least twice within any seven-day period]. Such
notice shall set forth the name and address of the successor Debt Warrant Agent.
Failure to give any notice provided for in this Section 5.03(e), or any defect
therein, shall not, however, affect the legality or validity of the appointment
of the successor Debt Warrant Agent.
(f) Any corporation into which the Debt Warrant Agent may be merged
or converted, or any corporation with which the Debt Warrant Agent may be
consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Debt Warrant Agent shall be a party, or any
corporation to which the Debt Warrant Agent shall sell or otherwise transfer all
or substantially all of its assets and business, shall be the successor Debt
Warrant Agent under this Agreement without the execution or filing of any paper,
the giving of any notice to Holders or any further act on the part of the
parties hereto, provided that such corporation be qualified as aforesaid.
SECTION 5.05. OFFICE. The Company will maintain an office or
agency where Debt Warrant Certificates may be presented for exchange[,
transfer] or exercise. The office initially designated for this purpose shall
be the corporate trust office of the Debt Warrant Agent at _______________.
<PAGE>
15
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. SUPPLEMENTS AND AMENDMENTS. (a) The Company and
the Debt Warrant Agent may from time to time supplement or amend this Agreement
without the approval of any Holder in order to cure any ambiguity, to correct or
supplement any provision contained herein that may be defective or inconsistent
with any other provision herein, or to make any other provision in regard to
matters or questions arising hereunder that the Company and the Debt Warrant
Agent may deem necessary or desirable and that shall not materially adversely
affect the interests of the Holders. Every Holder of Debt Warrants, whether
issued before or after any such supplement or amendment, shall be bound thereby.
Promptly after the effectiveness of any supplement or amendment that affects the
interests of the Holders, the Company shall give notice thereof, as provided in
Section 5.04(e) hereof, to the Holders affected thereby, setting forth in
general terms the substance of such supplement or amendment.
(b) The Company and the Debt Warrant Agent may modify or amend
this Agreement and the Debt Warrant Certificates with the consent of the Holders
of not fewer than a majority in number of the then outstanding unexercised Debt
Warrants affected by such modification or amendment, for any purpose;
PROVIDED, HOWEVER, that no such modification or amendment that shortens the
period of time during which the Debt Warrants may be exercised, or otherwise
materially and adversely affects the exercise rights of the Holders or reduces
the percentage of Holders of outstanding Debt Warrants the consent of which is
required for modification or amendment of this Agreement or the Debt Warrants,
may be made without the consent of each Holder affected thereby.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND DEBT WARRANT
AGENT. If the Debt Warrant Agent shall receive any notice or demand addressed
to the Company by a Holder pursuant to the provisions of this Agreement or a
Debt Warrant Certificate (other than notices relating to the exchange[,
transfer] or exercise of Debt Warrants), the Debt Warrant Agent shall promptly
forward such notice or demand to the Company.
SECTION 6.03. ADDRESSES. Any communications from the Company to
the Debt Warrant Agent with respect to this Agreement shall be directed to ____,
Attention:_____________, and any communications from the Debt Warrant Agent to
the Company with respect to this Agreement shall be directed to Deere & Company,
John Deere Road, Moline, Illinois 61265-8098, Attention: [Treasurer], with a
copy to the [Secretary] (or such other address as shall be specified in writing
by the Debt Warrant Agent or by the Company).
<PAGE>
16
SECTION 6.04. GOVERNING LAW. This Agreement and the Debt
Warrants shall be governed by and construed in accordance with the laws of the
State of New York applicable to contracts made and to be performed entirely
within such State.
SECTION 6.05. GOVERNMENTAL APPROVALS. The Company will from time
to time use all reasonable efforts to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and the
national securities exchange on which the Debt Warrants may be listed or
authorized for trading and to make all filing under the United States federal
and state laws, which may be or become requisite in connection with the
issuance, sale, trading, transfer or delivery of the Debt Warrants, and the
exercise of the Debt Warrants.
SECTION 6.06. PERSONS HAVING RIGHTS UNDER DEBT WARRANT AGREEMENT.
Nothing in this Agreement, expressed or implied, and nothing that may be
inferred from any of the provisions hereof is intended or shall be construed to
confer upon or give to any person or corporation other than the Company, the
Debt Warrant Agent and the Holders any right, remedy or claim under or by reason
of this Agreement or any covenant, condition, stipulation, promise or agreement
herein; and all covenants, conditions, stipulations, promises and agreements
herein shall be for the sole and exclusive benefit of the Company, the Debt
Warrant Agent and their respective successors and the Holders.
SECTION 6.07. DELIVERY OF PROSPECTUS. The Company will furnish
to the Debt Warrant Agent sufficient copies of a prospectus or prospectuses
relating to the Underlying Debt Securities deliverable upon exercise of any
outstanding Debt Warrants (each a "Prospectus"), and the Debt Warrant Agent
agrees to deliver to the Holder of a Debt Warrant, prior to or concurrently with
the delivery of the Underlying Debt Securities issued upon the exercise thereof,
a copy of the Prospectus relating to such Underlying Debt Securities.
SECTION 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections of this Agreement are inserted for convenience only and
shall not control or affect the meaning or construction of any of the provisions
hereof.
SECTION 6.09. COUNTERPARTS. This Agreement may be executed in
one or more counterparts and, when a counterpart has been executed by each party
hereto, all such counterparts taken together shall constitute one and the same
agreement.
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement
shall be available during normal business hours at the office of the Debt
Warrant Agent for inspection by any Holder. The Debt Warrant Agent may require
such Holder to submit its Debt Warrant Certificate for inspection prior to
making such copy available.
<PAGE>
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DEERE & COMPANY
[Seal]
By
-------------------------------
Attest: NAME AND TITLE:
- -------------------------------------
NAME AND TITLE:
-------------------------------
[Seal]
Attest:
By
- ------------------------------------- -------------------------------
NAME AND TITLE: NAME AND TITLE:
<PAGE>
Exhibit A
to
Debt Warrant Agreement
dated as of , 19
------------ ---
[Compensation of Debt Warrant Agent]
<PAGE>
Exhibit 4.6
COMMON STOCK WARRANT AGREEMENT*
dated as of , 19
------------------ ---
FOR
[UP TO ] COMMON STOCK WARRANTS
-----------
EXPIRING , 19
----------------- ---
between
DEERE & COMPANY
and
[NAME OF COMMON STOCK WARRANT AGENT], as
Common Stock Warrant Agent
- ----------------------
* OPTIONS REPRESENTED BY BRACKETED OR BLANK SECTIONS HEREIN SHALL BE
DETERMINED IN CONFORMITY WITH THE APPLICABLE PROSPECTUS SUPPLEMENT OR
SUPPLEMENTS.
<PAGE>
TABLE OF CONTENTS*
Page
----
PARTIES..................................................................... 1
RECITALS.................................................................... 1
ARTICLE I
ISSUANCE OF COMMON STOCK WARRANTS AND EXECUTION AND
DELIVERY OF COMMON STOCK WARRANT CERTIFICATES
SECTION 1.01. Issuance of Common Stock Warrants........................... 1
SECTION 1.02. Form and Execution of Common Stock Warrant Certificates. ... 2
SECTION 1.03. Issuance and Delivery of Common Stock Warrant Certificates. 3
SECTION 1.04. Temporary Common Stock Warrant Certificates................. 3
SECTION 1.05. Payment of Taxes............................................ 4
SECTION 1.06. "Holder".................................................... 4
ARTICLE II
DURATION AND EXERCISE OF COMMON STOCK WARRANTS
SECTION 2.01. Duration of Common Stock Warrants........................... 5
SECTION 2.02. Exercise of Common Stock Warrants. ......................... 5
SECTION 2.03. Common Stock Warrant Adjustments. .......................... 7
- --------------------
* The Table of Contents is not a part of the Common Stock Warrant Agreement.
<PAGE>
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF COMMON STOCK WARRANTS
SECTION 3.01. No Rights as Holder of Common Stock Conferred by Common
Stock Warrants or Common Stock Warrant Certificates......... 7
SECTION 3.02. Lost, Stolen, Destroyed or Mutilated Common Stock Warrant
Certificates................................................ 7
SECTION 3.03. Holders of Common Stock Warrants May Enforce Rights......... 8
SECTION 3.04. Merger, Consolidation, Sale, Transfer or Conveyance......... 8
SECTION 3.05. Treatment of Holders of Common Stock Warrant Certificates... 9
ARTICLE IV
EXCHANGE AND TRANSFER OF COMMON STOCK WARRANTS
SECTION 4.01. Common Stock Warrant Register; Exchange and Transfer of
Common Stock Warrants....................................... 9
SECTION 4.02. Treatment of Holders of Common Stock Warrants............... 10
SECTION 4.03. Cancellation of Common Stock Warrant Certificates........... 10
ARTICLE V
CONCERNING THE COMMON STOCK WARRANT AGENT
SECTION 5.01. Common Stock Warrant Agent. ................................ 11
SECTION 5.02. Conditions of Common Stock Warrant Agent's Obligations...... 11
SECTION 5.03. Compliance with Applicable Laws............................. 14
SECTION 5.04. Resignation and Removal; Appointment of Successor........... 14
<PAGE>
Page
----
iii
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. Supplements and Amendments.................................. 16
SECTION 6.02. Notices and Demands to the Company and Common Stock Warrant
Agent....................................................... 16
SECTION 6.03. Addresses for Notices....................................... 16
SECTION 6.04. Governing Law............................................... 17
SECTION 6.05. Governmental Approvals...................................... 17
SECTION 6.06. Persons Having Rights Under Common Stock Warrant Agreement.. 17
SECTION 6.07. Delivery of Prospectus...................................... 17
SECTION 6.08. Headings.................................................... 17
SECTION 6.09. Counterparts. .............................................. 17
SECTION 6.10. Inspection of Agreement..................................... 17
TESTIMONIUM................................................................ 18
SIGNATURES................................................................. 18
EXHIBIT A---Common Stock Warrant Agreement Compensation
<PAGE>
This COMMON STOCK WARRANT AGREEMENT, dated as of___________,
between Deere & Company, a Delaware corporation (the "Company"), and ______, a
organized and existing under the laws of________, warrant agent (the "Common
Warrant Agent").
WHEREAS, the Company proposes to sell [title of preferred stock,
common stock or other securities being offered (the "Offered Securities") with]
certificates evidencing one or more warrants (the "Common Stock Warrants" or,
individually, a "Common Stock Warrant") representing the right to purchase
shares of the common stock, par value $[_______] per share, of the Company
(the "Common Stock"), such warrant certificates and other warrant certificates
issued pursuant to this Agreement being herein called the "Common Stock Warrant
Certificates"; and
WHEREAS, the Company has duly authorized the execution and delivery
of this Common Stock Warrant Agreement to provide for the issuance of Common
Stock Warrants to be exercisable at such times and for such prices, and to have
such other provisions, as shall be fixed as herein after provided;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements herein contained, the parties hereto agree as follows:
ARTICLE I
ISSUANCE OF COMMON STOCK WARRANTS AND EXECUTION AND
DELIVERY OF COMMON STOCK WARRANT CERTIFICATES
SECTION 1.01. ISSUANCE OF COMMON STOCK WARRANTS. Common Stock
Warrants may be issued from time to time, together with or separately from
Offered Securities. Prior to the issuance of any Common Stock Warrants, there
shall be established by or pursuant to a resolution or resolutions duly adopted
by the Company's Board of Directors or by any committee thereof duly authorized
to act with respect thereto (a "Board Resolution"):
(1) The title and aggregate number of such Common Stock Warrants.
(2) The offering price of such Common Stock Warrant.
(3) The number of shares of Common Stock that may be purchased
upon exercise of each such Common Stock Warrant; the price, or the manner
of determining the price (the "Common Stock Warrant Price"), at which such
shares of Common Stock may be purchased upon exercise of such Common Stock
Warrants; if other than cash, the property and manner in which the Common
Stock Warrant Price
<PAGE>
2
may be paid; and any minimum number of such Common Stock Warrants that are
exercisable at any one time.
(4) The time or times at which, or period or periods during which,
such Common Stock Warrants may be exercised and the final date on which
such Common Stock Warrants may be exercised (the "Expiration Date").
(5) The terms of any right to redeem such Common Stock Warrants.
(6) The terms of any right of the Company to accelerate the Common
Stock Warrants upon the occurrence of certain events.
(7) Where the registered warrant certificates evidencing such
Common Stock Warrants (the "Common Stock Warrant Certificates") may be
transferred and exchanged.
(8) Whether such Common Stock Warrants are to be issued with any
Offered Securities and, if so, the number and terms of any such Offered
Securities.
(9) The date, if any, on and after which the Common Stock Warrants
and the Offered Securities will be separately transferable (the
"Detachable Date").
(10) Any other terms of such Common Stock Warrants not inconsistent
with the provisions of this Agreement.
SECTION 1.02. FORM AND EXECUTION OF COMMON STOCK WARRANT
CERTIFICATES. (a) The Common Stock Warrants shall be evidenced by the Common
Stock Warrant Certificates, which shall be in registered form and substantially
in such form or forms as shall be established by or pursuant to a Board
Resolution. Each Common Stock Warrant Certificate, whenever issued, shall be
dated the date it is countersigned by the Common Stock Warrant Agent and may
have such letters, numbers or other marks of identification and such legends or
endorsements printed, lithographed or engraved thereon as are not inconsistent
with the provisions of this Agreement, or as may be required to comply with any
law, rule or regulation or with any rule or regulation of any securities
exchange on which the Common Stock or Common Stock Warrants may be listed, or to
conform to usage, as the officer of the Company executing the same may approve
(his execution thereof to be conclusive evidence of such approval). Each Common
Stock Warrant Certificate shall evidence one or more Common Stock Warrants.
(b) The Common Stock Warrant Certificates shall be signed in the
name and on behalf of the Company by its Chairman, President or any Vice
President (any reference to a Vice President of the Company herein shall be
deemed to include any Vice
<PAGE>
3
President of the Company whether or not designated by a number or a word or
words added before or after the title "Vice President") under its corporate
seal, and attested by its Secretary or an Assistant Secretary. Such signatures
may be manual or facsimile signatures of the present or any future holder of any
such office and may be imprinted or otherwise reproduced on the Common Stock
Warrant Certificates. The seal of the Company may be in the form of a facsimile
thereof and may be impressed, affixed, imprinted or otherwise reproduced on the
Common Stock Warrant Certificates.
(c) No Common Stock Warrant Certificate shall be valid for any
purpose, and no Common Stock Warrant evidenced thereby shall be deemed issued or
exercisable, until such Common Stock Warrant Certificate has been countersigned
by the manual or facsimile signature of the Common Stock Warrant Agent. Such
signature by the Common Stock Warrant Agent upon any Common Stock Warrant
Certificate executed by the Company shall be conclusive evidence that the Common
Stock Warrant Certificate so countersigned has been duly issued hereunder.
(d) In case any officer of the Company who shall have signed any
Common Stock Warrant Certificate either manually or by facsimile signature shall
cease to be such officer before the Common Stock Warrant Certificate so signed
shall have been countersigned and delivered by the Common Stock Warrant Agent,
such Common Stock Warrant Certificate nevertheless may be countersigned and
delivered as though the person who signed such Common Stock Warrant Certificate
had not ceased to be such officer of the Company; and any Common Stock Warrant
Certificate may be signed on behalf of the Company by such person as, at the
actual date of the execution of such Common Stock Warrant Certificate, shall be
the proper officer of the Company, although at the date of the execution of this
Agreement such person was not such an officer.
SECTION 1.03. ISSUANCE AND DELIVERY OF COMMON STOCK WARRANT
CERTIFICATES. At any time and from time to time after the execution and
delivery of this Agreement, the Company may deliver Common Stock Warrant
Certificates executed by the Company to the Common Stock Warrant Agent for
countersignature. Except as provided in the following sentence, the Common
Stock Warrant Agent shall thereupon countersign and deliver such Common Stock
Warrant Certificates to or upon the written request of the Company. Subsequent
to the original issuance of a Common Stock Warrant Certificate evidencing Common
Stock Warrants, the Common Stock Warrant Agent shall countersign a new Common
Stock Warrant Certificate evidencing such Common Stock Warrants only if such
Common Stock Warrant Certificate is issued in exchange or substitution for one
or more previously countersigned Common Stock Warrant Certificates evidencing
such Common Stock Warrants or in connection with their transfer, as hereinafter
provided.
SECTION 1.04. TEMPORARY COMMON STOCK WARRANT CERTIFICATES.
Pending the preparation of definitive Common Stock Warrant Certificates, the
Company may execute,
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4
and upon the order of the Company the Common Stock Warrant Agent shall
countersign and deliver, temporary Common Stock Warrant Certificates that are
printed, lithographed, typewritten, mimeographed or otherwise produced,
substantially of the tenor of the definitive Common Stock Warrant Certificates
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the officer executing such
Common Stock Warrant Certificates may determine, as evidenced by his execution
of such Common Stock Warrant Certificates.
If temporary Common Stock Warrant Certificates are issued, the
Company will cause definitive Common Stock Warrant Certificates to be prepared
without unreasonable delay. After the preparation of definitive Common Stock
Warrant Certificates, the temporary Common Stock Warrant Certificates shall be
exchangeable for definitive Common Stock Warrant Certificates upon surrender of
the temporary Common Stock Warrant Certificates at the corporate trust office of
the Common Stock Warrant Agent [or _________________], without charge to the
Holder, as defined in Section 1.06 hereof. Upon surrender for cancellation of
any one or more temporary Common Stock Warrant Certificates, the Company shall
execute and the Common Stock Warrant Agent shall countersign and deliver in
exchange therefor definitive Common Stock Warrant Certificates representing the
same aggregate number of Common Stock Warrants. Until so exchanged, the
temporary Common Stock Warrant Certificates shall in all respects be entitled to
the same benefits under this Agreement as definitive Common Stock Warrant
Certificates.
SECTION 1.05. PAYMENT OF TAXES. The Company will pay all stamp
and other similar duties, if any, to which this Agreement or the original
issuance of the Common Stock Warrants or Common Stock Warrant Certificates may
be subject under the laws of the United States of America or any state or
locality. The Company is not responsible for the payment of any other taxes.
SECTION 1.06. "HOLDER". The term "Holder" or "Holders" as used
herein with reference to a Common Stock Warrant Certificate shall mean the
person or persons in whose name such Common Stock Warrant Certificate shall then
be registered as set forth in the Common Stock Warrant Register to be maintained
by the Common Stock Warrant Agent pursuant to Section 4.01 for that purpose or,
in the case of Common Stock Warrants that are issued with Offered Securities and
cannot then be transferred separately therefrom, the person or persons in whose
name the related Offered Securities shall be registered as set forth in the
security register for such Offered Securities, prior to the Detachable Date. In
the case of Common Stock Warrants that are issued with Offered Securities and
cannot then be transferred separately therefrom, the Company will, or will cause
the security registrar of any such Offered Securities to, make available to the
Common Stock Warrant Agent at all times (including on and after the Detachable
Date, in the case of Common Stock Warrants originally issued with Offered
Securities and not subsequently transferred separately therefrom) such
information as to holders of Offered Securities with Common Stock
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5
Warrants attached thereto as may be necessary to keep the Common Stock Warrant
Register up to date.
ARTICLE II
DURATION AND EXERCISE OF COMMON STOCK WARRANTS
SECTION 2.01. DURATION OF COMMON STOCK WARRANTS. Each Common
Stock Warrant may be exercised at the time or times, or during the period or
periods, provided by or pursuant to the Board Resolution relating thereto and
specified in the Common Stock Warrant Certificate evidencing such Common Stock
Warrant. Each Common Stock Warrant not exercised at or before 5:00 P.M., New
York City time, on its Expiration Date shall become void, and all rights of the
Holder of such Common Stock Warrant thereunder and under this Agreement shall
cease, PROVIDED that the Company reserves the right to, and may, in its sole
discretion, at any time and from time to time, at such time or times as the
Company so determines, extend the expiration date of the Common Stock Warrants
for such periods of time as it chooses; FURTHER PROVIDED that in no case may
the expiration date of the Common Stock Warrants (as extended) be extended
beyond five years from the expiration date set forth above. Whenever the
expiration date of the Common Stock Warrants is so extended, the Company shall
at least 20 days prior to the then expiration date cause to be mailed to the
Common Stock Warrant Agent and the registered Holders of the Common Stock
Warrants in accordance with the provisions of Section 5.03 hereof a notice
stating that the expiration date has been extended and setting forth the new
expiration date. No adjustment shall be made for any dividends on any Common
Stock issuable upon exercise of any Common Stock Warrant.
SECTION 2.02. EXERCISE OF COMMON STOCK WARRANTS. (a) The Holder
of a Common Stock Warrant shall have the right, at its option, to exercise such
Common Stock Warrant and, subject to subsection (e) of this Section 2.02,
purchase the number of shares of Common Stock provided for therein at the time
or times or during the period or periods referred to in Section 2.01 and
specified in the Common Stock Warrant Certificate evidencing such Common Stock
Warrant. No fewer than the minimum number of Common Stock Warrants as set forth
in the Common Stock Warrant Certificate may be exercised by or on behalf of any
one Holder at any one time. Except as may be provided in a Common Stock Warrant
Certificate, a Common Stock Warrant may be exercised by completing the form of
election to purchase set forth on the reverse side of the Common Stock Warrant
Certificate, by duly executing the same, and by delivering the same, together
with payment in full of the Common Stock Warrant Price, in lawful money of the
United States of America, in cash or by certified or official bank check or by
bank wire transfer, or in property, in the manner provided by or pursuant to the
Board Resolution relative thereto and specified in the Common Stock Warrant
Certificate evidencing such Common Stock Warrant,
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6
to the Common Stock Warrant Agent. Except as may be provided in a Common Stock
Warrant Certificate, the date on which such Common Stock Warrant Certificate and
payment are received by the Common Stock Warrant Agent as aforesaid shall be
deemed to be the date on which the Common Stock Warrant is exercised and the
relevant shares of Common Stock are issued.
(b) Upon the exercise of a Common Stock Warrant, the Company shall
issue, to or upon the order of the Holder of such Common Stock Warrant, the
shares of Common Stock to which such Holder is entitled, registered, in the
case of shares of Common Stock in registered form, in such name or names as may
be directed by such Holder.
(c) If fewer than all of the Common Stock Warrants evidenced by a
Common Stock Warrant Certificate are exercised, the Company shall execute, and
an authorized officer of the Common Stock Warrant Agent shall countersign and
deliver, a new Common Stock Warrant Certificate evidencing the number of Common
Stock Warrants remaining unexercised.
(d) The Common Stock Warrant Agent shall deposit all funds
received by it in payment of the Common Stock Warrant Price for Common Stock
Warrants in the account of the Company maintained with it for such purpose and
shall advise the Company by telephone by 5:00 P.M., New York City time, of each
day on which a payment of the Common Stock Warrant Price for Common Stock
Warrants is received of the amount so deposited in its account. The Common
Stock Warrant Agent shall promptly confirm such telephone advice in writing to
the Company.
(e) The Common Stock Warrant Agent shall, from time to time, as
promptly as practicable, advise the Company of (i) the number of Common Stock
Warrants of each title exercised as provided herein, (ii) the instructions of
each Holder of such Common Stock Warrants with respect to delivery of the Common
Stock issued upon exercise of such Common Stock Warrants to which such Holder is
entitled upon such exercise, and (iii) such other information as the Company or
such Trustee shall reasonably require. Such notice may be given by telephone to
be promptly confirmed in writing.
(f) The Holder, and not the Company, shall be required to pay any
stamp or other tax or other governmental charge that may be imposed in
connection with any transfer involved in the issuance of the Common Stock; and
in the event that any such transfer is involved, the Company shall not be
required to issue any Common Stock (and the Holder's purchase of the shares of
Common Stock issued upon the exercise of such Holder's Common Stock Warrant
shall not be deemed to have been consummated) until such tax or other charge
shall have been paid or it has been established to the Company's satisfaction
that no such tax or other charge is due.
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7
SECTION 2.03. COMMON STOCK WARRANT ADJUSTMENTS. The terms and
conditions, if any, on which the exercise price of and/or the number of shares
of Common Stock covered by a Common Stock Warrant are subject to adjustments
will be set forth in the Prospectus Supplement relating thereto. Such terms
will include the adjustment mechanism for the exercise price of, and the number
of shares of Common Stock covered by, a Common Stock Warrant, the events
requiring such adjustments, the events upon which the Company may, in lieu of
making such adjustments, make proper provisions so that the Holder, upon
exercise of such Holder's Common Stock Warrant, would be treated as if such
Holder had been a holder of the Common Stock received upon such exercise, prior
to the occurrence of such events, and provisions affecting exercise of the
Common Stock Warrants in the event of certain events affecting the Common Stock.
ARTICLE III
OTHER PROVISIONS RELATING TO RIGHTS OF HOLDERS
OF COMMON STOCK WARRANTS
SECTION 3.01. NO RIGHTS AS HOLDER OF COMMON STOCK CONFERRED BY
COMMON STOCK WARRANTS OR COMMON STOCK WARRANT CERTIFICATES. A Holder of a
Common Stock Warrant or Common Stock Warrant Certificate shall have none of the
rights of a holder of Common Stock.
SECTION 3.02. LOST, STOLEN, DESTROYED OR MUTILATED COMMON STOCK
WARRANT CERTIFICATES. Upon receipt by the Company and the Common Stock Warrant
Agent of evidence reasonably satisfactory to them of the ownership of and the
loss, theft, destruction or mutilation of any Common Stock Warrant Certificate
and of indemnity (other than in connection with any mutilated Common Stock
Warrant Certificates surrendered to the Common Stock Warrant Agent for
cancellation) reasonably satisfactory to them, the Company shall execute, and
the Common Stock Warrant Agent shall countersign and deliver, in exchange for or
in lieu of each lost, stolen, destroyed or mutilated Common Stock Warrant
Certificate, a new Common Stock Warrant Certificate evidencing a like number of
Common Stock Warrants of the same title. Upon the issuance of a new Common
Stock Warrant Certificate under this Section, the Company may require the
payment of a sum sufficient to cover any stamp or other similar tax or other
governmental charge that may be imposed in connection therewith and any other
expenses (including the fees and expenses of the Common Stock Warrant Agent) in
connection therewith. Every substitute Common Stock Warrant Certificate
executed and delivered pursuant to this Section in lieu of any lost, stolen or
destroyed Common Stock Warrant Certificate shall be at any time enforceable by
anyone, and shall be entitled to the benefits of this Agreement equally and
proportionately with any and all other Common Stock Warrant Certificates, duly
executed and delivered hereunder. The provisions of this Section are exclusive
and shall preclude (to the extent
<PAGE>
8
lawful) all other rights and remedies with respect to the replacement of lost,
stolen, destroyed or mutilated Common Stock Warrant Certificates.
SECTION 3.03. HOLDERS OF COMMON STOCK WARRANTS MAY ENFORCE
RIGHTS. Notwithstanding any of the provisions of this Agreement, any Holder
may, without the consent of the Common Stock Warrant Agent, enforce and may
institute and maintain any suit, action or proceeding against the Company
suitable to enforce, or otherwise in respect of, his right to exercise his
Common Stock Warrants as provided in the Common Stock Warrants and in this
Agreement.
SECTION 3.04. MERGER, CONSOLIDATION, SALE, TRANSFER OR
CONVEYANCE. (a) In case any of the following shall occur while any Common
Stock Warrants are outstanding: (i) any reclassification or change of the
outstanding shares of Common Stock; or (ii) any consolidation or merger to which
the Company is party (other than a consolidation or a merger in which the
Company is the continuing corporation and which does not result in any
reclassification of, or change in, the outstanding shares of Common Stock
issuable upon exercise of the Common Stock Warrants); or (iii) any sale,
conveyance or lease to another corporation of the property of the Company as an
entirety or substantially as an entirety; then the Company, or such successor or
purchasing corporation, as the case may be, shall make appropriate provision by
amendment of this Agreement or otherwise so that the Holders of the Common Stock
Warrants then outstanding shall have the right at any time thereafter, upon
exercise of such Common Stock Warrants, to purchase the kind and amount of
shares of stock and other securities and property receivable upon such a
reclassification, change, consolidation, merger, sale, conveyance or lease as
would be received by a holder of the number of shares of Common Stock issuable
upon exercise of such Common Stock Warrant immediately prior to such
reclassification, change, consolidation, merger, sale, conveyance or lease, and,
in the case of a consolidation, merger, sale, conveyance or lease, the Company
shall thereupon be relieved of any further obligation hereunder or under the
Common Stock Warrants, and the Company as the predecessor corporation may
thereupon or at any time thereafter be dissolved, wound up or liquidated. Such
successor or assuming corporation thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any of all of the
Common Stock Warrants issuable hereunder which theretofore shall not have been
signed by the Company, and may execute and deliver Common Stock in its own name,
in fulfillment of its obligations to deliver Common Stock upon exercise of the
Common Stock Warrants. All the Common Stock Warrants so issued shall in all
respects have the same legal rank and benefit under this Agreement as the Common
Stock Warrants theretofore or thereafter issued in accordance with the terms of
this Agreement as though all of such Common Stock Warrants had been issued at
the date of the execution hereof. In case of any such reclassification, change,
consolidation, merger, conveyance, transfer or lease, such changes in
phraseology and form (but not in substance) may be made in the Common Stock
Warrants thereafter to be issued as may be appropriate.
<PAGE>
9
(b) The Common Stock Warrant Agent may receive a written opinion
of legal counsel as conclusive evidence that any such merger, consolidation,
sale, transfer, conveyance or other disposition of substantially all of the
assets of the Company complies with the provisions of this Section 3.04.
SECTION 3.05. TREATMENT OF HOLDERS OF COMMON STOCK WARRANT
CERTIFICATES. (a) In the event that the Common Stock Warrants are offered
together with, and, prior to the Detachable Date, are not detachable from,
Offered Securities, the Company, the Common Stock Warrant Agent and all other
persons may, prior to such Detachable Date, treat the holder of the Offered
Security as the Holder of the Common Stock Warrant Certificates initially
attached thereto for any purpose and as the person entitled to exercise the
rights represented by the Common Stock Warrants evidenced by such Common Stock
Warrant Certificates, any notice to the contrary notwithstanding. After the
Detachable Date and prior to due presentment of a Common Stock Warrant
Certificate for registration of transfer, the Company and the Common Stock
Warrant Agent may treat the registered Holder of a Common Stock Warrant
Certificate as the absolute Holder thereof for any purpose and as the person
entitled to exercise the rights represented by the Common Stock Warrants
evidenced thereby, any notice to the contrary notwithstanding.
(b) In all other cases, the Company and the Common Stock Warrant
Agent may treat the registered Holder of a Common Stock Warrant Certificate as
the absolute Holder thereof for any purpose and as the person entitled to
exercise the rights represented by the Common Stock Warrants evidenced thereby,
any notice to the contrary notwithstanding.
ARTICLE IV
EXCHANGE AND TRANSFER OF COMMON STOCK WARRANTS
SECTION 4.01. COMMON STOCK WARRANT REGISTER; EXCHANGE AND TRANSFER
OF COMMON STOCK WARRANTS. The Common Stock Warrant Agent shall maintain, at
its corporate trust office [or at _______], a register (the "Common Stock
Warrant Register") in which, upon the issuance of Common Stock Warrants, or on
and after the Detachable Date in the case of Common Stock Warrants not
separately transferable prior thereto, and, subject to such reasonable
regulations as the Common Stock Warrant Agent may prescribe, it shall register
Common Stock Warrant Certificates and exchanges and transfers thereof. The
Common Stock Warrant Register shall be in written form or in any other form
capable of being converted into written form within a reasonable time.
Except as provided in the following sentence, upon surrender at the
corporate trust office of the Common Stock Warrant Agent [or at _______ ],
Common Stock Warrant
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10
Certificates may be exchanged for one or more other Common Stock Warrant
Certificates evidencing the same aggregate number of Common Stock Warrants of
the same title, or may be transferred in whole or in part. A Common Stock
Warrant Certificate evidencing Common Stock Warrants that are not then
transferable separately from the Offered Security with which they were issued
may be exchanged or transferred prior to its Detachable Date only together with
such Offered Security and only for the purpose of effecting, or in conjunction
with, an exchange or transfer of such Offered Security; and on or prior to the
Detachable Date, each exchange or transfer of such Offered Security on the
Security Register of the Offered Securities shall operate also to exchange or
transfer the related Common Stock Warrants. A transfer shall be registered upon
surrender of a Common Stock Warrant Certificate to the Common Stock Warrant
Agent at its corporate trust office [or at ______________________] for
transfer, properly endorsed or accompanied by appropriate instruments of
transfer and written instructions for transfer, all in form satisfactory to the
Company and the Common Stock Warrant Agent. Whenever a Common Stock Warrant
Certificate is surrendered for exchange or transfer, the Common Stock Warrant
Agent shall countersign and deliver to the person or persons entitled thereto
one or more Common Stock Warrant Certificates duly executed by the Company, as
so requested. The Common Stock Warrant Agent shall not be required to effect
any exchange or transfer which will result in the issuance of a Common Stock
Warrant Certificate evidencing a fraction of a Common Stock Warrant. All Common
Stock Warrant Certificates issued upon any exchange or transfer of a Common
Stock Warrant Certificate shall be the valid obligations of the Company,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Common Stock Warrant Certificate surrendered for such exchange
or transfer.
No service charge shall be made for any exchange or transfer of
Common Stock Warrants, 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 such exchange or transfer, in accordance with Section 2.02(f) hereof.
SECTION 4.02. TREATMENT OF HOLDERS OF COMMON STOCK WARRANTS.
Every Holder of a Common Stock Warrant, by accepting the Common Stock Warrant
Certificate evidencing the same, consents and agrees with the Company, the
Common Stock Warrant Agent and with every other Holder of Common Stock Warrants
of the same title that the Company and the Common Stock Warrant Agent may treat
the Holder of a Common Stock Warrant Certificate (or, if the Common Stock
Warrant Certificate is not then detachable, the Holder of the related Offered
Security) as the absolute owner of such Common Stock Warrant for all purposes
and as the person entitled to exercise the rights represented by such Common
Stock Warrant, any notice to the contrary notwithstanding.
SECTION 4.03. CANCELLATION OF COMMON STOCK WARRANT CERTIFICATES.
In the event that the Company shall purchase, redeem or otherwise acquire any
Common Stock
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11
Warrants after the issuance thereof, the Common Stock Warrant Certificate or
Certificates evidencing such Common Stock Warrants shall thereupon be delivered
to the Common Stock Warrant Agent and be cancelled by it. The Common Stock
Warrant Agent shall also cancel any Common Stock Warrant Certificate (including
any mutilated Common Stock Warrant Certificate) delivered to it for exercise, in
whole or in part, or for exchange or transfer. Common Stock Warrant
Certificates so cancelled shall be delivered by the Common Stock Warrant Agent
to the Company from time to time, or disposed of in accordance with the
instructions of the Company.
ARTICLE V
CONCERNING THE COMMON STOCK WARRANT AGENT
SECTION 5.01. COMMON STOCK WARRANT AGENT. The Company hereby
appoints ________ as Common Stock Warrant Agent of the Company in respect of
the Common Stock Warrants upon the terms and subject to the conditions set forth
herein; and __________________ hereby accepts such appointment. The Common
Stock Warrant Agent shall have the powers and authority granted to and conferred
upon it in the Common Stock Warrant Certificates and hereby and such further
powers and authority acceptable to it to act on behalf of the Company as the
Company may hereafter grant to or confer upon it. All of the terms and
provisions with respect to such powers and authority contained in the Common
Stock Warrant Certificates are subject to and governed by the terms and
provisions hereof.
SECTION 5.02. CONDITIONS OF COMMON STOCK WARRANT AGENT'S
OBLIGATIONS. The Common Stock Warrant Agent accepts its obligations set forth
herein upon the terms and conditions hereof, including the following, to all of
which the Company agrees and to all of which the rights hereunder of the Holders
shall be subject:
(a) COMPENSATION AND INDEMNIFICATION. The Company agrees to
promptly pay the Common Stock Warrant Agent the compensation set forth in
Exhibit A hereto and to reimburse the Common Stock Warrant Agent for
reasonable out-of-pocket expenses (including counsel fees) incurred by the
Common Stock Warrant Agent in connection with the services rendered
hereunder by the Common Stock Warrant Agent. The Company also agrees to
indemnify the Common Stock Warrant Agent for, and to hold it harmless
against, any loss, liability or expense (including the reasonable costs
and expenses of defending against any claim of liability) incurred without
negligence or bad faith on the part of the Common Stock Warrant Agent
arising out of or in connection with its appointment as Common Stock
Warrant Agent hereunder.
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12
(b) AGENT FOR THE COMPANY. In acting under this Agreement and
in connection with any Common Stock Warrant Certificate, the Common Stock
Warrant Agent is acting solely as agent of the Company and does not assume
any obligation or relationship of agency or trust for or with any Holder.
(c) COUNSEL. The Common Stock Warrant Agent may consult with
counsel satisfactory to it, and the advice of such 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 accordance with
the advice of such counsel.
(d) DOCUMENTS. The Common Stock Warrant Agent shall be
protected and shall incur no liability for or in respect of any action
taken, suffered or omitted by it in reliance upon any notice, direction,
consent, certificate, affidavit, statement or other paper or document
reasonably believed by it to be genuine and to have been presented or
signed by the proper parties.
(e) OFFICER'S CERTIFICATE. Whenever in the performance of its
duties hereunder the Common Stock Warrant Agent shall reasonably deem it
necessary that any fact or matter be proved or established by the Company
prior to taking, suffering or omitting any action hereunder, the Common
Stock Warrant Agent may (unless other evidence in respect thereof be
herein specifically prescribed), in the absence of bad faith on its part,
rely upon a certificate signed by the Chairman, the President, a Vice
President, the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary of the Company (an "Officer's Certificate") delivered
by the Company to the Common Stock Warrant Agent.
(f) ACTIONS THROUGH AGENTS. The Common Stock Warrant Agent may
execute and exercise any of the rights or powers hereby vested in it or
perform any duty hereunder either itself or by or through its attorneys or
agents, and the Common Stock Warrant Agent shall not be answerable or
accountable for any act, default, neglect or misconduct of any such
attorney or agent or for any loss to the Company resulting from such
neglect or misconduct; provided, however, that reasonable care shall have
been exercised in the selection and continued employment of such attorneys
and agents.
(g) CERTAIN TRANSACTIONS. The Common Stock Warrant Agent, and
any officer, director or employee thereof, may become the owner of, or
acquire any interest in, any Common Stock Warrant, with the same rights
that he, she or it would have if it were not the Common Stock Warrant
Agent, and, to the extent permitted by applicable law, he, she or it may
engage or be interested in any financial or other transaction with the
Company and may serve on, or as depositary, trustee or agent
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13
for, any committee or body of holders of Underlying Debt Securities or
other obligations of the Company as if it were not the Common Stock
Warrant Agent.
(h) NO LIABILITY FOR INTEREST. The Common Stock Warrant Agent
shall not be liable for interest on any monies at any time received by it
pursuant to any of the provisions of this Agreement or of the Common Stock
Warrant Certificates, except as otherwise agreed with the Company.
(i) NO LIABILITY FOR INVALIDITY. The Common Stock Warrant Agent
shall incur no liability with respect to the validity of this Agreement
(except as to the due execution hereof by the Common Stock Warrant Agent)
or any Common Stock Warrant Certificate (except as to the countersignature
thereof by the Common Stock Warrant Agent).
(j) NO RESPONSIBILITY FOR COMPANY REPRESENTATIONS. The Common
Stock Warrant Agent shall not be responsible for any of the recitals or
representations contained herein (except as to such statements or recitals
as describe the Common Stock Warrant Agent or action taken or to be taken
by it) or in any Common Stock Warrant Certificate (except as to the Common
Stock Warrant Agent's countersignature on such Common Stock Warrant
Certificate), all of which recitals and representations are made solely by
the Company.
(k) NO IMPLIED OBLIGATIONS. The Common Stock Warrant Agent
shall be obligated to perform only such duties as are specifically set
forth herein, and no other duties or obligations shall be implied. The
Common Stock Warrant Agent shall not be under any obligation to take any
action hereunder that may subject it to any expense or liability, the
payment of which within a reasonable time is not, in its reasonable
opinion, assured to it. The Common Stock Warrant Agent shall not be
accountable or under any duty or responsibility for the use by the Company
of any Common Stock Warrant Certificate countersigned by the Common Stock
Warrant Agent and delivered by it to the Company pursuant to this
Agreement or for the application by the Company of the proceeds of the
issuance or exercise of Common Stock Warrants. The Common Stock Warrant
Agent shall have no duty or responsibility in case of any default by the
Company in the performance of its covenants or agreements contained herein
or in any Common Stock Warrant Certificate or in case of the receipt of
any written demand from a Holder with respect to such default, including,
without limiting the generality of the foregoing, any duty or
responsibility to initiate or attempt to initiate any proceedings at law
or otherwise or, except as provided in Section 6.02 hereof, to make any
demand upon the Company.
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14
SECTION 5.03. COMPLIANCE WITH APPLICABLE LAWS. The Common Stock
Warrant Agent agrees to comply with all applicable federal and state laws
imposing obligations on it in respect of the services rendered by it under this
Common Stock Warrant Agreement and in connection with the Common Stock Warrants,
including (but not limited to) the provisions of United States federal income
tax laws regarding information reporting and backup withholding. The Common
Stock Warrant Agent expressly assumes all liability for its failure to comply
with any such laws imposing obligations on it, including (but not limited to)
any liability for failure to comply with any applicable provisions of United
States federal income tax laws regarding information reporting and backup
withholding.
SECTION 5.04. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) The Company agrees, for the benefit of the Holders of the Common Stock
Warrants, that there shall at all times be a Common Stock Warrant Agent
hereunder until all the Common Stock Warrants are no longer exercisable.
(b) The Common Stock Warrant Agent may at any time resign as such
agent by giving written notice to the Company of such intention on its part,
specifying the date on which its desired resignation shall become effective,
subject to the appointment of a successor Common Stock Warrant Agent and
acceptance of such appointment by such successor Common Stock Warrant Agent, as
hereinafter provided. The Common Stock Warrant Agent hereunder may be removed
at any time by the filing with it of an instrument in writing signed by or on
behalf of the Company and specifying such removal and the date when it shall
become effective. Notwithstanding the two preceding sentences, such resignation
or removal shall take effect upon the appointment by the Company, as hereinafter
provided, of a successor Common Stock Warrant Agent (which shall be a banking
institution organized under the laws of the United States of America, or one of
the states thereof and having an office or an agent's office south of Chambers
Street in the Borough of Manhattan, The City of New York) and the acceptance of
such appointment by such successor Common Stock Warrant Agent. In the event a
successor Common Stock Warrant Agent has not been appointed and has not accepted
its duties within 90 days of the Common Stock Warrant Agent's notice of
resignation, the Common Stock Warrant Agent may apply to any court of competent
jurisdiction for the designation of a successor Common Stock Warrant Agent. The
obligation of the Company under Section 5.02(a) shall continue to the extent set
forth therein notwithstanding the resignation or removal of the Common Stock
Warrant Agent.
(c) In case at any time the Common Stock Warrant Agent shall
resign, or shall be removed, or shall become incapable of acting, or shall be
adjudged bankrupt or insolvent, or shall file a petition seeking relief under
Title 11 of the United States Code, as now constituted or hereafter amended, or
under any other applicable federal or state bankruptcy or similar law, or shall
make an assignment for the benefit of its creditors, or shall consent to the
appointment of a receiver or custodian of all or any substantial part of its
property, or shall admit in writing its inability to pay or meet its debts as
they mature, or if a
<PAGE>
15
receiver or custodian for it or for all or any substantial part of its property
shall be appointed, or if an order of any court shall be entered for relief
against it under the provisions of Title 11 of the United States Code, as now
constituted or hereafter amended, or under any other applicable federal or state
bankruptcy or similar law, or if any public officer shall have taken charge or
control of the Common Stock Warrant Agent or of its property or affairs, for the
purpose of rehabilitation, conservation or liquidation, a successor Common Stock
Warrant Agent, qualified as aforesaid, shall be appointed by the Company by an
instrument in writing, filed with the successor Common Stock Warrant Agent.
Upon the appointment as aforesaid of a successor Common Stock Warrant Agent and
acceptance by the latter of such appointment, the Common Stock Warrant Agent so
superseded shall cease to be Common Stock Warrant Agent hereunder.
(d) Any successor Common Stock Warrant Agent appointed hereunder
shall execute, acknowledge and deliver to its predecessor and to the Company an
instrument accepting such appointment hereunder, and thereupon such successor
Common Stock Warrant Agent, without any further act, deed or conveyance, shall
become vested with all the authority, rights, powers, trusts, immunities, duties
and obligations of such predecessor with like effect as if originally named as
Common Stock Warrant Agent hereunder, and such predecessor, upon payment of its
charges and disbursements then unpaid, shall thereupon become obligated to
transfer, deliver and pay over, and such successor Common Stock Warrant Agent
shall be entitled to receive all moneys, securities and other property on
deposit with or held by such predecessor, as Common Stock Warrant Agent
hereunder.
(e) The Company shall cause notice of the appointment of any
successor Common Stock Warrant Agent to be mailed by first class mail, postage
prepaid, to each Holder at its address appearing on the Common Stock Warrant
Register. Such notice shall set forth the name and address of the successor
Common Stock Warrant Agent. Failure to give any notice provided for in this
Section 5.04(e), or any defect therein, shall not, however, affect the legality
or validity of the appointment of the successor Common Stock Warrant Agent.
(f) Any corporation into which the Common Stock Warrant Agent
hereunder may be merged or converted or any corporation with which the Common
Stock Warrant Agent may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Common Stock Warrant Agent
shall be a party, or any corporation to which the Common Stock Warrant Agent
shall sell or otherwise transfer all or substantially all of the assets and
business of the Common Stock Warrant Agent, provided that it shall be qualified
as aforesaid, shall be the successor Common Stock Warrant Agent under this
Agreement without the execution or filing of any paper or any further act on the
part of any of the parties hereto.
<PAGE>
16
ARTICLE VI
MISCELLANEOUS
SECTION 6.01. SUPPLEMENTS AND AMENDMENTS. (a) This Agreement
and the Common Stock Warrants may be supplemented or amended by the Company and
the Common Stock Warrant Agent, without the consent of the Holders of Common
Stock Warrants, for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective or inconsistent provision contained
herein or therein or in any other manner which the Company may deem to be
necessary or desirable and which will not materially adversely affect the
interests of the Holders of the Common Stock Warrants. Every Holder of Common
Stock Warrants, whether issued before or after any such supplement or amendment,
shall be bound thereby. Promptly after the effectiveness of any supplement or
amendment that affects the interests of the Holders, the Company shall give
notice thereof, as provided in Section 5.04(e) hereof, to the Holders affected
thereby, setting forth in general terms the substance of such supplement or
amendment.
(b) The Company and the Common Stock Warrant Agent may modify or
amend this Agreement and the Common Stock Warrant Certificates with the consent
of the Holders of not fewer than a majority in number of the then outstanding
unexercised Common Stock Warrants affected by such modification or amendment,
for any purpose; PROVIDED, HOWEVER, that no such modification or amendment
that shortens the period of time during which the Common Stock Warrants may be
exercised, or otherwise materially and adversely affects the exercise rights of
the Holders or reduces the percentage of Holders of outstanding Common Stock
Warrants the consent of which is required for modification or amendment of this
Agreement or the Common Stock Warrants, may be made without the consent of each
Holder affected thereby.
SECTION 6.02. NOTICES AND DEMANDS TO THE COMPANY AND COMMON STOCK
WARRANT AGENT. If the Common Stock Warrant Agent shall receive any notice or
demand addressed to the Company by any Holder pursuant to the provisions of the
Common Stock Warrant Certificates, the Common Stock Warrant Agent shall promptly
forward such notice or demand to the Company.
SECTION 6.03. ADDRESSES FOR NOTICES. Any communications from the
Company to the Common Stock Warrant Agent with respect to this Agreement shall
be addressed to [name of Common Stock Warrant Agent], [__________________, New
York, New York ________], Attention: [Corporate Trust Department]; any
communications from the Common Stock Warrant Agent to the Company with respect
to this Agreement shall be addressed to Deere & Company, John Deere Road,
Moline, Illinois 61265-8098, Attention: [Treasurer (with a copy to the
Secretary)]; or such other addresses as shall be specified in writing by the
Common Stock Warrant Agent or by the Company.
<PAGE>
17
SECTION 6.04. GOVERNING LAW. THIS AGREEMENT AND THE COMMON
STOCK WARRANTS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY
WITHIN SUCH STATE.
SECTION 6.05. GOVERNMENTAL APPROVALS. The Company will from time
to time use all reasonable efforts to obtain and keep effective any and all
permits, consents and approvals of governmental agencies and authorities and the
national securities exchange on which the Common Stock Warrants may be listed or
authorized for trading and to make all filings under the United States federal
and state laws, which may be or become requisite in connection with the
issuance, sale, trading, transfer or delivery of the Common Stock Warrants, and
the exercise of the Common Stock Warrants.
SECTION 6.06. PERSONS HAVING RIGHTS UNDER COMMON STOCK WARRANT
AGREEMENT. Nothing in this Agreement expressed or implied and nothing that may
be inferred from any of the provisions hereof is intended, or shall be
construed, to confer upon, or give to, any person or corporation other than the
Company, the Common Stock Warrant Agent and the Holders any right, remedy or
claim under or by reason of this Agreement or of any covenant, condition,
stipulation, promise or agreement hereof; and all covenants, conditions,
stipulations, promises and agreements in this Agreement contained shall be for
the sole and exclusive benefit of the Company and the Common Stock Warrant Agent
and their successors and of the Holders of Common Stock Warrant Certificates.
SECTION 6.07. DELIVERY OF PROSPECTUS. The Company will furnish
to the Common Stock Warrant Agent sufficient copies of a prospectus or
prospectuses relating to the Common Stock deliverable upon exercise of any
outstanding Common Stock Warrants (each a "Prospectus"), and the Common Stock
Warrant, prior to or concurrently with the delivery of the Common Stock issued
upon the exercise thereof, a copy of the Prospectus relating to such Common
Stock.
SECTION 6.08. HEADINGS. The descriptive headings of the several
Articles and Sections and the Table of Contents of this Agreement are for
convenience only and shall not control or affect the meaning or construction of
any of the provisions hereof.
SECTION 6.09. COUNTERPARTS. This Agreement may be executed by
the parties hereto in any number of counterparts, each of which when so executed
and delivered shall be deemed to be an original; but all such counterparts shall
together constitute but one and the same instrument.
SECTION 6.10. INSPECTION OF AGREEMENT. A copy of this Agreement
shall be available during normal business hours at the principal corporate trust
office of the Common Stock Warrant Agent, for inspection by any Holder of Common
Stock Warrants. The
<PAGE>
18
Common Stock Warrant Agent may require such Holder to submit its Common Stock
Warrant Certificate for inspection prior to making such copy available.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
DEERE & COMPANY
[Seal]
By
-------------------------------
Attest: NAME AND TITLE:
- -----------------------------------
NAME AND TITLE:
------------------------------
[Seal]
Attest:
By
- ----------------------------------- --------------------------------
NAME AND TITLE: NAME AND TITLE:
<PAGE>
Exhibit A
to
Common Stock Warrant Agreement
dated as of , 19
------------- ---
[Compensation of Common Stock Warrant Agent]
<PAGE>
EXHIBIT 4.12
- -------------------------------------------------------------------------------
--------------------------
DEPOSIT AGREEMENT
--------------------------
Dated as of _______________________, 19__
among
DEERE & COMPANY
and
[NAME OF DEPOSITARY], as Depositary
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
- -------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
PAGE
----
Parties......................................................................1
Recitals ....................................................................1
ARTICLE I
DEFINITIONS
SECTION 1.01. "Agent".................................................. 1
SECTION 1.02. "Certificate of Designations" ........................... 1
SECTION 1.03. "Certificate of Incorporation"........................... 1
SECTION 1.04. "Common Stock"........................................... 2
SECTION 1.05. "Company" ............................................... 2
SECTION 1.06. "Corporate Office"....................................... 2
SECTION 1.07. "Deposit Agreement"...................................... 2
SECTION 1.08. "Depositary" ............................................ 2
SECTION 1.09. "Depositary Share"....................................... 2
SECTION 1.10. "Holder"................................................. 2
SECTION 1.11. "Preferred Stock" ....................................... 2
SECTION 1.12. "Receipt"................................................ 2
SECTION 1.13. "Registrar".............................................. 3
SECTION 1.14. "Securities Act"......................................... 3
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transferability of Receipts..................... 3
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery
of Receipts in Respect Thereof........................... 4
SECTION 2.03. Optional Redemption of Preferred Stock................... 5
SECTION 2.04. Transfers of Receipts.................................... 7
SECTION 2.05. Combinations and Split-ups of Receipts................... 7
SECTION 2.06. Surrender of Receipts and Withdrawal of
Preferred Stock......................................... 7
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
Split-up, Combination, Surrender and Exchange
of Receipts.............................................. 8
SECTION 2.08. Lost Receipts, Etc....................................... 9
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts..... 9
SECTION 2.10. Conversion or Exchange of Preferred Stock into
Common Stock or Other Securities......................... 9
<PAGE>
ii
PAGE
----
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information........ 12
SECTION 3.02. Payment of Fees and Expenses............................. 13
SECTION 3.03. Representations and Warranties as to Preferred Stock..... 13
SECTION 3.04. Representation and Warranty as to Receipts............... 13
SECTION 3.05. Covenants and Representation and Warranty as to
Common Stock............................................. 14
ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. Cash Distributions....................................... 14
SECTION 4.02. Distributions Other than Cash. .......................... 14
SECTION 4.03. Subscription Rights, Preferences or Privileges........... 15
SECTION 4.04. Notice of Dividends; Fixing of Record Date for
Holders of Receipts...................................... 16
SECTION 4.05. Voting Rights............................................ 16
SECTION 4.06. Changes Affecting Preferred Stock and
Reclassification, Recapitalizations, Etc................. 17
SECTION 4.07. Inspection of Reports.................................... 17
SECTION 4.08. Lists of Receipt Holders................................. 18
SECTION 4.09. Tax and Regulatory Compliance............................ 18
SECTION 4.10. Withholding.............................................. 18
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer
Books by the Depositary and the Registrar............... 18
SECTION 5.02. Prevention or Delay in Performance by the Depositary,
Any Agent, the Registrar or the Company................. 19
SECTION 5.03. Obligations of the Depositary, Any Agent, the
Registrar and the Company............................... 19
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary................................. 21
SECTION 5.05. Corporate Notices and Reports........................... 21
SECTION 5.06. Indemnification by the Company.......................... 22
SECTION 5.07. Fees, Charges and Expenses.............................. 22
<PAGE>
iii
PAGE
----
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment.................................................23
SECTION 6.02. Termination.............................................. 23
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts............................................. 24
SECTION 7.02. Exclusive Benefits of Parties............................ 25
SECTION 7.03. Invalidity of Provisions................................. 25
SECTION 7.04. Notices.................................................. 25
SECTION 7.05. Holders of Receipts Are Parties. ........................ 26
SECTION 7.06. Governing Law............................................ 26
SECTION 7.07. Inspection of Deposit Agreement and Certificate of
Designations............................................. 26
SECTION 7.08. Headings. ............................................... 26
<PAGE>
DEPOSIT AGREEMENT
DEPOSIT AGREEMENT, dated as of ______, 19__, among DEERE &
COMPANY, a Delaware corporation, [NAME OF BANK], [___________________________],
as Depositary, and all Holders from time to time of the Receipts issued
hereunder (as hereinafter defined).
WITNESSETH:
WHEREAS, it is desired to provide, as hereinafter set forth in this
Deposit Agreement, for the deposit by the Company of shares of the Company's
Preferred Stock (as hereinafter defined) with the Depositary for the purposes
set forth in this Deposit Agreement and for the issuance hereunder of the
Receipts evidencing Depositary Shares representing an interest in the Preferred
Stock deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit
A annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided in this Deposit Agreement;
NOW, THEREFORE, in consideration of the premises contained herein,
it is agreed by and among the parties hereto as follows:
ARTICLE I
DEFINITIONS
The following definitions shall apply to the respective terms (in
the singular and plural forms of such terms) used in this Deposit Agreement and
the Receipts:
SECTION 1.01. "AGENT" shall mean any agent of the Depositary
appointed by the Depositary from time to time to act in any respect for the
Depositary for purposes of this Deposit Agreement and the appointment of which
may be modified or terminated by the Depositary. The Depositary will notify the
Company of any such action.
SECTION 1.02. "CERTIFICATE OF DESIGNATIONS" shall mean the
Certificate of Designations filed with the Secretary of State of the State of
Delaware establishing the series of Preferred Stock.
SECTION 1.03. "CERTIFICATE OF INCORPORATION" shall mean the
Certificate of Incorporation, as amended and/or restated from time to time, of
the Company.
<PAGE>
2
SECTION 1.04. "COMMON STOCK" shall mean shares of the Company's
common stock, $________ par value per share.
SECTION 1.05. "COMPANY" shall mean DEERE & COMPANY, a Delaware
corporation, and its successors.
SECTION 1.06. "CORPORATE OFFICE" shall mean the corporate office
of the Depositary in the Borough of Manhattan, The City of New York, at which at
any particular time its business in respect of matters governed by this Deposit
Agreement shall be administered, which at the date of this Deposit Agreement is
located at _________________________ , New York, New York ________.
SECTION 1.07. "DEPOSIT AGREEMENT" shall mean this agreement, as
the same may be amended, modified or supplemented from time to time.
SECTION 1.08. "DEPOSITARY" shall mean [NAME OF BANK], a company
having its principal office in the United States and having a combined capital
and surplus of at least $50,000,000, and any successor as depositary hereunder.
SECTION 1.09. "DEPOSITARY SHARE" shall mean an interest in one ___
of a share of Preferred Stock deposited by the Company with the Depositary
hereunder and the same proportionate interest in any and all other property
received by the Depositary in respect of such share of Preferred Stock and held
under this Deposit Agreement, all as evidenced by the Receipts issued hereunder.
Subject to the terms of this Deposit Agreement, each owner of a Depositary Share
is entitled, proportionately, to all the rights, preferences and privileges of
the Preferred Stock represented by such Depositary Share, including any and all
dividend, voting, redemption, conversion, exchange and liquidation rights
provided for in the Certificate of Designations.
SECTION 1.10. "HOLDER", as applied to a Receipt, shall mean the
person in whose name an outstanding Receipt is registered on the books
maintained by the Depositary for such purpose, and such person's successors.
SECTION 1.11. "PREFERRED STOCK" shall mean shares of the
Company's Preferred Stock Series _______, as specified in the Certificate of
Designations, $____ par value per share.
SECTION 1.12. "RECEIPT" shall mean a depositary receipt issued
hereunder to evidence one or more Depositary Shares, whether in definitive or
temporary form, substantially in the form set forth as Exhibit A hereto.
<PAGE>
3
SECTION 1.13. "REGISTRAR" shall mean _________ or any bank or trust
company appointed to register ownership and transfers of Receipts as herein
provided.
SECTION 1.14. "SECURITIES ACT" shall mean the Securities Act of
1933, as amended.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER,
SURRENDER AND REDEMPTION OF RECEIPTS
SECTION 2.01. FORM AND TRANSFERABILITY OF RECEIPTS. Definitive
Receipts shall be engraved, printed or lithographed, with steel-engraved borders
and underlying tint, and shall be substantially in the form set forth in Exhibit
A annexed to this Deposit Agreement, with appropriate insertions, modifications
and omissions, as hereinafter provided. Pending the preparation of definitive
Receipts, the Depositary, upon the written order of the Company, delivered in
compliance with Section 2.02, shall execute and deliver temporary Receipts,
which may be printed, lithographed, typewritten, reproduced or otherwise,
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at the Corporate Office or such other office or offices, if
any, as the Depositary may designate, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Receipts, the Depositary
shall execute and deliver in exchange therefor definitive Receipts representing
the same number of Depositary Shares represented by the surrendered temporary
Receipt or Receipts. Such exchange shall be made at the Company's expense and
without any charge therefor. Until so exchanged, the temporary Receipts shall
in all respects be entitled to the same benefits under this Agreement, and with
respect to the Preferred Stock, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature
of a duly authorized signatory of the Depositary, PROVIDED that such signature
may be a facsimile if a Registrar (other than the Depositary) shall have
countersigned the Receipts by manual signature of a duly authorized signatory of
the Registrar. No Receipt shall be entitled to any benefits under this Deposit
Agreement or be valid or obligatory for any purpose unless it shall have been
executed as provided in the preceding sentence. The Depositary shall record on
its books each Receipt executed as provided above and delivered as hereinafter
provided.
<PAGE>
4
Except as the Depositary may otherwise determine, Receipts shall be
in denominations of any number of whole Depositary Shares. All Receipts shall
be dated the date of their issuance.
Receipts may be endorsed with or have incorporated in the text
thereof such legends or recitals or changes not inconsistent with the provisions
of this Deposit Agreement as may be required by the Depositary or required to
comply with any applicable law or regulation or with the rules and regulations
of any securities exchange upon which the Preferred Stock, the Depositary Shares
or the Receipts may be listed or to conform with any usage with respect thereto,
or to indicate any special limitations or restrictions to which any particular
Receipts are subject.
Title to any Receipt (and to the Depositary Shares evidenced by such
Receipt) that is properly endorsed or accompanied by a properly executed
instrument of transfer or endorsement shall be transferable by delivery with the
same effect as in the case of a negotiable instrument; PROVIDED, HOWEVER,
that until a Receipt shall be transferred on the books of the Depositary as
provided in Section 2.04, the Depositary may, notwithstanding any notice to the
contrary, treat the Holder thereof at such time as the absolute owner thereof
for the purpose of determining the person entitled to receive dividends and
other distributions and notices provided for in this Deposit Agreement and for
all other purposes.
SECTION 2.02. DEPOSIT OF PREFERRED STOCK; EXECUTION AND DELIVERY
OF RECEIPTS IN RESPECT THEREOF. Subject to the terms and conditions of this
Deposit Agreement, the Company may from time to time deposit Preferred Stock
under this Deposit Agreement by delivery to the Depositary of a certificate or
certificates for the Preferred Stock to be deposited, properly endorsed or
accompanied, if required by the Depositary, by a duly executed instrument of
transfer or endorsement, in form satisfactory to the Depositary, together with
(i) all such certifications as may be required by the Depositary in accordance
with the provisions of this Deposit Agreement and (ii) a written order of the
Company directing the Depositary to execute and deliver to or upon the written
order of the person or persons stated in such order a Receipt or Receipts for
the number of Depositary Shares representing such deposited Preferred Stock.
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock to be deposited hereunder, together with the other documents
specified above, the Depositary shall, as soon as transfer and registration can
be accomplished, present such certificate or certificates to the registrar and
transfer agent of the Preferred Stock for transfer and registration in the name
of the Depositary or its nominee of the Preferred Stock being deposited.
Deposited Preferred Stock shall be held by the Depositary in an account to be
established by the Depositary at the Corporate Office or at such other office as
the Depositary shall determine.
<PAGE>
5
Upon receipt by the Depositary of a certificate or certificates for
Preferred Stock to be deposited hereunder, together with the other documents
specified above, and upon registration of the Preferred Stock on the books of
the Company in the name of the Depositary or its nominee, the Depositary,
subject to the terms and conditions of this Deposit Agreement, shall execute and
deliver to or upon the order of the person or persons named in the written order
delivered to the Depositary referred to in the first paragraph of this Section
2.02, a Receipt or Receipts for the number of whole Depositary Shares
representing the Preferred Stock so deposited, registered in such name or names
as may be requested by such person or persons. The Depositary shall execute and
deliver such Receipt or Receipts at the Corporate Office, except that, at the
request, risk and expense of any person requesting such delivery, such delivery
may be made at such other place as may be designated by such person. In each
case, delivery will be made only upon payment to the Depositary of all taxes and
other governmental charges and any fees payable in connection with such deposit
and the transfer of the deposited Preferred Stock.
Other than in the case of splits, combinations or other
reclassification affecting the Preferred Stock, or in the case of dividends or
other distributions of Preferred Stock, if any, there shall be deposited
hereunder not more than the number of shares constituting the Preferred Stock
as set forth in the Certificate of Designations, as it may be amended.
The Company shall deliver to the Depositary from time to time such
quantities of Receipts as the Depositary may request to enable the Depositary to
perform its obligations under this Deposit Agreement.
SECTION 2.03. OPTIONAL REDEMPTION OF PREFERRED STOCK. If the
Certificate of Designations provides for redemption of the Preferred Stock at
the option of the Company, the Company (unless otherwise agreed in writing with
the Depositary), whenever it elects to redeem shares of Preferred Stock, shall
give the Depositary not less than [45] days' prior written notice of the date of
such proposed redemption and of the number of shares of Preferred Stock held by
the Depositary to be redeemed and the applicable redemption price, as set forth
in the Certificate of Designations, including the amount, if any, of accrued and
unpaid dividends to the date of such redemption. Provided that the Company
shall have paid such redemption price in full to the Depositary on or prior to
the date of such redemption, the Depositary shall redeem (using the proceeds of
such redemption) the number of Depositary Shares representing such Preferred
Stock so redeemed by the Company. Not less than 30 nor more than 60 days prior
to the date fixed for redemption of such Preferred Stock and Depositary Shares
(the "redemption date"), the Depositary shall mail, first-class postage prepaid,
notice of the redemption of Preferred Stock and the proposed simultaneous
redemption of the Depositary Shares representing the Preferred Stock to be
redeemed, to the Holders on the record date fixed pursuant to Section 4.04
hereof, Notice shall be mailed to Holders of the Receipts evidencing the
Depositary Shares to be so redeemed, at the addresses of such Holders as the
same appear on the
<PAGE>
6
records of the Depositary; but neither failure to mail any such notice to one or
more such Holders nor any defect in any notice shall affect the sufficiency of
the redemption as to other Holders. The Company shall provide the Depositary
with a form for such notice, and each such notice shall state: (i) the record
date for the purposes of such redemption; (ii) the redemption date; (iii) the
number of Depositary Shares to be redeemed; (iv) if fewer than all the
Depositary Shares held by any Holder are to be redeemed, the number of such
Depositary Shares held by such Holder to be so redeemed; (v) the redemption
price; (vi) the place or places where Receipts evidencing Depositary Shares to
be redeemed are to be surrendered for payment of the redemption price; (vii)
that, from and after the redemption date, dividends in respect of the Preferred
Stock represented by the Depositary Shares to be redeemed will cease to accrue
and all other rights with respect to such Depositary Shares will cease and
terminate; and (viii) in the event that the Depositary Shares evidence Preferred
Stock convertible into or exchangeable for Common Stock or other securities of
the Company, that all conversion and exchange rights, as the case may be, in
respect of such Preferred Stock will terminate at the close of business on the
last business day preceding such redemption date. If fewer than all the
outstanding Depositary Shares are to be redeemed, the Depositary Shares to be
redeemed shall be selected by lot or pro rata (as nearly as may be) or in any
other equitable manner, in each case as may be determined by the Company.
From and after the redemption date (unless the Company shall have
failed to redeem the shares as set forth in the notice mailed by the Depositary
in accordance with the preceding paragraph), (i) all dividends in respect of the
shares of Preferred Stock called for redemption shall cease to accrue; (ii) in
the event that the Depositary Shares evidence Preferred Stock convertible into
or exchangeable for Common Stock or other securities of the Company, the
conversion and exchange rights, as the case may be, in respect of such Preferred
Stock shall terminate; (iii) the Depositary Shares called for redemption shall
be deemed no longer to be outstanding; and (iv) all rights of the Holders of
Receipts evidencing such Depositary Shares (except the right to receive the
redemption price) shall cease and terminate. Upon surrender in accordance with
said notice of the Receipts evidencing such Depositary Shares (properly endorsed
or assigned for transfer, if the Depositary shall so require), such Depositary
Shares shall be redeemed at a redemption price per Depositary Share equal to
[specify fraction] of the redemption price per share paid in respect of the
shares of Preferred Stock pursuant to the Certificate of Designations plus any
other money and other property represented by each such Depositary Share. The
foregoing shall be further subject to the terms and conditions of the
Certificate of Designations.
If fewer than all of the Depositary Shares evidenced by a Receipt
are called for redemption, the Depositary will deliver to the Holder of such
Receipt upon its surrender to the Depositary, together with payment of the
redemption price for the Depositary Shares called for redemption, a new Receipt
evidencing the Depositary Shares evidenced by such prior Receipt and not called
for redemption.
<PAGE>
7
The Depositary shall not be required (a) to issue, transfer or
exchange any Receipts for a period beginning at the opening of business 15 days
next preceding any selection of Depositary Shares and Preferred Stock to be
redeemed and ending at the close of business on the day of the mailing of notice
of redemption of Depositary Shares or (b) to transfer or exchange for another
Receipt any Receipt evidencing Depositary Shares called or being called for
redemption in whole or in part, except as provided in the preceding paragraph of
this Section 2.03.
SECTION 2.04. TRANSFERS OF RECEIPTS. Subject to the terms and
conditions of this Deposit Agreement, the Depositary shall register on its books
transfers of Receipts upon any surrender thereof by the Holder in person or by a
duly authorized attorney, properly endorsed or accompanied by a properly
executed instrument of transfer or endorsement, together with evidence of the
payment of any transfer taxes and other governmental charges as may be required
by law. Upon such surrender, the Depositary shall execute a new Receipt or
Receipts and deliver the same to or upon the order of the person entitled
thereto evidencing the same aggregate number of Depositary Shares evidenced by
the Receipt or Receipts surrendered.
SECTION 2.05. COMBINATIONS AND SPLIT-UPS OF RECEIPTS. Upon
surrender by a Holder of a Receipt or Receipts at the Corporate Office or such
other office as the Depositary may designate for the purpose of effecting a
split-up or combination of Receipts, subject to the terms and conditions of this
Deposit Agreement, the Depositary shall execute and deliver a new Receipt or
Receipts in the authorized denominations requested evidencing the same aggregate
number of Depositary Shares evidenced by the Receipt or Receipts surrendered;
PROVIDED, HOWEVER, that the Depositary shall not issue any Receipt
evidencing a fractional Depositary Share.
SECTION 2.06. SURRENDER OF RECEIPTS AND WITHDRAWAL OF PREFERRED
STOCK. Any Holder of a Receipt or Receipts may withdraw any or all of the
Preferred Stock represented by the Depositary Shares evidenced by such Receipts
and all money and other property, if any, represented by such Depositary Shares
by surrendering such Receipt or Receipts at the Corporate Office or at such
other office as the Depositary may designate for such withdrawals; PROVIDED
that a Holder may not withdraw Preferred Stock (or money and other property, if
any, represented thereby) which has previously been called for redemption.
Thereafter, without unreasonable delay, the Depositary shall deliver to such
Holder, or to the person or persons designated by such Holder as hereinafter
provided, the number of whole shares of Preferred Stock and all such money and
other property, if any, represented by the Depositary Shares evidenced by the
Receipt or Receipts so surrendered for withdrawal, but holders of such whole
shares of Preferred Stock will not be entitled to deposit such Preferred Stock
hereunder or to receive Depositary Shares therefor. If the Receipt or Receipts
delivered by the Holder to the Depositary in connection with such withdrawal
shall evidence a number of Depositary Shares in excess of the number of whole
<PAGE>
8
Depositary Shares representing the number of whole shares of Preferred Stock to
be withdrawn, the Depositary shall at the same time, in addition to such number
of whole shares of Preferred Stock and such money and other property, if any, to
be withdrawn, deliver to such Holder, or (subject to Sections 2.04 and 2.05)
upon his order, a new Receipt or Receipts evidencing such excess number of whole
Depositary Shares. In no event will fractional shares of Preferred Stock or
Receipts evidencing fractional Depositary Shares be distributed or issued by the
Depositary. Delivery of the Preferred Stock and such money and other property
being withdrawn may be made by the delivery of such certificates, documents of
title and other instruments as the Depositary may deem appropriate, which, if
required by the Depositary, shall be properly endorsed or accompanied by proper
instruments of transfer.
If the Preferred Stock and the money and other property being
withdrawn are to be delivered to a person or persons other than the Holder of
the Receipt or Receipts being surrendered for withdrawal of Preferred Stock,
such Holder shall execute and deliver to the Depositary a written order so
directing the Depositary, and the Depositary may require that the Receipt or
Receipts surrendered by such Holder for withdrawal of such shares of Preferred
Stock be properly endorsed in blank or accompanied by a properly executed
instrument of transfer or endorsement in blank; PROVIDED that the Holder of
such Receipt shall pay the amount of any tax or other governmental charge due.
The Depositary shall deliver the Preferred Stock and the money and
other property, if any, represented by the Depositary Shares evidenced by
Receipts surrendered for withdrawal at the Corporate Office, except that, at the
request, risk and expense of the Holder surrendering such Receipt or Receipts
and for the account of the Holder thereof, such delivery may be made at such
other place as may be designated by such Holder.
SECTION 2.07. LIMITATIONS ON EXECUTION AND DELIVERY, TRANSFER,
SPLIT-UP, COMBINATION, SURRENDER AND EXCHANGE OF RECEIPTS. As a condition
precedent to the execution and delivery, transfer, split-up, combination,
surrender or exchange of any Receipt or, in the event that the Depositary Shares
evidence Preferred Stock convertible into or exchangeable for Common Stock or
other securities of the Company, to the exercise of any conversion or exchange
right referred to in Section 2.10, the Depositary, any Agent or the Company may
require any or all of the following: (i) payment to it of a sum sufficient for
the payment (or, in the event that the Depositary or the Company shall have made
such payment, the reimbursement) of any tax or other similar governmental charge
with respect thereto (including any such tax or charge with respect to the
Preferred Stock being deposited or withdrawn; PROVIDED, HOWEVER, that, in
the event that the Depositary Shares evidence Preferred Stock convertible into
or exchangeable for Common Stock or other securities of the Company, the Company
shall pay any documentary, stamp or similar issue or transfer tax or other
similar governmental charge due on the issuance of the Common Stock or other
securities upon such conversion or exchange; and PROVIDED FURTHER that the
Holder of such Receipt shall pay the amount of any tax or other governmental
charge resulting from the
<PAGE>
9
issuance of such shares of Common Stock or such other securities in a name other
than that of such Holder); (ii) the production of proof satisfactory to it as to
the identity and genuineness of any signature (or the authority of any
signature); and (iii) compliance with such regulations, if any, as the
Depositary or the Company may establish consistent with the provisions of this
Deposit Agreement.
The delivery of Receipts against Preferred Stock may be suspended,
the transfer of Receipts may be refused, the transfer, split-up, combination,
surrender or exchange of outstanding Receipts may be suspended and, in the event
that the Depositary Shares evidence Preferred Stock convertible into or
exchangeable for Common Stock or other securities of the Company, the exercise
of any conversion or exchange right referred to in Section 2.10 may be suspended
(i) during any period when the register of holders of the Preferred Stock is
closed or (ii) if any such action is deemed necessary or advisable by the
Depositary or any Agent at any time or from time to time because of any
requirement of law or of any government or governmental body or commission, or
under any provision of this Deposit Agreement. Without limitation of the
foregoing, the Depositary shall not knowingly accept for deposit under this
Deposit Agreement any shares of Preferred Stock that are currently required to
be registered under the Securities Act, unless the Company shall deliver to the
Depositary written notice that, at the time of deposit, a registration statement
under the Securities Act is in effect as to such shares of Preferred Stock.
SECTION 2.08. LOST RECEIPTS, ETC. In case any Receipt shall be
mutilated or destroyed or lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, PROVIDED that the Holder thereof
provides the Depositary with (i) evidence satisfactory to the Depositary of such
destruction, loss or theft of such Receipt, of the authenticity and of his
ownership thereof and (ii) indemnification satisfactory to the Depositary and
the Company.
SECTION 2.09. CANCELLATION AND DESTRUCTION OF SURRENDERED
RECEIPTS. All Receipts surrendered to the Depositary or any Depositary's Agent
shall be cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy such cancelled Receipts.
SECTION 2.10. CONVERSION OR EXCHANGE OF PREFERRED STOCK INTO
COMMON STOCK OR OTHER SECURITIES. It is understood and agreed that the
Depositary Shares are not convertible into or exchangeable for Common Stock of
the Company or any other securities or property of the Company. Nevertheless,
as a matter of convenience, in the event that the Depositary Shares evidence
Preferred Stock convertible into or exchangeable for Common Stock or other
securities of the Company, the Company hereby agrees to cause the Depositary to
accept (or to cause its conversion agent or exchange agent, as the case may be,
to accept) the delivery of Receipts for the purpose of effecting conversions or
exchanges of
<PAGE>
10
the Preferred Stock utilizing the same procedures as those provided for delivery
of Preferred Stock certificates to effect such conversions or exchanges in
accordance with the terms and conditions of the Certificate of Designations;
PROVIDED, HOWEVER, that only whole Depositary Shares may be so submitted for
conversion or exchange.
Receipts may be surrendered with written instructions to the
Depositary to instruct the Company to cause the conversion or exchange of any
specified number of whole or fractional shares of Preferred Stock, convertible
into or exchangeable for Common Stock or other securities of the Company, that
is represented by the Depositary Shares evidenced by such Receipts into the
number of whole shares of Common Stock or whole number of other securities of
the Company obtained by dividing the aggregate liquidation preference of such
Depositary Shares by the Conversion Price (as such term is defined in the
Certificate of Designations) or exchange ratio then in effect, as such
Conversion Price or exchange ratio may be adjusted by the Company from time to
time as provided in the Certificate of Designations. Subject to the terms and
conditions of this Deposit Agreement and the Certificate of Designations, a
Holder of a Receipt or Receipts evidencing Depositary Shares representing whole
or fractional shares of Preferred Stock may surrender such Receipt or Receipts
to the Depositary at the Corporate Office or to such office or to such
Depositary's Agents as the Depositary may designate for such purpose, together
with (i) a notice of conversion or exchange thereof, as the case may be, duly
completed and executed (a "Notice of Conversion/Exchange"), and (ii) any payment
in respect of dividends required by the fifth paragraph of this Section 2.10,
thereby directing the Depositary to instruct the Company to cause the conversion
or exchange, as the case may be, of the number of shares or fractions thereof of
underlying Preferred Stock specified in such Notice of Conversion/Exchange into
whole shares of Common Stock or a whole number of other securities of the
Company. In the event that a Holder delivers to the Depositary for conversion
or exchange a Receipt or Receipts which in the aggregate are convertible into or
exchangeable for less than (i) one whole share of Common Stock or any number of
whole shares of Common Stock plus an excess constituting less than one whole
share of Common Stock or (ii) one of such securities or any whole number of such
securities plus an excess constituting less than one security, the Holder shall
receive payment in lieu of such fractional shares of Common Stock or fractional
number of such securities otherwise issuable in accordance with the last
paragraph of this Section 2.10. If more than one Receipt shall be delivered for
conversion or exchange, as the case may be, at one time by the same Holder, the
number of whole shares of Common Stock or the whole number of such securities
issuable upon conversion or exchange thereof, as the case may be, shall be
computed on the basis of the aggregate number of Receipts so delivered.
Upon receipt by the Depositary of one or more Receipts, together
with a duly completed and executed Notice of Conversion/Exchange, the Depositary
shall, on the date of receipt of such Notice of Conversion/Exchange, instruct
the Company (i) to cause the conversion or exchange, as the case may be, of the
Depositary Shares evidenced by the
<PAGE>
11
Receipts so surrendered for conversion or exchange as specified in the Notice of
Conversion/Exchange and (ii) to cause the delivery to the Holder or Holders of
such Receipts of a certificate or certificates evidencing the number of whole
shares of Common Stock or the whole number of such securities and the amount of
money, if any, to be delivered to the Holders of Receipts surrendered for
conversion or exchange in payment of any fractional shares of Common Stock or of
any fractional number of such securities otherwise issuable, as the case may be.
The Company shall, as promptly as practicable after receipt thereof, cause the
delivery to such Holder or Holders of (i) a certificate or certificates
evidencing the number of whole shares of Common Stock or the whole number of
such securities into or for which the Preferred Stock represented by the
Depositary Shares evidenced by such Receipt or Receipts has been converted or
exchanged, as the case may be, and (ii) any money or other property to which the
Holder or Holders are entitled. The person or persons in whose name or names
any certificate or certificates for shares of Common Stock or for such
securities shall be issuable upon such conversion or exchange, as the case may
be, shall be deemed to have become the holder or holders of record of the shares
or securities represented thereby at the close of business on the date such
Receipt or Receipts shall have been surrendered to and a Notice of
Conversion/Exchange received by the Depositary, unless the stock transfer books
of the Company shall be closed on that date, in which event such person or
persons shall be deemed to have become such holder or holders of record on the
next succeeding day on which such stock transfer books are open. Upon such
conversion or exchange, the Depositary (i) shall deliver to the Holder a Receipt
evidencing the number of Depositary Shares, if any, which such Holder has
elected not to convert or exchange in excess of the number of Depositary Shares
representing Preferred Stock which has been so converted or exchanged, as the
case may be, (ii) shall cancel the Depositary Shares evidenced by Receipts
surrendered for conversion or exchange, as the case may be, and (iii) shall
deliver for cancellation to the transfer agent for the Preferred Stock the
shares of Preferred Stock represented by the Depositary Shares evidenced by the
Receipts so surrendered and so converted or exchanged, as the case may be.
If any Preferred Stock convertible into or exchangeable for Common
Stock or other securities of the Company shall be called by the Company for
redemption, the Depositary Shares representing such Preferred Stock may be
converted into or exchangeable for Common Stock or such securities as provided
in this Deposit Agreement until and including, but not after, the close of
business on the redemption date (as defined in Section 2.03) unless the Company
shall default in making payment of the redemption price. Upon receipt by the
Depositary of a Receipt or Receipts representing any Preferred Stock called for
redemption, together with a properly completed and executed Notice of
Conversion/Exchange, the shares of Preferred Stock held by the Depositary
represented by such Depositary Shares as to which conversion or exchange, as the
case may be, is requested shall be deemed to have been received by the Company
for such conversion or exchange.
<PAGE>
12
Upon any conversion or exchange, as the case may be, of the
Preferred Stock underlying the Depositary Shares, no allowance, adjustment or
payment shall be made with respect to accrued dividends upon such Preferred
Stock, except that if any Holder of a Receipt surrenders such Receipt with
instructions to the Depositary for conversion or exchange of the underlying
Preferred Stock evidenced thereby during the period between the opening of
business on any dividend record date and the close of business on the
corresponding dividend payment date (except shares called for redemption on a
redemption date during such period), such Receipt must be accompanied by a
payment equal to the dividend thereon, if any, which the Holder of such Receipt
is entitled to receive on such dividend payment date in respect of the
underlying Preferred Stock to be converted or exchanged.
Upon the conversion or exchange of any shares of Preferred Stock for
which a duly completed and executed Notice of Conversion/Exchange has been
received by the Depositary, all dividends in respect of such Depositary Shares
shall cease to accrue, such Depositary Shares shall be deemed no longer
outstanding, all rights of the Holder of the Receipt with respect to such
Depositary Shares (except the right to receive the Common Stock or other
securities of the Company, any cash payable with respect to any fractional
shares of Common Stock or fractional number of such securities, as the case may
be, as provided herein and any cash payable on account of accrued dividends in
respect of the Preferred Stock so converted or exchanged and any Receipts
evidencing Depositary Shares not so converted or exchanged) shall terminate, and
the Receipt evidencing such Depositary Shares shall be cancelled in accordance
with Section 2.09 hereof.
No fractional shares of Common Stock or fractional number of
Securities, as the case may be, shall be issuable upon conversion or exchange of
Preferred Stock underlying the Depositary Shares. If, except for the provisions
of this Section 2.10 and the Certificate of Designations, any Holder of Receipts
surrendered to the Depositary for conversion or exchange of the underlying
Preferred Stock would be entitled to a fractional share of Common Stock or a
fractional security, as the case may be, upon such conversion or exchange, the
Company shall cause to be delivered to such Holder an amount in cash for such
fractional share or security determined in accordance with the Certificate of
Designations.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS OF RECEIPTS AND THE COMPANY
SECTION 3.01. FILING PROOFS, CERTIFICATES AND OTHER INFORMATION.
Any Holder may be required from time to time to file such proof of residence or
other information, to execute such certificates and to make such representations
and warranties as
<PAGE>
13
the Depositary or the Company may reasonably deem necessary or proper. The
Depositary or the Company may withhold or delay the delivery, transfer,
redemption or exchange of any Receipt, the withdrawal of the Preferred Stock
represented by the Depositary Shares evidenced by any Receipt, the distribution
of any dividend or other distribution, the sale of any rights or of the proceeds
thereof, the exercise of any conversion or exchange right referred to in Section
2.10 or the delivery of any Common Stock or other securities of the Company upon
such conversion or exchange until such proof or other information is filed, such
certificates are executed or such representations and warranties are made.
SECTION 3.02. PAYMENT OF FEES AND EXPENSES. Holders of Receipts
shall be obligated to make payments to the Depositary of certain fees and
expenses, as provided in Section 5.07, or provide evidence reasonably
satisfactory to the Depositary that such fees and expenses have been paid.
Until such payment is made, transfer of any Receipt or any withdrawal of the
Preferred Stock or money or other property, if any, represented by the
Depositary Shares evidenced by such Receipt may be refused, any dividend or
other distribution may be withheld, any conversion or exchange right may be
refused and any part or all of the Preferred Stock or other property represented
by the Depositary Shares evidenced by such Receipt may be sold for the account
of the Holder thereof (after attempting by reasonable means to obtain such
payment prior to such sale), PROVIDED that notice of such sale shall be sent
by the Depositary to such Holder. Any dividend or other distribution so
withheld and the proceeds of any such sale may be applied to any payment of such
fees or expenses, the Holder of such Receipt remaining liable for any
deficiency. In the event the Depositary is required to pay any such amounts,
the Company shall reimburse the Depositary for payment thereof upon the request
of the Depositary and the Depositary shall, upon the Company's request and as
instructed by the Company, pursue its rights against such Holder at the
Company's expense.
SECTION 3.03. REPRESENTATIONS AND WARRANTIES AS TO PREFERRED
STOCK. The Company hereby represents and warrants that (i) the shares of
Preferred Stock deposited hereunder have been duly authorized and, when issued
and deposited hereunder, will be validly issued, fully paid and nonassessable,
(ii) the Depositary Shares have been duly authorized and, when the Receipts are
executed, countersigned, issued and delivered in the manner provided for herein,
such Depositary Shares will represent legal and valid interests in the Preferred
Stock deposited hereunder, and (iii) all corporate action required to be taken
for the authorization, issuance and delivery of such Preferred Stock and
Depositary Shares has been validly taken. Such representations and warranties
shall survive the deposit of the Preferred Stock and the issuance of Receipts.
SECTION 3.04. REPRESENTATION AND WARRANTY AS TO RECEIPTS. The
Company hereby represents and warrants that the Depositary Shares, when the
Receipts evidenced thereby are duly executed by the Depositary or duly
countersigned by an authorized signatory of the Registrar and issued, will
represent legal and valid interests in the Preferred Stock.
<PAGE>
14
Such representation and warranty shall survive the deposit of the Preferred
Stock and the issuance of Receipts.
SECTION 3.05. COVENANTS AND REPRESENTATION AND WARRANTY AS TO
COMMON STOCK. In the event that the Depositary Shares evidence Preferred Stock
convertible into or exchangeable for Common Stock, the Company covenants that it
will give written notice to the Depositary of any adjustments in the conversion
price or exchange ratio made pursuant to the Certificate of Designations. The
Company hereby represents and warrants that the Common Stock issuable upon
conversion or exchange of the Preferred Stock, when issued, will be duly
authorized, validly issued, fully paid and nonassessable. Such representation
and warranty shall survive the conversion or exchange of the Preferred Stock
into such Common Stock. [to be modified if convertible into or exchangeable for
other securities of the Company]
ARTICLE IV
THE PREFERRED STOCK; NOTICES
SECTION 4.01. CASH DISTRIBUTIONS. Whenever the Depositary shall
receive any cash dividend or other cash distribution on the Preferred Stock,
including any cash received upon redemption of any shares of Preferred Stock
pursuant to Section 2.03, the Depositary shall, subject to Section 3.02,
distribute to Holders of Receipts on the record date fixed pursuant to Section
4.04 such amounts of such sum as are, as nearly as practicable, in proportion to
the respective numbers of Depositary Shares evidenced by the Receipts held by
such Holders; PROVIDED, HOWEVER, that in case the Company or the Depositary
shall withhold from any cash dividend or other cash distribution in respect of
the Preferred Stock represented by the Receipts held by any Holder an amount on
account of taxes or as otherwise required by law, regulation or court order, the
amount made available for distribution or distributed in respect of Depositary
Shares represented by such Receipts subject to such withholding shall be reduced
accordingly. The Depositary shall distribute or make available for
distribution, as the case may be, only such amount, however, as can be
distributed without attributing to any Holder of Depositary Shares a fraction of
one cent, and any balance not so distributable shall be held by the Depositary
(without liability for interest thereon) and shall be added to and be treated as
part of the next sum received by the Depositary for distribution to Holders of
Receipts then outstanding.
SECTION 4.02. DISTRIBUTIONS OTHER THAN CASH. Whenever the
Depositary shall receive any distribution other than cash on the Preferred
Stock, the Depositary shall, subject to Section 3.02, distribute to Holders of
Receipts on the record date fixed pursuant to Section 4.04 such amounts of the
securities or property received by it as are, as nearly as practicable, in
proportion to the respective numbers of Depositary Shares evidenced by the
<PAGE>
15
Receipts held by such Holders, in any manner that the Depositary and the Company
may deem equitable and practicable for accomplishing such distribution. If, in
the opinion of the Depositary after consultation with the Company, such
distribution cannot be made proportionately among such Holders, or if for any
other reason (including any requirement that the Company or the Depositary
withhold an amount on account of taxes or as otherwise required by law,
regulation or court order), the Depositary deems, after consultation with the
Company, such distribution not to be feasible, the Depositary may, with the
approval of the Company, adopt such method as it deems equitable and practicable
for the purpose of effecting such distribution, including the public or private
sale of the securities or property thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall, subject to Section 3.02, be distributed or made available
for distribution, as the case may be, by the Depositary to Holders of Receipts
as provided by Section 4.01 in the case of a distribution received in cash. The
Company shall not make any distribution of such securities or property to the
Holders of Receipts unless the Company shall have provided to the Depositary an
opinion of counsel stating that such securities or property have been registered
under the Securities Act or do not need to be registered.
SECTION 4.03. SUBSCRIPTION RIGHTS, PREFERENCES OR PRIVILEGES. If
the Company shall at any time offer or cause to be offered to the persons in
whose names Preferred Stock is registered on the books of the Company any
rights, preferences or privileges to subscribe for or to purchase any securities
or any rights, preferences or privileges of any other nature, such rights,
preferences or privileges shall, if the Company so directs, in each such
instance be made available by the Depositary to the Holders in such manner as
the Company shall instruct (including by the issue to such Holders of warrants
representing such rights, preferences or privileges); PROVIDED, HOWEVER,
that (a) if at the time of the issuance or offering of any such rights,
preferences or privileges the Company determines that it is not lawful or
feasible to make such rights, preferences or privileges available to some or all
Holders of Receipts (by the issue of warrants or otherwise) or (b) if and to the
extent instructed by Holders who do not desire to exercise such rights,
preferences or privileges, the Depositary shall, if so instructed by the
Company, and if applicable laws or the terms of such rights, preferences or
privileges so permit, sell such rights, preferences or privileges of such
Holders at public or private sale, at such place or places and upon such terms
as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.01 and 3.02, be distributed by the Depositary to the Holders of
Receipts entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of
such rights, preferences or privileges, unless the Company shall have provided
to the Depositary an opinion of counsel stating that such rights, preferences or
privileges have been registered under the Securities Act or do not need to be
registered.
If registration under the Securities Act of any securities to which
any rights, preferences or privileges relate is required in order for Holders to
be offered or sold the
<PAGE>
16
securities to which such rights, preferences or privileges relate, the Company
agrees that it will promptly file a registration statement pursuant to the
Securities Act with respect to such rights, preferences or privileges and
securities and use all reasonable efforts to cause such registration statement
to become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such Holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the Holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration statement shall
have become effective or unless the offering and sale of such securities to such
Holders are exempt from registration under the provisions of the Securities Act
and the Company shall have provided to the Depositary an opinion of counsel to
such effect.
If any other action under the law of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to
Holders, the Company agrees to use all reasonable efforts to take such action or
obtain such authorization, consent or permit sufficiently in advance of the
expiration of such rights, preferences or privileges to enable such Holders to
exercise such rights, preferences or privileges.
SECTION 4.04. NOTICE OF DIVIDENDS; FIXING OF RECORD DATE FOR
HOLDERS OF RECEIPTS. Whenever any cash dividend or other cash distribution
shall become payable, any distribution other than cash shall be made, or any
rights, preferences or privileges shall at any time be offered, with respect to
the Preferred Stock, or whenever the Depositary shall receive notice of (i) any
meeting at which holders of Preferred Stock are entitled to vote or of which
they are entitled to notice or (ii) any election on the part of the Company to
redeem any shares of Preferred Stock, the Depositary shall in each such instance
fix a record date (which shall be the same date as the record date fixed by the
Company with respect to the Preferred Stock) for the determination of the
Holders who shall be entitled to receive such dividend, distribution, rights,
preferences or privileges or the net proceeds of the sale thereof, to give
instructions for the exercise of voting rights at any such meeting or to receive
notice of such meeting or whose Depositary Shares are to be so redeemed.
SECTION 4.05. VOTING RIGHTS. Upon receipt of notice of any
meeting at which the holders of Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the Holders of
Receipts a notice, which shall be provided by the Company and which shall
contain (i) such information as is contained in such notice of meeting, (ii) a
statement that the Holders of Receipts at the close of business on a specified
record date fixed pursuant to Section 4.04 will be entitled, subject to any
applicable provision of law, the Certificate of Incorporation or the Certificate
of Designations, to instruct the Depositary as to the exercise of the voting
rights pertaining to the amount of Preferred Stock represented by their
respective Depositary Shares and (iii) a brief statement as to the manner in
which such instructions may be given. Upon the written request of a Holder of a
Receipt
<PAGE>
17
on such record date, the Depositary shall, to the extent practicable, vote or
cause to be voted the amount of Preferred Stock represented by the Depositary
Shares evidenced by such Receipt in accordance with the instructions set forth
in such request. The Company hereby agrees to take all reasonable action that
may be deemed necessary by the Depositary in order to enable the Depositary to
vote such Preferred Stock or cause such Preferred Stock to be voted. In the
absence of specific instructions from the Holder of a Receipt, the Depositary
will abstain from voting to the extent of the Preferred Stock represented by the
Depositary Shares evidenced by such Receipt. The Depositary shall not be
required to exercise discretion in voting any Preferred Stock represented by the
Depositary Shares evidenced by such Receipt.
SECTION 4.06. CHANGES AFFECTING PREFERRED STOCK AND
RECLASSIFICATION, RECAPITALIZATIONS, ETC. Upon any change in the par value, or
upon any split-up, combination or any other reclassification, of the Preferred
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party or the sale of all
or substantially all of the Company's assets, the Depositary shall, upon the
instructions of the Company, treat any shares of stock or other securities or
property (including cash) that shall be received by the Depositary in exchange
for or upon conversion of or in respect of the Preferred Stock as new deposited
property under this Deposit Agreement, and Receipts then outstanding shall
thenceforth represent the proportionate interests of Holders thereof in the new
deposited property so received in exchange for or upon conversion of or in
respect of such Preferred Stock. In any such case the Depositary may, in its
discretion, with the approval of the Company, execute and deliver additional
Receipts, or may call for the surrender of all outstanding Receipts to be
exchanged for new Receipts specifically describing such new deposited property.
Anything to the contrary herein notwithstanding, Holders of Receipts shall have
the right from and after the effective date of any such change in par value, or
upon any such split-up, combination or other reclassification, of the Preferred
Stock or any such recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company, or sale of all or substantially all of the
Company's assets to surrender such Receipts to the Depositary with instructions
to convert, exchange or surrender the Preferred Stock represented thereby only
into or for, as the case may be, the kind and amount of shares of stock and
other securities and property and cash into which the Preferred Stock
represented by such Receipts might have been converted or for which such
Preferred Stock might have been exchanged or surrendered immediately prior to
the effective date of such transaction.
SECTION 4.07. INSPECTION OF REPORTS. The Depositary shall
furnish to Holders of Receipts any reports and communications received from the
Company that are received by the Depositary as the holder of Preferred Stock and
that the Company is required to furnish to Holders of the Preferred Stock.
<PAGE>
18
SECTION 4.08. LISTS OF RECEIPT HOLDERS. Promptly upon request
from time to time by the Company, the Depositary shall furnish to the Company a
list, as of a recent date specified by the Company, of the names, addresses and
holdings of Depositary Shares of all persons in whose names Receipts are
registered on the books of the Depositary.
SECTION 4.09. TAX AND REGULATORY COMPLIANCE. The Depositary
shall be responsible for (i) preparation and mailing of form 1099s (or successor
forms) for all open and closed accounts, (ii) foreign tax withholding, (iii)
withholding of tax on dividends payable to eligible Holders of Receipts, (iv)
mailing W-9 forms (or successor forms) to new Holders of Receipts without a
certified taxpayer identification number, (v) processing certified W-9 forms (or
successor forms), (vi) preparation and filing of state information returns and
(vii) escheatment services.
SECTION 4.10. WITHHOLDING. Notwithstanding any other provision
of this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax that the Depositary is obligated
to withhold, the Depositary may dispose of all or a portion of such property in
such amounts and in such manner as the Depositary deems necessary and
practicable to pay such taxes, by public or private sale at such place or places
and upon such terms as it shall deem proper after consultation with the Company,
and the Depositary shall distribute the net proceeds of any such sale or the
balance of any such property after deduction of such taxes to the Holders of
Receipts entitled thereto in proportion to the number of Depositary Shares held
by them respectively.
ARTICLE V
THE DEPOSITARY AND THE COMPANY
SECTION 5.01. MAINTENANCE OF OFFICES, AGENCIES AND TRANSFER BOOKS
BY THE DEPOSITARY AND THE REGISTRAR. Upon execution of this Deposit Agreement
in accordance with its terms, the Depositary shall maintain at the Corporate
Office facilities for the execution and delivery, transfer, surrender and
exchange, split-up, combination and redemption of Receipts and deposit and
withdrawal of Preferred Stock and at the offices of any Agent, facilities for
the delivery, transfer, surrender and exchange, split-up, combination and
redemption of Receipts and deposit and withdrawal of Preferred Stock, all in
accordance with the provisions of this Deposit Agreement.
The Depositary shall keep books at the Corporate Office for the
registration and transfer of Receipts, which books shall be open at all
reasonable times for inspection by the Holders of Receipts, as provided by
applicable law. The Depositary shall consult with the Company upon receipt of
any request for inspection. The Depositary may close such
<PAGE>
19
books, at any time or from time to time, when deemed expedient by it in
connection with the performance of its duties hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on any
stock exchange, and if required by any such stock exchange, the Depositary shall
appoint, at the expense of the Company, a Registrar (acceptable to the Company)
for registry of Receipts or Depositary Shares in accordance with the
requirements of such exchange. Such Registrar (which may be the Depositary if
so permitted by such exchange) may be removed, and a substitute registrar
appointed, by the Depositary upon the request or with the approval of the
Company.
The Company hereby also appoints the Depositary as Registrar and
Transfer Agent in respect of the Receipts, and the Depositary hereby accepts
such appointments.
SECTION 5.02. PREVENTION OR DELAY IN PERFORMANCE BY THE
DEPOSITARY, ANY AGENT, THE REGISTRAR OR THE COMPANY. Neither the Depositary,
any Agent, any Registrar nor the Company shall incur any liability to any Holder
of any Receipt, if by reason of any provision of any present or future law or
regulation thereunder of the United States of America or of any other
governmental authority, or by reason of any present or future provision of the
Certificate of Incorporation or the Certificate of Designations, or by reason of
any act of God or war or other circumstance beyond the control of the relevant
party, the Depositary, any Agent, the Registrar or the Company shall be
prevented or forbidden from doing or performing any act or thing that the terms
of this Deposit Agreement provide shall be done or performed; nor shall the
Depositary, any Agent, any Registrar or the Company incur any liability to any
Holder of a Receipt by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing that the terms of this Deposit
Agreement provide shall or may be done or performed, or by reason of any
exercise of, or failure to exercise, any discretion provided for in this Deposit
Agreement.
SECTION 5.03. OBLIGATIONS OF THE DEPOSITARY, ANY AGENT, THE
REGISTRAR AND THE COMPANY. Neither the Depositary, any Agent, any Registrar
nor the Company assumes any obligation or shall be subject to any liability
under this Deposit Agreement or any Receipt to Holders of Receipts so long as
each of them acts in good faith in the performance of such duties as are
specifically set forth in this Deposit Agreement.
Neither the Depositary, any Agent, any Registrar nor the Company
shall be under any obligation to appear in, prosecute or defend any action, suit
or other proceeding with respect to Preferred Stock, Depositary Shares or
Receipts that in its opinion may subject it to expense or liability, unless
indemnity satisfactory to it against all such expense and liability be
furnished.
<PAGE>
20
Neither the Depositary, any Agent, any Registrar nor the Company
shall be liable for any action taken or any failure to act in reliance upon the
advice of legal counsel, or the advice of or information provided by any
accountant, any Holder of a Receipt or any other person believed by it in good
faith to be competent to give such advice or information. The Depositary, any
Agent, any Registrar and the Company may each rely and shall each be protected
in acting upon any written notice, request, direction or other document believed
by it to be genuine and to have been signed or presented by the proper party or
parties.
In the event the Depositary shall receive conflicting claims,
requests or instructions from any Holders of Receipts, on the one hand, and the
Company, on the other hand, the Depositary shall be entitled to act on such
claims, requests or instructions received from the Company, and shall be
entitled to the full indemnification set forth in Section 5.06 hereof in
connection with any action so taken.
The Depositary shall not be responsible for any failure to carry out
any instruction to vote any of the Preferred Stock or for the manner or effect
of any such vote, as long as any such action or non-action is in good faith and
does not result from negligence or willful misconduct of the Depositary. The
Depositary undertakes, and any Registrar shall be required to undertake, to
perform such duties and only such duties as are specifically set forth in this
Deposit Agreement, and no covenants or obligations shall be implied against the
Depositary or any Registrar. The Depositary, its parents, affiliates, or
subsidiaries, any Depositary's Agent, and any Registrar may own, buy, sell or
deal in any class of securities of the Company and its affiliates and in
Receipts or Depositary Shares or become pecuniarily interested in any
transaction in which the Company or its affiliates may be interested or contract
with or lend money to or otherwise act as fully or as freely as if it were not
the Depositary, any Agent or the Registrar hereunder. The Depositary may also
act as transfer agent or registrar of any of the securities of the Company and
its affiliates or act in any other capacity for the Company or its affiliates.
It is intended that neither the Depositary nor any Agent shall be
deemed to be an "issuer" of the securities under the federal securities laws or
applicable state securities laws, it being expressly understood and agreed that
the Depositary and any Agent are acting only in a ministerial capacity as
Depositary for the Preferred Stock; PROVIDED, HOWEVER, that the Depositary
agrees to comply with all information reporting and withholding requirements
applicable to it under law or this Deposit Agreement in its capacity as
Depositary.
Neither the Depositary (or its officers, directors, employees or
agents) nor any Depositary's Agent makes any representation or has any
responsibility as to the validity of any registration statement pursuant to
which the Depositary Shares are registered under the Securities Act, the
Preferred Stock, the Depositary Shares, the Receipts (except as to the
authenticity of its countersignature thereon) or any instruments referred to
therein or herein,
<PAGE>
21
or as to the correctness of any statement made therein or herein; PROVIDED,
HOWEVER, that the Depositary is responsible for its representations in this
Deposit Agreement.
SECTION 5.04. RESIGNATION AND REMOVAL OF THE DEPOSITARY;
APPOINTMENT OF SUCCESSOR DEPOSITARY. The Depositary may at any time resign as
Depositary hereunder by notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
depositary and the acceptance of such appointment as hereinafter provided.
The Depositary may at any time be removed by the Company by notice
of such removal delivered to the Depositary, such removal to take effect upon
the appointment of a successor depositary and the acceptance of such appointment
as hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or
be removed, the Company shall, within 60 days after the delivery of the notice
of resignation or removal, as the case may be, appoint a successor depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If a successor depositary shall not have been appointed in 60
days, the resigning or removed Depositary may petition a court of competent
jurisdiction to appoint a successor depositary. Every successor depositary
shall execute and deliver to its predecessor and to the Company an instrument in
writing accepting its appointment hereunder, and thereupon such successor
depositary, without any further act or deed, shall become fully vested with all
the rights, powers, duties and obligations of its predecessor and for all
purposes shall be the Depositary under this Deposit Agreement, and such
predecessor, upon payment of all sums due it and on the written request of the
Company, shall promptly execute and deliver an instrument transferring to such
successor all rights and powers of such predecessor hereunder, shall duly
assign, transfer and deliver all right, title and interest in the Preferred
Stock and any moneys or property held hereunder to such successor and shall
deliver to such successor a list of the Holders of all outstanding Receipts and
all records, books and other information relating thereto. Any successor
depositary shall promptly mail notice of its appointment to the Holders of
Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor Depositary without the
execution or filing of any document or any further act. Such successor
depositary may execute the Receipts either in the name of the predecessor
depositary or in the name of the successor depositary.
SECTION 5.05. CORPORATE NOTICES AND REPORTS. The Company agrees
that it will deliver to the Depositary, and the Depositary will, promptly after
receipt thereof, transmit to the Holders of Receipts, in each case at the
address recorded in the Depositary's books, copies of all notices and reports
(including financial statements) required by law, by the rules of any national
securities exchange upon which the Preferred Stock, the Depositary
<PAGE>
22
Shares or the Receipts may be listed or by the Certificate of Incorporation and
the Certificate of Designations to be furnished by the Company to holders of
Preferred Stock. Such transmission will be at the Company's expense, and the
Company will provide the Depositary with such number of copies of such documents
as the Depositary may reasonably request. In addition, the Depositary will
transmit to the Holders of Receipts at the Company's expense such other
documents as may be requested by the Company.
SECTION 5.06. INDEMNIFICATION BY THE COMPANY. The Company agrees
to indemnify the Depositary, any Agent and any Registrar against, and hold each
of them harmless from, any liability, costs and expenses (including reasonable
attorneys' fees) that may arise out of, or in connection with, its acting as
Depositary, Agent or Registrar, respectively, under this Deposit Agreement and
the Receipts, except for any liability arising out of negligence or bad faith on
the part of any such entity. The obligations of the Company set forth in this
Section 5.06 shall survive any succession of any Depositary, Registrar or Agent
or termination of this Deposit Agreement.
SECTION 5.07. FEES, CHARGES AND EXPENSES. The Company shall pay
all transfer and other similar taxes and governmental charges arising solely
from the existence of the depositary arrangements. The Company shall pay all
fees of the Depositary in connection with the initial deposit of the Preferred
Stock and the initial issuance of the Depositary Shares evidenced by the
Receipts, any redemption of the Preferred Stock at the option of the Company and
all withdrawals of Preferred Stock by Holders of Depositary Shares. Other than
payment of any tax or other governmental charge due upon the issuance of shares
of Common Stock or other securities of the Company issuable upon conversion or
exchange of the Preferred Stock or upon delivery of Preferred Stock and the
money and/or other property being withdrawn pursuant to Section 2.06 to a person
other than the Holder as specified in the conversion/exchange notice relating
thereto or in the written order delivered to the Depositary by the Holder, the
Company will pay any and all issue and other taxes (other than taxes based on
income) that may be payable in respect of any issue or delivery of shares of
Common Stock or other securities of the Company on conversion or exchange of the
Preferred Stock. All other transfer and other taxes and governmental charges
shall be at the expense of Holders of Depositary Shares. If a Holder of
Receipts requests the Depositary to perform duties not required under this
Deposit Agreement, the Depositary shall notify the Holder of the cost of such
performance of such duties before performing such duties, and such Holder will
be liable for the charges and expenses related to such performance. Except as
otherwise provided herein, all other reasonable fees and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, reasonable fees and expenses of counsel) incident to the
performance of their respective obligations hereunder will be paid upon
consultation and agreement between the Depositary and the Company as to the
amount and nature of such fees and expenses. The Depositary shall present its
statement for fees and expenses to the Company once every three months or at
such other intervals as the Company and the Depositary may agree.
<PAGE>
23
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. AMENDMENT. The form of the Receipts and any
provision of this Deposit Agreement may at any time and from time to time be
amended by agreement between the Company and the Depositary in any respect that
they may deem necessary or desirable; PROVIDED, HOWEVER, that no such
amendment which (i) shall materially and adversely alter the rights of the
Holders of Receipts (PROVIDED that any change in the fees of any Depositary,
Registrar or transfer agent shall not be deemed to materially and adversely
alter the rights of such Holders) or (ii) would be materially and adversely
inconsistent with the rights granted to the holders of the Preferred Stock
pursuant to the Certificate of Designations shall be effective unless such
amendment shall have been approved by the Holders of at least a majority of the
Depositary Shares then outstanding. Any amendment that shall impose any fees,
taxes or charges (other than fees and charges provided for herein or in the
Receipts), or that shall otherwise prejudice any substantial existing right of
Holders of Receipts, shall not become effective as to Receipts until the
expiration of 90 days after notice of such amendment shall have been given to
the Holders. Every Holder of a Receipt at the time any such amendment becomes
effective shall be deemed, by continuing to hold such Receipt, to consent and
agree to such amendment and to be bound by this Deposit Agreement as amended
thereby. In no event shall any amendment impair the right of the Holder of any
Receipt to surrender such Receipt and receive the Preferred Stock therefor,
subject to the terms hereof.
SECTION 6.02. TERMINATION. This Deposit Agreement may be
terminated by the Company at any time upon not less than 60 days' prior written
notice to the Depositary, in which case, upon a date that is not later than 30
days after the date of such notice, the Depositary shall deliver or make
available for delivery to each Holder, upon surrender of such Holder's Receipt
or Receipts, such number of whole shares of Preferred Stock represented by such
Receipt or Receipts. In the event that such Receipt or Receipts should
represent a fractional number of shares of Preferred Stock, the Depositary shall
aggregate all such interests in fractional shares of Preferred Stock and, with
the approval of the Company, adopt such method as it deems equitable and
practicable for the purpose of effecting the distribution of such interests,
including the public or private sale of the whole number of shares of Preferred
Stock so aggregated, or any part thereof, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale shall be
distributed or made available for distribution, as the case may be, by the
Depositary to Holders of such Receipts evidencing an interest in fractional
shares of Preferred Stock. If a Holder shall not have so surrendered such
Holder's Receipt or Receipts in exchange for whole shares of Preferred Stock on
or prior to the effective date of termination of this Deposit Agreement, such
Holder shall for all purposes, including the payment of dividends,
<PAGE>
24
be deemed to be a Holder of the appropriate number of Depositary Shares
previously represented by such Receipt or Receipts and shall thereafter
surrender to the Company such Receipt or Receipts in exchange for whole shares
of Preferred Stock. In the event that such Receipt or Receipts should represent
an interest in fractional shares of Preferred Stock, the Company shall aggregate
all such interests in fractional shares of Preferred Stock and adopt such method
as it deems equitable and practicable for the purpose of effecting the
distribution of such interest, including the public or private sale of the whole
number of shares of Preferred Stock so aggregated, or any part thereof, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall be distributed by the Company to Holders of such Receipts
evidencing an interest in fractional shares of Preferred Stock. Upon
termination of this Deposit Agreement, the Depositary shall surrender to the
Company any shares of Preferred Stock held by the Depositary and the Company
shall hold such Preferred Stock for the benefit of the Holder of Receipts which
previously represented such Preferred Stock.
This Agreement shall automatically terminate after (i) all
outstanding Depositary Shares shall have been redeemed pursuant to Section 2.03
or withdrawn pursuant to Section 2.06, (ii) in the event that the Depositary
Shares represent Preferred Stock convertible into or exchangeable for Common
Stock or other securities of the Company, each share of Preferred Stock shall
have been converted into or exchanged for shares of Common Stock or other
securities of the Company pursuant to Section 2.10, as the case may be, or (iii)
there shall have been made a final distribution in respect of the Preferred
Stock in connection with any liquidation, dissolution or winding up of the
Company and such distribution shall have been distributed to the Holders of
Receipts pursuant to Section 4.01 or 4.02, as applicable.
Upon the termination of this Deposit Agreement, the Company shall be
discharged from all obligations under this Deposit Agreement except for its
obligations to the Depositary, any Agent of the Depositary and any Registrar
under Sections 5.06 and 5.07.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. COUNTERPARTS. This Deposit Agreement may be
executed in any number of counterparts, and by each of the parties hereto on
separate counterparts, each of which counterparts, when so executed and
delivered, shall be deemed an original, but all such counterparts taken
together shall constitute one and the same instrument. Delivery of an executed
counterpart of a signature page to this Deposit Agreement by telecopier shall be
effective as delivery of a manually executed counterpart of this Deposit
Agreement. Copies of this Deposit Agreement shall be filed with the Depositary
and Agents for the Depositary
<PAGE>
25
and shall be open to inspection during business hours at the Corporate Office
and the respective offices of the Agents for the Depositary, if any, by any
Holder of a Receipt.
SECTION 7.02. EXCLUSIVE BENEFITS OF PARTIES. This Deposit
Agreement is for the exclusive benefit of the parties hereto, including Holders
of the Receipts, and their respective successors hereunder, and shall not be
deemed to give any legal or equitable right, remedy or claim to any other person
whatsoever.
SECTION 7.03. INVALIDITY OF PROVISIONS. In case any one or more
of the provisions contained in this Deposit Agreement or in the Receipts should
be or become invalid, illegal or unenforceable in any respect, the validity,
legality and enforceability of the remaining provisions contained herein or
therein shall in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. NOTICES. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail, or by telegram,
facsimile transmission or other electronic means of communication confirmed by
letter, addressed to the Company at:
DEERE & COMPANY
John Deere Road
Moline, Illinois 61265-8098
Attention: Treasurer (with a copy to Secretary)
Telephone No.: 309/765-4675
Facsimile No.: 309/765-5345
or at any other address of which the Company shall have notified the Depositary
in writing.
Any notices to be given to the Depositary hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram, facsimile transmission or
other electronic means of communication confirmed by letter, addressed to the
Depositary at the Corporate Office.
Any notices given to any Holder of a Receipt hereunder or under the
Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail, or by telegram, facsimile transmission or
other electronic means of communication, addressed to such Holder at the address
of such Holder as it appears on the books of the Depositary or, if such Holder
shall have filed with the Depositary in a timely manner a written request that
notices intended for such Holder be mailed to some other address, at the address
designated in such request.
<PAGE>
26
SECTION 7.05. HOLDERS OF RECEIPTS ARE PARTIES. The Holders of
Receipts from time to time shall be deemed to be parties to this Deposit
Agreement and shall be bound by all of the terms and conditions hereof and of
the Receipts by acceptance of delivery thereof.
SECTION 7.06. GOVERNING LAW. This Deposit Agreement and the
Receipts and all rights hereunder and thereunder and provisions hereof and
thereof shall be governed by, and construed in accordance with, the law of the
State of New York applicable to contracts made and to be performed entirely
within such State.
SECTION 7.07. INSPECTION OF DEPOSIT AGREEMENT AND CERTIFICATE OF
DESIGNATIONS. Copies of this Deposit Agreement and the Certificate of
Designations shall be filed with the Depositary and any Agent and shall be open
to inspection by any Holder of a Receipt during business hours at the Corporate
Office and the respective offices of any Agent.
SECTION 7.08. HEADINGS. The headings of articles and sections in
this Deposit Agreement and in the form of the Receipt set forth in Exhibit A
hereto have been inserted for convenience only and are not to be regarded as a
part of this Deposit Agreement or to have any bearing upon the meaning or
interpretation of any provision contained herein or in the Receipts.
<PAGE>
27
IN WITNESS WHEREOF, DEERE & COMPANY and [NAME OF BANK] have duly
executed this Deposit Agreement as of the day and year first above set forth,
and all Holders of Receipts shall become parties hereto by and upon acceptance
by them of delivery of Receipts issued in accordance with the terms hereof.
DEERE & COMPANY
By:
------------------------------
Attest: Authorized Officer
[NAME OF BANK]
By:
------------------------------
Attest: Authorized Signatory
<PAGE>
Exhibit A
[FORM OF FACE OF RECEIPT]
NUMBER DEPOSITARY SHARES
CERTIFICATE FOR NOT MORE THAN ____________________ DEPOSITARY SHARES
TDR
RECEIPT FOR DEPOSITARY SHARES,
EACH REPRESENTING ________ [specify fraction] PREFERRED STOCK, SERIES ___ OF
DEERE & COMPANY
CUSIP _______
INCORPORATED UNDER THE LAWS OF THE SEE REVERSE FOR CERTAIN DEFINITIONS
STATE OF NEW YORK
______________________ , as Depositary (the "Depositary"), hereby certifies that
is the registered owner DEPOSITARY SHARES
("Depositary Shares"), each Depositary Share representing [specify fraction] of
one share of _______ Series __ Preferred Stock, $__ par value (the "Stock"), of
DEERE & COMPANY, a corporation duly organized and existing under the laws of the
State of Delaware (the "Company"), on deposit with the Depositary, subject to
the terms and entitled to the benefits of the Deposit Agreement dated as of
___________, 199_ (the "Deposit Agreement"), among the Company, the Depositary
and the Holders from time to time of Receipts for Depositary Shares. By
accepting this Receipt the Holder hereof becomes a party to and agrees to be
bound by all the terms and conditions of the Deposit Agreement. This Receipt
shall not be valid or obligatory for any purpose or entitled to any benefits
under the Deposit Agreement unless it shall have been executed by the Depositary
by the manual signature of a duly authorized officer or, if executed in
facsimile by the Depositary, countersigned by a Registrar in respect of the
Receipts by the manual signature of a duly authorized officer thereof.
Dated: Countersigned:
By By
------------------------------ --------------------------
Depositary Registrar
<PAGE>
[FORM OF REVERSE OF RECEIPT]
DEERE & COMPANY
DEERE & COMPANY WILL FURNISH WITHOUT CHARGE TO EACH REGISTERED
HOLDER OF RECEIPTS WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A COPY OF
THE CERTIFICATE OF DESIGNATIONS WITH RESPECT TO THE PREFERRED STOCK SERIES OF
DEERE & COMPANY. ANY SUCH REQUEST IS TO BE ADDRESSED TO THE DEPOSITARY NAMED ON
THE FACE OF THIS RECEIPT.
-------------------------------
The following abbreviations when used in the instructions on the
face of this receipt shall be construed as though they were written out in full
according to applicable laws or regulations.
<TABLE>
<S> <C>
TEN COM -- as tenant in common UNIF GIFT MIN ACT -- _____________ Custodian _____________
(Cust) (Minor)
TEN ENT -- as tenants by the Under Uniform Gifts to Minors Act
entireties
JT TEN -- as joint tenants with
right of survivorship -----------------------------
and not as tenants in (State)
common
</TABLE>
Additional abbreviations may also be used though not in the above list.
ASSIGNMENT
For value received, _____________ hereby sell(s), assign(s) and
transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS INCLUDING POSTAL ZIP CODE
OF ASSIGNEE
- -------------------------------------------------------------------------------
- ---------------------------------------------------------- Depositary Shares
represented by the within Receipt, and do hereby irrevocably constitute and
appoint Attorney to transfer the said Depositary Shares on the books of the
within named Depositary with full power of substitution in the premises.
Dated
---------------
--------------------------------------
NOTICE: The signature to the
assignment must correspond
with the name as written
upon the face of this
Receipt in every
particular, without
alteration or enlargement
or any change whatever.
<PAGE>
SHEARMAN & STERLING
599 LEXINGTON AVENUE
NEW YORK, NY 10022-6069
Exhibit 5
June 15, 1994
Board of Directors
Deere & Company
John Deere Road
Moline, Illinois 61265
Ladies and Gentlemen:
We are acting as counsel for Deere & Company (the "Company") in
connection with the combined Registration Statement on Form S-3 and
Post-Effective Amendment No. 1 to Registration Statement No. 33-66134 (the
"Registration Statement") being filed with the Securities and Exchange
Commission (the "Commission") under the Securities Act of 1933, as amended,
relating to the offering from time to time, as set forth in the combined
prospectus pursuant to Rule 429 contained in the Registration Statement (the
"Prospectus") and as to be set forth in one or more supplements to the
Prospectus (each such supplement, a "Prospectus Supplement"), of the Company's
(i) debt securities (the "Debt Securities"), (ii) warrants to purchase Debt
Securities (the "Debt Warrants"), (iii) preferred stock (the "Preferred Stock"),
(iv) Preferred Stock represented by depositary shares (the "Depositary Shares"),
(v) common stock (the "Common Stock"), (vi) warrants to purchase Common Stock
(the "Common Warrants"), (vii) warrants the value of which is related to the
value of various currencies (the "Currency Warrants") and (viii) other warrants
the value of which is related to various indices or other items (the "Other
Warrants") with an aggregate issue price of up to $700,000,000. The Debt
Warrants, Common Warrants, Currency Warrants and Other Warrants are collectively
referred to as the "Warrants" and the Warrants, together with the Debt
Securities, the Preferred Stock, the Depositary Shares and the Common Stock are
collectively referred to as the "Securities". Any Debt Securities and Preferred
Stock may be convertible into or exchangeable for Common Stock or other
Securities.
The Debt Securities will be issued in one or more series and may be
either senior debt securities (the "Senior Securities") issued pursuant to an
Indenture (the "Senior Indenture") to be entered into between the Company and
The Chase Manhattan Bank (National Association), trustee (the "Senior Trustee"),
or subordinated debt securities (the "Subordinated Securities") issued pursuant
to an Indenture (the "Subordinated Indenture") to be entered into between the
Company and The Bank of New York, trustee (the "Subordinated
<PAGE>
Board of Directors 2 June 15, 1994
Trustee"). The Debt Warrants will be issued under one or more debt warrant
agreements (each, a "Debt Warrant Agreement"), the Common Warrants will be
issued under one or more common warrant agreements (each, a "Common Warrant
Agreement"), the Currency Warrants will be issued under one or more currency
warrant agreements (each, a "Currency Warrant Agreement") and the Other Warrants
will be issued under one or more warrant agreements (each, an "Other Warrant
Agreement" and, together with the Debt Warrant Agreements, the Common Warrant
Agreements and the Currency Warrant Agreements, the "Warrant Agreements") each
to be between the Company and a financial institution identified therein as
warrant agent (each, a "Warrant Agent"). The Depositary Shares will be issued
under one or more Deposit Agreements (each, a "Deposit Agreement"), each to be
between the Company and a financial institution identified therein as the
depositary (the "Depositary").
We are familiar with the corporate proceedings of the Company to date
with respect to the proposed issuance and sale of the Securities, including
resolutions of the Board of Directors of the Company (the "Resolutions")
authorizing the Indentures and the issuance, offering and sale of the
Securities, and we have examined such corporate records of the Company and such
other documents and certificates as we have deemed necessary as a basis for the
opinions hereinafter expressed.
Based on the foregoing, and having regard for such legal
considerations as we have deemed relevant, we are of the opinion that:
1. The Senior Indenture has been duly authorized and, when executed
and delivered by the Company pursuant to the authority granted in the
Resolutions, and assuming due authorization, execution and delivery thereof by
the Senior Trustee, will constitute a valid and legally binding instrument of
the Company enforceable against the Company in accordance with its terms.
2. The Senior Securities (including Senior Securities issuable upon
conversion of or exchange for any Security or upon exercise of any Debt Warrant)
have been duly authorized and, when the final terms thereof have been duly
established and approved and when duly executed by the Company, in each case
pursuant to the authority granted in the Resolutions, and authenticated by the
Senior Trustee in accordance with the Senior Indenture and delivered to and paid
for by the purchasers thereof, will constitute valid and legally binding
obligations of the Company entitled to the benefits of the Senior Indenture.
3. The Subordinated Indenture has been duly authorized and, when
executed and delivered by the Company pursuant to the authority granted in the
Resolutions, and assuming due authorization, execution and delivery thereof by
the Subordinated Trustee, will constitute a valid and legally binding instrument
of the Company enforceable against the Company in accordance with its terms.
<PAGE>
Board of Directors 3 June 15, 1994
4. The Subordinated Securities (including Subordinated Securities
issuable upon conversion of or exchange for any Security or upon exercise of any
Debt Warrant) have been duly authorized and, when the final terms thereof have
been duly established and approved and when duly executed by the Company, in
each case pursuant to the authority granted in the Resolutions, and
authenticated by the Subordinated Trustee in accordance with the Subordinated
Indenture and delivered to and paid for by the purchasers thereof, will
constitute valid and legally binding obligations of the Company entitled to the
benefits of the Subordinated Indenture.
5. The Warrant Agreements have been duly authorized and, when
executed and delivered by the Company pursuant to the authority granted in the
Resolutions, and assuming due authorization, execution and delivery thereof by
the applicable Warrant Agent, will constitute valid and legally binding
instruments of the Company enforceable against the Company in accordance with
their respective terms.
6. The Warrants have been duly authorized and, when the final terms
thereof have been duly established and approved and when certificates
representing such Warrants have been duly executed by the Company, in each case
pursuant to the authority granted in the Resolutions, and when such certificates
have been countersigned by the applicable Warrant Agent in accordance with the
applicable Warrant Agreement and delivered to and paid for by the purchasers
thereof, such Warrants will constitute valid and legally binding obligations of
the Company entitled to the benefits of the applicable Warrant Agreement.
7. The Preferred Stock (including Preferred Stock issuable upon
conversion of or exchange for any Security) has been duly authorized and, when
the final terms thereof have been duly established and approved and certificates
representing such Preferred Stock have been duly executed by the Company, in
each case pursuant to the authority granted in the Resolutions, and when such
certificates have been delivered to and paid for by the purchasers thereof, and
when all corporate action necessary for issuance of such Preferred Stock has
been taken, including the adoption of a Certificate of Designations relating
thereto, such shares will be validly issued, fully paid and non-assessable.
8. The Deposit Agreements have been duly authorized and, when duly
executed and delivered by the Company pursuant to the authority granted in the
Resolutions, and assuming due authorization, execution and delivery thereof by
the applicable Depositary, will constitute valid and legally binding instruments
of the Company enforceable against the Company in accordance with their
respective terms.
9. The Depositary Shares have been duly authorized and, when the
final terms thereof have been duly established and approved pursuant to the
authority granted in the Resolutions, and when the depositary receipts
representing such Depositary Shares have been duly executed by the Depositary
and delivered to and paid for by the purchasers
<PAGE>
Board of Directors 4 June 15, 1994
thereof, and when all corporate action necessary for issuance of such Depositary
Shares and the underlying Preferred Stock has been taken, such Depositary Shares
will be validly issued and entitled to the benefits of the applicable Deposit
Agreement.
10. The Common Stock (including Common Stock issuable upon conversion
of or exchange for any Security or upon exercise of any Warrant) has been duly
authorized and, when issued and delivered pursuant to the authority granted in
the Resolutions and against payment therefor, will be validly issued, fully paid
and non-assessable.
The opinions set forth above are subject, as to enforcement, to
(i) bankruptcy, insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization, moratorium or other similar laws relating
to or affecting the enforcement of creditors' rights generally, (ii) general
equitable principles (regardless of whether enforcement is considered in a
proceeding in equity or at law) and (iii) provisions of law that require that a
judgment for money damages rendered by a court in the United States be expressed
only in United States dollars.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the use of our name under the heading "Legal
Opinions" in the Prospectus.
Very truly yours,
SHEARMAN & STERLING
JJ/SH/LS
<PAGE>
EXHIBIT 23.1
[Deloitte & Touche Logo]
- ------------------------ -------------------------------------------------------
Two Prudential Plaza Telephone: (312) 946-3000
180 North Stetson Avenue Facsimile: (312) 946-2800
Chicago, Illinois 60601-6779
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
Deere & Company on Form S-3 of our report dated December 8, 1993, appearing in
the Annual Report on Form 10-K of Deere & Company for the year ended October 31,
1993 and to the reference to us under the heading "Experts" in the Prospectus,
which is part of this Registration Statement.
/s/ Deloitte & Touche
DELOITTE & TOUCHE
June 15, 1994
- ---------------
Deloitte Touche
Tohmatsu
International
- ---------------
<PAGE>
Securities Act of 1933 File No. ________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
- --------------------------------------------------------------------------------
------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2)___________
__________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
________________
DEERE & COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE
(State or other jurisdiction of incorporation or organization)
36-2382580
(I.R.S. Employer Identification No.)
JOHN DEERE ROAD
MOLINE, ILLINOIS
(Address of principal executive offices)
61265
(Zip Code)
__________________________________
SENIOR DEBT SECURITIES
(TITLE OF THE INDENTURE SECURITIES)
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington,
D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control with
the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect. (See Exhibit T-1 (Item 12), Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan Bank
(National Association) and The Chase Bank of New York (National
Association) to commence business and a copy of approval of
merger of said corporations, all of which documents are still in
effect. (See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437).
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor is in
default. (Not applicable).
*6. -- The consents of United States institutional trustees required by
Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
_________________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to which
there have been no amendments or changes.
___________________
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 14th day June, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: /s/ Mary Lewicki
------------------------------------
Mary Lewicki
Corporate Trust Officer
_________________
2
<PAGE>
EXHIBIT 7
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of
THE CHASE MANHATTAN BANK, N.A.
of New York in the State of New York, at the close of business on March 31,
1994, published in response to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
CHARTER NUMBER 02370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
<TABLE>
<CAPTION>
ASSETS THOUSANDS
OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin. . . . . . . . . . . . . . . . . . . . . $4,591,256
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,173,036
Held-to-maturity securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .547,237
Available-for-sale securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5,871,767
Federal funds sold and securities purchased under agreements to resell in domestic offices
of the bank and of its Edge and Agreement subsidiaries. and in IBFs:
Federal funds sold. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3,277,510
Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . . . . 40,431
Loans and lease financing receivables:
Loans and leases. net of unearned income. . . . . . . . . . . . . . . . . . . . .$51,008,579
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . . . . . .1,079,989
LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . . . . . . 0
-----------
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . . . . 49,928,590
Assets held in trading accounts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15,548,982
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . .1,626,241
Other real estate owned. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1,082,804
Investments in unconsolidated subsidiaries and associated companies. . . . . . . . . . . . . . . . 64,040
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . .799,111
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .359,509
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4,865,124
-----------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$93,775,638
-----------
-----------
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$31,058,916
Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$11,004,911
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,054,005
-----------
In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . . . . . . . . . . 32,442,645
Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,882,103
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,560,542
-----------
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries,and in IBF's:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2,257,218
Securities sold under agreements to repurchase. . . . . . . . . . . . . . . . . . . . . . . . . 55,951
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . .500,000
Trading liablities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10,215,151
Other borrowed money:
With orignial maturity of one year of less. . . . . . . . . . . . . . . . . . . . . . . . . .2,318,773
With original maturity of more than one year. . . . . . . . . . . . . . . . . . . . . . . . . .662,234
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . . . . . . 41,168
Bank's liability on acceptances, executed and outstanding . . . . . . . . . . . . . . . . . . . .809,183
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2,360,000
Other liabilities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4,643,166
-----------
TOTAL LIABILITIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$87,364,405
-----------
Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . .0
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $911,914
Surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4,390,954
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1,123,632
Net unrealized loss on marketable equity securities. . . . . . . . . . . . . . . . . . . . . . . .(26,509)
Cumulative foreign currency translation adjustments. . . . . . . . . . . . . . . . . . . . . . . . 11,242
-----------
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6,411,233
-----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND
EQUITY CAPITAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .$93,775,638
-----------
-----------
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above-
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Boyle
3
<PAGE>
- --------------------------------------------------------------------------------
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
48 Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
----------------------
DEERE & COMPANY
(Exact name of obligor as specified in its charter)
Delaware 36-2382580
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
John Deere Road
Moline, Illinois 61265-8098
(Address of principal executive offices) (Zip code)
______________________
Subordinated Debt Securities
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE>
1. General information. Furnish the following information as to the Trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
- --------------------------------------------------------------------------------
Name Address
- --------------------------------------------------------------------------------
Superintendent of Banks of the State of 2 Rector Street, New York,
New York N.Y. 10006, and Albany, N.Y.
12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York,
N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20549
New York Clearing House Association New York, New York
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
2. Affiliations with Obligor.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
None. (See Note on page 3.)
16. List of Exhibits.
Exhibits identified in parentheses below, on file with the Commission, are
incorporated herein by reference as an exhibit hereto, pursuant to Rule
7a-29 under the Trust Indenture Act of 1939 (the "Act") and Rule 24 of the
Commission's Rules of Practice.
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No. 33-31019.)
-2-
<PAGE>
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
Trustee of all facts on which to base a responsive answer to Item 2, the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 13th day of June, 1994.
THE BANK OF NEW YORK
By: /s/ Robert F. McIntyre
------------------------------------
Name: Robert F. McIntyre
Title: Assistant Vice President
-4-
<PAGE>
EXHIBIT 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of 48 Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of
business March 31, 1994, published in accordance with a
call made by the Federal Reserve Bank of this District
pursuant to the provisions of the Federal Reserve Act.
<TABLE>
<CAPTION>
Dollar Amounts
ASSETS in Thousands
<S> <C>
Cash and balances due from depos-
itory institutions:
Noninterest-bearing balances and
currency and coin .................. $ 2,984,207
Interest-bearing balances .......... 652,882
Securities:
Held-to-maturity securities ........ 1,554,924
Available-for-sale securities ...... 2,323,498
Federal funds sold in domestic
offices of the bank ................ 861,621
Loans and lease financing
receivables:
Loans and leases, net of unearned
income .................25,419,340
LESS: Allowance for loan and
lease losses ..............736,749
LESS: Allocated transfer risk
reserve .....................29,510
Loans and leases, net of unearned
income, allowance, and reserve 24,653,081
Assets held in trading accounts ...... 2,269,729
Premises and fixed assets (including
capitalized leases) ................ 649,048
Other real estate owned .............. 63,724
Investments in unconsolidated
subsidiaries and associated
companies .......................... 166,985
Customers' liability to this bank on
acceptances outstanding ............ 1,068,405
Intangible assets .................... 83,775
Other assets ......................... 1,519,064
-----------
Total assets ......................... $38,850,943
-----------
LIABILITIES
Deposits:
In domestic offices ................ $19,552,324
Noninterest-bearing .......7,628,562
Interest-bearing .........11,923,762
In foreign offices, Edge and
Agreement subsidiaries, and IBFs ... 9,092,181
Noninterest-bearing ..........58,771
Interest-bearing ..........9,033,410
Federal funds purchased and secu-
rities sold under agreements to re-
purchase in domestic offices of
the bank and of its Edge and
Agreement subsidiaries, and in
IBFs:
Federal funds purchased ............ 1,459,117
Securities sold under agreements
to repurchase .................... 95,459
Demand notes issued to the U.S.
Treasury ........................... 289,163
Trading liabilities .................. 968,864
Other borrowed money:
With original maturity of one year
or less .......................... 896,720
With original maturity of more than
one year ......................... 33,969
Bank's liability on acceptances exe-
cuted and outstanding .............. 1,069,639
Subordinated notes and debentures .... 1,064,780
Other liabilities .................... 1,368,384
-----------
Total liabilities .................... 35,890,600
-----------
EQUITY CAPITAL
Perpetual preferred stock and related
surplus ........................... 75,000
Common stock ........................ 942,284
Surplus ............................. 525,666
Undivided profits and capital
reserves .......................... 1,429,219
Net unrealized holding gains
(losses) on available-for-sale
securities ........................ ( 6,246)
Cumulative foreign currency transla-
tion adjustments .................. ( 5,580)
-----------
Total equity capital ................ 2,960,343
-----------
Total liabilities, limited-life pre-
ferred stock, and equity capital .. $38,850,943
-----------
-----------
</TABLE>
I, Robert E. Keilman, Senior Vice President and
Comptroller of the above-named bank do hereby declare
that this Report of Condition has been prepared in
conformance with the instructions issued by the Board
of Governors of the Federal Reserve System and is true
to the best of my knowledge and belief.
Robert E. Keilman
We, the undersigned directors, attest to the
correctness of this Report of Condition and declare
that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance
with the instructions issued by the Board of Governors
of the Federal Reserve System and is true and correct.
Alan R. Griffith )
Thomas A. Renyi ) Directors
J. Carter Bacot )
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