<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 3, 1999
REGISTRATION NO. 333-
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
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>
ONE JOHN DEERE PLACE
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
ONE JOHN DEERE PLACE
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 LLP
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/
If this Form is filed to register additional securities for any offering
pursuant to Rule 462(b) under the Securities Act of 1933, check the following
box and list the registration statement number of the earlier effective
registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act of 1933, check the following box and list the
registration statement number of the earlier effective regisration statement for
the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434
under the Securities Act of 1933, please check the following box. / /
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* OFFERING PRICE* REGISTRATION FEE
<S> <C> <C> <C> <C>
Debt securities and Warrants to purchase debt
securities...................................... $1,000,000,000** 100% $1,000,000,000 $278,000
</TABLE>
* Estimated for the purpose of computing the registration fee.
** Or, in the event of the issuance of original issue discount securities, such
higher principal amount as may be sold for an initial public offering price
of up to $1,000,000,000.
------------------------------
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. 33-54165 PREVIOUSLY FILED BY THE REGISTRANT ON
FORM S-3 AND DECLARED EFFECTIVE ON JULY 11, 1994. THIS REGISTRATION STATEMENT,
WHICH IS A NEW REGISTRATION STATEMENT, ALSO CONSTITUTES POST-EFFECTIVE AMENDMENT
NO. 1 TO REGISTRATION STATEMENT NO. 33-54165, 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.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 3, 1999
THE INFORMATION IN THIS PROSPECTUS SUPPLEMENT IS NOT COMPLETE AND MAY BE
CHANGED. WE MAY NOT SELL THESE NOTES UNTIL THE REGISTRATION STATEMENT FILED WITH
THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS SUPPLEMENT
IS NOT AN OFFER TO SELL THESE NOTES NOR AN OFFER TO BUY THESE NOTES IN ANY
JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
PROSPECTUS SUPPLEMENT
(TO PROSPECTUS DATED , 1999)
U.S. $1,450,000,000
DEERE & COMPANY
MEDIUM-TERM NOTES, SERIES C
DUE FROM 9 MONTHS TO 30 YEARS FROM DATE OF ISSUE
-------------------
TERMS: We plan to offer and sell the Notes with various terms, including the
following:
- - Ranking as our senior or subordinated indebtedness
- - Stated maturities of 9 months to 30 years from date of issue
- - Redemption and/or repayment provisions, whether mandatory, at our option, at
the option of the holders or none at all
- - Payments in U.S. dollars or one or more foreign currencies
- - Minimum denominations of $1,000 or other specified denominations for foreign
currencies
- - Book-entry (through The Depository Trust Company) or certificated form
- - Interest payments on fixed rate Notes on each March 15 and September 15
- - Interest payments on floating rate Notes on a monthly, quarterly, seminannual
or annual basis
- - Interest at fixed or floating rates, or no interest at all. We may base the
floating interest rate on one or more of the following indices plus or minus a
spread and/or multiplied by a spread multiplier:
- CD rate
- CMT rate
- Commercial paper rate
- Eleventh district cost of funds rate
- Federal funds rate
- LIBOR
- Prime rate
- Treasury rate
- Such other interest basis or interest rate formula as we may specify
in the applicable pricing supplement
We will specify the final terms for each Note, which may be different from
the terms described in this prospectus supplement, in the applicable pricing
supplement.
INVESTING IN THE NOTES INVOLVES CERTAIN RISKS. SEE "RISK FACTORS" ON PAGE S-3.
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED IF THIS
PROSPECTUS SUPPLEMENT, THE ACCOMPANYING PROSPECTUS OR ANY PRICING SUPPLEMENT IS
TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
We may sell the Notes to the Agents as principals for resale at varying or
fixed offering prices or through the Agents as agents using their reasonable
best efforts on our behalf. Unless otherwise specified in the applicable pricing
supplement, the price to the public for the Notes will be 100% of the principal
amount. If we sell all of the Notes, we expect to receive proceeds of between
$1,440,212,500 and $1,448,187,500, after paying the Agents' discounts and
commissions of between $1,812,500 and $9,787,500 and before deducting expenses
payable by us. We may also sell the Notes without the assistance of the Agents
(whether acting as principal or as agent).
-------------------
MERRILL LYNCH & CO. GOLDMAN, SACHS & CO.
------------
The date of this prospectus supplement is , 1999.
<PAGE>
TABLE OF CONTENTS
PROSPECTUS SUPPLEMENT
<TABLE>
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PAGE
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<S> <C>
Risk Factors.............................................................. S-3
About this Prospectus Supplement and the Pricing Supplements.............. S-5
Description of Notes...................................................... S-5
Special Provisions Relating to Foreign Currency Notes..................... S-18
United States Taxation.................................................... S-21
Plan of Distribution...................................................... S-29
</TABLE>
PROSPECTUS
<TABLE>
<CAPTION>
PAGE
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<S> <C>
Where You Can Find More Information....................................... 2
The Company............................................................... 3
Use of Proceeds........................................................... 4
Prospectus................................................................ 4
Prospectus Supplements.................................................... 4
Description of Debt Securities............................................ 4
Description of Debt Warrants.............................................. 19
Plan of Distribution...................................................... 20
Legal Opinions............................................................ 21
Experts................................................................... 21
</TABLE>
------------------------
You should rely only on the information contained in this prospectus
supplement, the accompanying prospectus and any pricing supplement. We have not,
and the Agents have not, authorized any other person to provide you with
different or additional information. If anyone provides you with different or
additional information, you should not rely on it. We are not, and the Agents
are not, making an offer to sell these securities in any jurisdiction where the
offer or sale is not permitted. You should assume that the information appearing
in or incorporated by reference in this prospectus supplement, the accompanying
prospectus and any pricing supplement is accurate as of its date only. Our
business, financial condition, results of operations and prospects may have
changed since such date.
S-2
<PAGE>
RISK FACTORS
Your investment in the Notes is subject to certain risks, especially if the
Notes involve in some way a foreign currency. This prospectus supplement does
not describe all of the risks of an investment in the Notes, whether arising
because the Notes are denominated in a currency other than U.S. dollars or
because the return on the Notes is linked to one or more interest rate or
currency indices or formulas. You should consult your own financial and legal
advisors about the risks entailed by an investment in the Notes and the
suitability of your investment in the Notes in light of your particular
circumstances. The Notes are not an appropriate investment for investors who are
unsophisticated with respect to foreign currency transactions or transactions
involving the type of index or formula used to determine amounts payable. If you
are a non-U.S. resident, you should consult your own legal and financial
advisors with regard to such matters. Before investing in the Notes, you should
consider carefully, among other factors, the matters described below.
EXCHANGE RATES AND EXCHANGE CONTROLS
If you invest in foreign currency Notes and currency indexed Notes, your
investment will be subject to significant risks not associated with investments
in debt instruments denominated in U.S. dollars or U.S. dollar-based indexes.
Such risks include the possibility of significant changes in the rate of
exchange between the U.S. dollar and your payment currency and the imposition or
modification of foreign exchange controls by either the United States or the
applicable foreign governments. We have no control over the factors that
generally affect these risks, such as economic, financial and political events
and the supply and demand for the applicable currencies. In recent years, rates
of exchange between the U.S. dollar and certain foreign currencies have been
volatile and such volatility may continue in the future. Past fluctuations in
any particular exchange rate are not necessarily indicative, however, of
fluctuations that may occur in the future. Fluctuations in exchange rates
against the U.S. dollar could result in a decrease in the U.S. dollar-equivalent
yield of your foreign currency Notes or currency indexed Notes, in the U.S.
dollar-equivalent value of the principal or any premium payable at maturity of
your Notes and, generally, in the U.S. dollar-equivalent market value of your
Notes. We may further describe the currency risks with respect to your foreign
currency Notes or currency indexed Notes in the applicable pricing supplement.
Foreign exchange rates can either float or be fixed by sovereign
governments. Governments, however, often do not voluntarily allow their
currencies to float freely in response to economic forces. Instead, governments
use a variety of techniques, such as intervention by that country's central
bank, or the imposition of regulatory controls or taxes, to affect the exchange
rate of their currencies. Governments may also issue a new currency to replace
an existing currency or alter the exchange rate or relative exchange
characteristics by the devaluation or revaluation of a currency. Thus, an
important risk in purchasing foreign currency Notes or currency indexed Notes
for U.S. dollar-based investors is that their U.S. dollar-equivalent yields
could be affected by governmental actions that could change or interfere with
currency valuation that was previously freely determined, fluctuations in
response to other market forces and the movement of currencies across borders.
We will make no adjustment or change in the terms of the foreign currency Notes
or currency indexed Notes if exchange rates become fixed, or if any devaluation
or revaluation or imposition of exchange or other regulatory controls or taxes
occur, or other developments, affecting the U.S. dollar or any applicable
currency occur.
The paying agent will make all calculations relating to your foreign
currency Notes or currency indexed Notes. All such determinations will, in the
absence of clear error, be binding on holders of the Notes.
On January 1, 1999, Austria, Belgium, Finland, France, Germany, Ireland,
Italy, Luxembourg, The Netherlands, Portugal and Spain (the "Participating
States") commenced a new stage of economic and monetary union and introduced a
single currency (the "euro"), which is legal tender in the Participating States
in substitution for the national currencies of those countries. Bills and coins
denominated in euro will be circulated for the first time on January 1, 2002 and
for a three-year transitional period
S-3
<PAGE>
until December 31, 2001, the current currencies of the Participating States
remain legal tender in those countries as a subdivision of the euro. The
conversion rate between the current currencies of each Participating State and
the euro have been fixed irrevocably by the Council of the European Union on
January 1, 1999. The Council of the European Union has adopted regulations
providing specific rules for the introduction of the euro.
For Notes with a specified currency other than U.S. dollars we will include
in the applicable pricing supplement information concerning historical exchange
rates for that currency against the U.S. dollar and a brief description of any
relevant exchange controls.
FOREIGN CURRENCY JUDGMENTS
The Indentures and the Notes, except to the extent that we specify otherwise
in a pricing supplement, will be governed by, and construed in accordance with,
the laws of the State of New York. As a holder of Notes, you may bring an action
based upon an obligation payable in a currency other than U.S. dollars in courts
in the United States. However, courts in the United States have not customarily
rendered judgments for money damages denominated in any currency other than U.S.
dollars. In addition, it is not clear whether in granting such judgment, the
rate of conversion would be determined with reference to the date of default,
the date judgment is rendered or any other date. The Judiciary Law of the State
of New York provides, however, that an action based upon an obligation payable
in a currency other than U.S. dollars will be rendered in the foreign currency
of the underlying obligation and converted into U.S. dollars at a rate of
exchange prevailing on the date the judgment or decree is entered. In these
cases, holders of foreign currency Notes would bear the risk of exchange rate
fluctuations between the time the dollar amount of this judgment is calculated
and the time U.S. dollars were paid to the holders.
RISKS ASSOCIATED WITH INDEXED NOTES
If you invest in indexed Notes, your investment will be subject to
significant risks that are not associated with an investment in a conventional
fixed rate debt security. Indexation of the interest rate of a Note may result
in lower (or no) interest compared to a conventional fixed rate debt security
issued at the same time. Indexation of the principal of and/or premium on a Note
may result in the payment of a lower amount of principal and/or premium (or no
principal and/or premium) compared to the original purchase price of the Note.
The value of an index can fluctuate based on a number of interrelated factors,
including economic, financial and political events over which we have no
control. Additionally, if the formula that we specify to determine the amount of
principal, premium and/or interest payable with respect to indexed Notes
contains a multiple or leverage factor, that feature will magnify the effect of
any change in the index. You should not view the historical experience of an
index as an indication of its future performance.
CREDIT RATINGS
The credit ratings on the Notes may not reflect the potential impact of all
risks related to structure and other factors on the value of the Notes. In
addition, real or anticipated changes in our credit ratings generally will
affect the market value of the Notes.
S-4
<PAGE>
ABOUT THIS PROSPECTUS SUPPLEMENT AND THE PRICING SUPPLEMENTS
We intend to use this prospectus supplement, the attached prospectus and a
related pricing supplement to offer our Notes from time to time.
This prospectus supplement provides you with certain terms of the Notes and
supplements the description of the Debt Securities contained in the attached
prospectus. If information in this prospectus supplement is inconsistent with
the prospectus, this prospectus supplement will replace the inconsistent
information in the prospectus.
Each time we issue Notes, we will prepare a pricing supplement that will
contain additional terms of the offering and the specific description of the
Notes offered. The pricing supplement also may add, update or change information
in this prospectus supplement or the attached prospectus, including provisions
describing the calculation of interest and the method of making payments under
the terms of a Note. The flexibility available to us to set or negotiate
individualized terms for Notes means that there will be transactions,
particularly with Indexed Notes, that are quite complex. Frequently, the terms
of the Notes differ from the terms that we describe in this prospectus
supplement. Any information in the pricing supplement that is inconsistent with
this prospectus supplement will replace the inconsistent information in this
prospectus supplement.
DESCRIPTION OF NOTES
The following summary of certain terms of the Notes is not complete. For
additional terms of the Notes, you should also read the Indentures under which
the Notes will be issued, which are exhibits to our shelf registration statement
(File No. 333- ). The following description of the Notes offered supplements
and, to the extent the descriptions are inconsistent, replaces the description
of the general terms and provisions of the Debt Securities that is found under
the heading "Description of Debt Securities" in the prospectus that is attached.
The following descriptions will apply to each Note unless otherwise specified in
the pricing supplement.
GENERAL
We will offer the Notes on a continuous basis as Senior Notes or
Subordinated Notes.
The Notes are our direct, unsecured obligations. The total initial public
offering price of the Notes that we may offer using this prospectus supplement,
together with any debt warrants, is $1,450,000,000 or its equivalent in one or
more foreign currencies or composite currencies.
Senior Notes are "Senior Securities", as described in the attached
prospectus, and rank equally with all of our unsecured senior debt. Subordinated
Notes are "Subordinated Securities", as described in the attached prospectus,
and are junior in right of payment to all Senior Indebtedness.
The Senior Notes offered by this prospectus supplement will form a part of
the Medium-Term Notes, Series C, Due from 9 Months to 30 Years from Date of
Issue issued under the Senior Indenture. At January 31, 1999, our total
consolidated Senior Indebtedness and Subordinated Indebtedness was $8.997
billion and $150.3 million, respectively. Included in such amounts are senior
and subordinated indebtedness of John Deere Capital Corporation, our
wholly-owned subsidiary, totaling $5.602 billion and $150 million, respectively.
At the date of this Prospectus Supplement, we have issued $50 million
Medium-Term Notes, Series C, under the Senior Indenture.
The Subordinated Notes that we offer by this prospectus supplement will form
a part of the Medium-Term Notes, Series C, issued under the Subordinated
Indenture. At the date of this prospectus supplement, we have not issued any
Medium-Term Notes, Series C, under the Subordinated Indenture.
The Indentures do not limit the amount of our Notes or other debt
obligations that may be issued thereunder.
The Notes are not subject to any sinking fund.
S-5
<PAGE>
The defeasance and covenant defeasance provisions of the Indentures
described under "Description of Debt Securities -- Provisions Applicable to Both
the Senior and Subordinated Indentures -- Defeasance" in the attached prospectus
will apply to the Notes.
Unless we specify otherwise in the applicable pricing supplement, we will
denominate the Notes in U.S. dollars and we will make all payments on the Notes
in U.S. dollars. For further information regarding Foreign Currency Notes, see
"Risk Factors" and "Special Provisions Relating To Foreign Currency Notes".
You must pay the purchase price of the Notes in immediately available funds.
As used in this prospectus supplement, "Business Day" means any day, other
than a Saturday or Sunday, that is neither a legal holiday nor a day on which
commercial banks are authorized or required by law, regulation or executive
order to close in The City of New York; provided, however, that, with respect to
foreign currency Notes, such day is also not a day on which commercial banks are
authorized or required by law, regulation or executive order to close in the
Principal Financial Center (as defined) of the country issuing the specified
currency (or, if the specified currency is the euro, such day is also a day on
which the Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open); provided, further, that, with respect to Notes as to
which LIBOR is an applicable interest rate basis, such day is also a London
Business Day.
"London Business Day" means a day on which commercial banks are open for
business (including dealings in the designated LIBOR Currency) in London.
"Principal Financial Center" means (1) the capital city of the country
issuing the specified currency or (2) the capital city of the country to which
the designated LIBOR Currency relates, as applicable, except, in the case of (1)
or (2) above, that with respect to United States dollars, Australian dollars,
Canadian dollars, Deutsche marks, Dutch guilders, Portuguese escudos, South
African rand and Swiss francs, the "Principal Financial Center" shall be The
City of New York, Sydney and (solely in the case of the specified currency)
Melbourne, Toronto, Frankfurt, Amsterdam, London (solely in the case of the
designated LIBOR Currency), Johannesburg and Zurich, respectively.
The authorized denominations of Notes denominated in U.S. dollars will be
integral multiples of $1,000. We will designate the authorized denominations of
Foreign Currency Notes in the applicable pricing supplement.
BOOK-ENTRY DEBT SECURITIES
Except under certain circumstances, we will issue the Notes in book-entry
form only. This means that we will not issue actual Notes or certificates to
you. Instead, we will issue a Global Security representing Notes with similar
terms and such Global Security will be held by The Depository Trust Company
("DTC") or its nominee. In order to own a beneficial interest in a Note, you
must be an institution that has an account with DTC or have an account with an
institution, such as a brokerage firm, that has an account with DTC. For a more
complete description of Book-Entry Debt Securities, see "Description of Debt
Securities--Book-Entry Debt Securities" in the prospectus.
Payments of principal of, premium if any, and interest on the Notes
represented by a Global Security will be made in same-day funds to DTC in
accordance with arrangements then in effect between the applicable Trustee and
DTC.
INTEREST AND INTEREST RATES
GENERAL
Each Note will begin to accrue interest from the date it is originally
issued. In the related pricing supplement, we will designate each Note as a
Fixed Rate Note, a Floating Rate Note, an Amortizing Note or an Indexed Note and
describe the method of determining the interest rate, including any Spread
and/or Spread Multiplier. For an Indexed Note, we will also describe in the
related pricing
S-6
<PAGE>
supplement the method for calculating and paying principal and interest. For a
Floating Rate Note or Indexed Note we may also specify a maximum and a minimum
interest rate in the related pricing supplement.
We may issue a Note as a Fixed Rate Note or a Floating Rate Note or as a
Note that combines fixed and floating rate terms.
Interest rates on the Notes that we offer may differ depending upon, among
other things, the aggregate principal amount of Notes purchased in any single
transaction. We may offer Notes with similar variable terms but different
interest rates, as well as Notes with different variable terms, concurrently to
different investors. We may, from time to time, change the interest rates or
formulas and other terms of Notes, but no such change will affect any Note
already issued or as to which an offer to purchase has been accepted.
FIXED RATE NOTES
In the pricing supplement for Fixed Rate Notes we will specify a fixed
interest rate payable semi-annually in arrears on each March 15 and September 15
(each an "Interest Payment Date") and the Regular Record Date for Fixed Rate
Notes will be March 1 and September 1, respectively. Interest on Fixed Rate
Notes will be computed on the basis of a 360-day year of twelve 30-day months.
If the maturity date or an Interest Payment Date for any Fixed Rate Note is not
a Business Day, we will pay principal, premium, if any, and interest for that
Note on the next Business Day, and no interest will accrue from and after the
maturity date or Interest Payment Date.
ORIGINAL ISSUE DISCOUNT NOTES
We may issue original issue discount Notes (including zero coupon Notes)
("OID Notes"), which are Notes issued at a discount from the principal amount
payable at the maturity date. An OID Note may not have any periodic interest
payments. For OID Notes, interest normally accrues during the life of the Note
and is paid at the maturity date or upon earlier redemption. Upon a redemption,
repayment or acceleration of the maturity of an OID Note, the amount payable
will be determined as set forth under "--Optional Redemption, Repayment and
Repurchase". Normally this amount is less than the amount payable at the
maturity date.
AMORTIZING NOTES
We may issue amortizing Notes, which are Fixed Rate Notes for which combined
principal and interest payments are made in installments over the life of each
Note ("Amortizing Notes"). We apply payments on Amortizing Notes first to
interest due and then to reduce the unpaid principal amount. We will include a
table setting forth repayment information in the related pricing supplement for
an Amortizing Note.
FLOATING RATE NOTES
Each Floating Rate Note will have an interest rate basis or formula. We may
base that formula on:
- the CD Rate;
- the CMT Rate;
- the Commercial Paper Rate;
- the Eleventh District Cost of Funds Rate;
- the Federal Funds Rate;
- LIBOR;
- the Prime Rate;
S-7
<PAGE>
- the Treasury Rate; or
- another negotiated interest rate basis or formula.
In the pricing supplement we also will indicate any Spread and/or Spread
Multiplier, which would be applied to the interest rate formula to determine the
interest rate. Any Floating Rate Note may have a maximum or minimum interest
rate limitation. In addition to any maximum interest rate limitation, the
interest rate on the Floating Rate Notes will in no event be higher than the
maximum rate permitted by New York law, as the same may be modified by United
States law for general application.
We will appoint a calculation agent to calculate interest rates on the
Floating Rate Notes. Unless we identify a different party in the pricing
supplement, the paying agent will be the calculation agent for each Note. In
most cases, a Floating Rate Note will have a specified "Interest Reset Date",
"Interest Determination Date" and "Calculation Date" associated with it. An
Interest Reset Date is the date on which the interest rate on the Note is
subject to change. An Interest Determination Date is the date as of which the
new interest rate is determined for a particular Interest Reset Date, based on
the applicable interest rate basis or formula as of that Interest Determination
Date. The Calculation Date is the date by which the calculation agent will
determine the new interest rate that became effective on a particular Interest
Reset Date based on the applicable interest rate basis or formula on the
Interest Determination Date.
CHANGE OF INTEREST RATE. We may reset the interest rate on each Floating
Rate Note daily, weekly, monthly, quarterly, semi-annually, annually or on some
other basis that we specify. The Interest Reset Date will be:
- for Notes with interest that resets daily, each Business Day;
- for Notes (other than Treasury Rate Notes) with interest that resets
weekly, Wednesday of each week;
- for Treasury Rate Notes with interest that resets weekly, Tuesday of each
week;
- for Notes with interest that resets monthly, the third Wednesday of each
month;
- for Notes with interest that resets quarterly, the third Wednesday of
March, June, September and December of each year;
- for Notes with interest that resets semi-annually, the third Wednesday of
each of the two months of each year indicated in the applicable pricing
supplement; and
- for Notes with interest that resets annually, the third Wednesday of the
month of each year indicated in the applicable pricing supplement.
The related pricing supplement will describe the initial interest rate or
interest rate formula on each Note. That rate is effective until the following
Interest Reset Date. Thereafter, the interest rate will be the rate determined
on each Interest Determination Date. Each time a new interest rate is
determined, it becomes effective on the subsequent Interest Reset Date. If any
Interest Reset Date is not a Business Day, then the Interest Reset Date is
postponed to the next Business Day, except, in the case of a LIBOR Note, in
which case, if the next Business Day is in the next calendar month, the Interest
Reset Date is the immediately preceding Business Day.
DATE INTEREST RATE IS DETERMINED. The Interest Determination Date for all
Floating Rate Notes (except LIBOR Notes, Treasury Rate Notes and Eleventh
District Cost of Funds Rate Notes) will be the second Business Day before the
Interest Reset Date. The Interest Determination Date in the case of LIBOR Notes
will be the second London Business Day immediately preceding the applicable
Interest Reset Date, unless the Designated LIBOR Currency is British pounds
sterling, in which case the "Interest Determination Date" will be the applicable
Interest Reset Date.
The Interest Determination Date for Treasury Rate Notes will be the day of
the week in which the Interest Reset Date falls on which Treasury bills of the
same Index Maturity are normally auctioned.
S-8
<PAGE>
Treasury bills are usually sold at auction on Monday of each week, unless that
day is a legal holiday, in which case the auction is usually held on Tuesday.
Sometimes, the auction is held on the preceding Friday. If an auction is held on
the preceding Friday, that day will be the Interest Determination Date relating
to the Interest Reset Date occurring in the next week. If an auction date falls
on any Interest Reset Date then the Interest Reset Date will instead be the
first Business Day immediately following the auction date.
The Interest Determination Date for an Eleventh District Cost of Funds Rate
Note is the last Business Day of the month immediately preceding the applicable
Interest Reset Date in which the Federal Home Loan Bank of San Francisco
published the index.
CALCULATION DATE. Unless we specify a different date in a pricing
supplement, the "Calculation Date," if applicable, relating to an Interest
Determination Date will be the earlier of
(1) the tenth calendar day after such Interest Determination Date or, if
such day is not a Business Day, the next succeeding Business Day, or
(2) the Business Day immediately preceding the relevant Interest Payment
Date or the maturity date, as the case may be.
Upon the request of the beneficial holder of any Floating Rate Note, the
calculation agent will provide the interest rate then in effect and, if
different, the interest rate that will become effective on the next Interest
Reset Date for the Floating Rate Note.
PAYMENT OF INTEREST. We will pay installments of interest on Floating Rate
Notes as follows:
- for Notes with interest payable monthly, on the third Wednesday of each
month;
- for Notes with interest payable quarterly, on the third Wednesday of
March, June, September, and December of each year;
- for Notes with interest payable semi-annually, on the third Wednesday of
each of the two months specified in the applicable pricing supplement;
- for Notes with interest payable annually, on the third Wednesday of the
month specified in the applicable pricing supplement (each of the above an
"Interest Payment Date"); and
- at maturity, redemption or repurchase.
Each interest payment on a Floating Rate Note will include interest accrued
from, and including, the issue date or the last Interest Payment Date, as the
case may be, to, but excluding, the following Interest Payment Date or the
maturity date, as the case may be.
We will pay installments of interest on Floating Rate Notes beginning on the
first Interest Payment Date after its issue date to holders of record on the
corresponding Regular Record Date. Unless we otherwise specify in the applicable
pricing supplement, the Regular Record Date for a Floating Rate Note will be on
the 15th day (whether or not a Business Day) next preceding the Interest Payment
Date. If an Interest Payment Date (but not the maturity date) is not a Business
Day (except for LIBOR Notes), we will postpone payment until the next Business
Day. In the case of LIBOR Notes, such Interest Payment Date will be the
preceding Business Day if the next Business Day is in the next calendar month.
If the maturity date of any Floating Rate Note is not a Business Day, principal,
premium, if any, and interest for that Note will be paid on the next Business
Day, and no interest will accrue from and after the maturity date.
We will calculate accrued interest on a Floating Rate Note by multiplying
the principal amount of a Note by an accrued interest factor. The accrued
interest factor is the sum of the interest factors calculated for each day in
the period for which accrued interest is being calculated. The interest factor
for each day is computed by dividing the interest rate in effect on that day by
(1) the actual number of days in the year, in the case of Treasury Rate Notes or
CMT Rate Notes, or (2) 360, in the case of other Floating Rate Notes. All
percentages resulting from any calculation are rounded to the nearest
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one hundred-thousandth of a percentage point, with five one-millionths of a
percentage point rounded upward. For example, 9.876545% (or .09876545) will be
rounded to 9.87655% (or .0987655). Dollar amounts used in the calculation are
rounded to the nearest cent (with one-half cent being rounded upward).
CALCULATION OF INTEREST. In this Section, we explain how we will calculate
the interest rate basis on different types of Floating Rate Notes.
CD RATE NOTES. The "CD Rate" for any Interest Determination Date is the rate
on that date for negotiable certificates of deposit having the Index Maturity
described in the related pricing supplement, as published in H.15(519) prior to
3:00 P.M., New York City time, on the Calculation Date, for that Interest
Determination Date under the heading "CDs (secondary market)". The "Index
Maturity" is the period to maturity of the instrument or obligation with respect
to which the related interest rate basis or formulae will be calculated.
The calculation agent will observe the following procedures if the CD Rate
cannot be determined as described above:
- If the above rate is not published in H.15(519) by 3:00 P.M., New York
City time, on the Calculation Date, the CD Rate will be the rate on that
Interest Determination Date for negotiable certificates of deposit of the
Index Maturity described in the pricing supplement as published in H.15
Daily Update, or such other recognized electronic source used for the
purpose of displaying such rate, under the caption "CDs (secondary
market)".
- If that rate is not published in H.15(519), H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the
Calculation Date, then the calculation agent will determine the CD Rate to
be the average of the secondary market offered rates as of 10:00 A.M., New
York City time, on that Interest Determination Date, quoted by three
leading nonbank dealers of negotiable U.S. dollar certificates of deposit
in New York City for negotiable certificates of deposit in a denomination
of $5,000,000 of major United States money-center banks of the highest
credit standing (in the market for negotiable certificates of deposit)
with a remaining maturity closest to the Index Maturity described in the
pricing supplement. The calculation agent will select the three dealers
referred to above.
- If fewer than three dealers are quoting as mentioned above, the CD Rate
will remain the CD Rate then in effect on that Interest Determination
Date.
"H.15(519)" means the weekly statistical release designated as such, or any
successor publication, published by the Board of Governors of the Federal
Reserve System.
"H.15 Daily Update" means the daily update of H.15(519), available through
the world-wide-web site of the Board of Governors of the Federal Reserve System
at http://www.bog.frb.fed.us/releases/ h15/update, or any successor site or
publication.
COMMERCIAL PAPER RATE NOTES. The "Commercial Paper Rate" for any Interest
Determination Date is the Money Market Yield of the rate on that date for
commercial paper having the Index Maturity described in the related pricing
supplement, as published in H.15(519) prior to 3:00 P.M., New York City time, on
the Calculation Date for that Interest Determination Date under the heading
"Commercial Paper -- Nonfinancial".
The calculation agent will observe the following procedures if the
Commercial Paper Rate cannot be determined as described above:
- If the above rate is not published in H.15(519) by 3:00 P.M., New York
City time, on the Calculation Date, the Commercial Paper Rate will be the
Money Market Yield of the rate on that Interest Determination Date for
commercial paper having the Index Maturity described in the pricing
supplement, as published in H.15 Daily Update, or such other recognized
electronic
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source used for the purpose of displaying such rate, under the caption
"Commercial Paper -- Nonfinancial".
- If that rate is not published in H.15(519), H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the
Calculation Date, then the calculation agent will determine the Commercial
Paper Rate to be the Money Market Yield of the average of the offered
rates of three leading dealers of US dollar commercial paper in New York
City as of 11:00 A.M., New York City time, on that Interest Determination
Date for commercial paper having the Index Maturity described in the
pricing supplement placed for an industrial issuer whose bond rating is
"Aa", or the equivalent, from a nationally recognized securities rating
organization. The calculation agent will select the three dealers referred
to above.
- If fewer than three dealers selected by the calculation agent are quoting
as mentioned above, the Commercial Paper Rate will remain the Commercial
Paper Rate then in effect on that Interest Determination Date.
"Money Market Yield" means a yield (expressed as a percentage) calculated in
accordance with the following formula:
<TABLE>
<S> <C> <C> <C> <C>
D X 360
Money Market Yield = -------------- X 100
360 - (D X M)
</TABLE>
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal, and "M" refers to the actual
number of days in the reset period for which interest is being calculated.
LIBOR NOTES. On each Interest Determination Date, the calculation agent will
determine LIBOR as follows:
- If the pricing supplement specifies "LIBOR Telerate", LIBOR on any
Interest Determination Date will be the rate for deposits in the LIBOR
Currency having the Index Maturity described in the related pricing
supplement on the applicable Interest Reset Date, as such rate appears on
the Designated LIBOR Page as of 11:00 A.M., London time, on that Interest
Determination Date.
- If the pricing supplement specifies "LIBOR Reuters", LIBOR on any Interest
Determination Date will be the average of the offered rates for deposits
in the LIBOR Currency having the Index Maturity described in the related
pricing supplement on the applicable Interest Reset Date, as such rates
appear on the Designated LIBOR Page as of 11:00 A.M., London time, on that
Interest Determination Date, if at least two such offered rates appear on
the Designated LIBOR Page.
- If the pricing supplement does not specify "LIBOR Telerate" or "LIBOR
Reuters," the LIBOR Rate will be LIBOR Telerate. In addition, if the
Designated LIBOR Page by its terms provides only for a single rate, that
single rate will be used regardless of the foregoing provisions requiring
more than one rate.
On any Interest Determination Date on which fewer than the required number of
applicable rates appear or no rate appears on the applicable Designated LIBOR
Page, the calculation agent will determine LIBOR as follows:
- LIBOR will be determined on the basis of the offered rates at which
deposits in the LIBOR Currency having the Index Maturity described in the
related pricing supplement on the Interest Determination Date and in a
principal amount that is representative of a single transaction in that
market at that time are offered by four major banks in the London
interbank market at approximately 11:00 A.M., London time, on the Interest
Determination Date to prime banks in the London interbank market. The
calculation agent will select the four banks and request the principal
London office of each of those banks to provide a quotation of its rate
for deposits in
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the LIBOR Currency. If at least two quotations are provided, LIBOR for
that Interest Determination Date will be the average of those quotations.
- If fewer than two quotations are provided as mentioned above, LIBOR will
be the average of the rates quoted by three major banks in the Principal
Financial Center selected by the calculation agent at approximately 11:00
A.M. in the Principal Financial Center, on the Interest Determination Date
for loans to leading Europeans banks in the LIBOR Currency having the
Index Maturity designated in the pricing supplement and in a principal
amount that is representative for a single transaction in the LIBOR
Currency in that market at that time. The calculation agent will select
the three banks referred to above.
- If fewer than three banks selected by the calculation agent are quoting as
mentioned above, LIBOR will remain LIBOR then in effect on that Interest
Determination Date.
"LIBOR Currency" means the currency specified in the applicable pricing
supplement as to which LIBOR shall be calculated or, if no such currency is
specified in the applicable pricing supplement, United States dollars.
"Designated LIBOR Page" means:
- if the pricing supplement specifies "LIBOR Reuters", the display on the
Reuter Monitor Money Rates Service (or any successor service) on the page
specified in such pricing supplement (or any other page as may replace
such page on such service) for the purpose of displaying the London
interbank rates of major banks for the LIBOR Currency; or
- if the pricing supplement specifies "LIBOR Telerate" or neither "LIBOR
Reuters" nor "LIBOR Telerate" is specified in the applicable pricing
supplement as the method of calculating LIBOR, the display on Bridge
Telerate, Inc. (or any successor service, "Telerate") on the page
specified in such pricing supplement (or any other page as may replace
such page on such service) for the purpose of displaying the London
interbank rates of major banks for the LIBOR Currency.
FEDERAL FUNDS RATE NOTES. The "Federal Funds Rate" for any Interest
Determination Date is the rate on that date for Federal Funds, as published in
H.15(519) prior to 3:00 P.M., New York City time, on the Calculation Date for
that Interest Determination Date under the heading "Federal Funds (Effective)",
as such rate is displayed on Telerate on page 120 (or any other page as may
replace such page on such service) ("Telerate Page 120").
The calculation agent will follow the following procedures if the Federal
Funds Rate cannot be determined as described above:
- If the above rate is not published in H.15(519) by 3:00 P.M., New York
City time, on the Calculation Date, the Federal Funds Rate will be the
rate on that Interest Determination Date, as published in H.15 Daily
Update, or such other recognized electronic source used for the purpose of
displaying such rate, under the caption "Federal Funds (Effective)".
- If that rate does not appear on Telerate Page 120 or is not published in
H.15(519), H.15 Daily Update or another recognized electronic source by
3:00 P.M., New York City time, on the Calculation Date, then the
calculation agent will determine the Funds Rate to be the average of the
rates for the last transaction in overnight Federal Funds quoted by three
leading brokers of Federal Funds transactions in New York City as of 9:00
A.M., New York City time, on that Interest Determination Date. The
calculation agent will select the three brokers referred to above.
- If fewer than three brokers selected by the calculation agent are quoting
as mentioned above, the Federal Funds Rate will be the Federal Funds Rate
then in effect on that Interest Determination Date.
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PRIME RATE NOTES. The "Prime Rate" for any Interest Determination Date is
the prime rate or base lending rate on that date, as published in H.15(519) by
3:00 P.M., New York City time, on the Calculation Date for that Interest
Determination Date under the heading "Bank Prime Loan" or, if not published by
3:00 P.M., New York City time, on the related Calculation Date, the rate on such
Interest Determination Date as published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of displaying such rate, under
the caption "Bank Prime Loan."
The calculation agent will follow the following procedures if the Prime Rate
cannot be determined as described above:
- If the rate is not published in H.15(519) H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the
Calculation Date, then the calculation agent will determine the Prime Rate
to be the average of the rates of interest publicly announced by each bank
that appears on the Reuters screen designated as "US Prime 1" as that
bank's prime rate or base lending rate as in effect for that Interest
Determination Date.
- If at least one rate but fewer than four rates appear on the Reuters
screen US Prime 1 on the Interest Determination Date, then on the Prime
Rate will be the average of the prime rates or base lending rates quoted
(on the basis of the actual number of days in the year divided by a
360-day year) as of the close of business on the Interest Determination
Date by three major money center banks in the City of New York selected by
the calculation agent.
- If the banks selected by the calculation agent are not quoting as
mentioned above, the Prime Rate will remain the Prime Rate then in effect
on the Interest Determination Date.
TREASURY RATE NOTES. The "Treasury Rate" for any Interest Determination Date
is the rate set at the auction of direct obligations of the United States
("Treasury bills") having the Index Maturity described in the related pricing
supplement under the caption "INVESTMENT RATE" on the display on Telerate on
page 56 (or any other page as may replace such page on such service) ("Telerate
Page 56") or page 57 (or any other page as may replace such page on such
service) ("Telerate Page 57") by 3:00 P.M., New York City time, on the
Calculation Date for that Interest Determination Date.
The calculation agent will follow the following procedures if the Treasury
Rate cannot be determined as described above:
- If the rate is not so published by 3:00 P.M., New York City time, on the
Calculation Date, the Treasury Rate will be the Bond Equivalent Yield of
the auction rate of such Treasury bills as published in H.15 Daily Update,
or such recognized electronic source used for the purpose of displaying
such rate, under the caption "U.S. Government Securities Treasury
Bills/Auction High."
- If the rate is not so published by 3:00 P.M., New York City time, on the
Calculation Date, the Treasury Rate will be the Bond Equivalent Yield of
the auction rate of such Treasury bills as otherwise announced by the
United States Department of Treasury.
- If the results of the most recent auction of Treasury bills having the
Index Maturity described in the pricing supplement are not published or
announced as described above by 3:00 P.M., New York City time, on the
Calculation Date, or if no auction is held on the Interest Determination
Date, then the Treasury Rate will be the Bond Equivalent Yield on such
Interest Determination Date of Treasury bills having the Index Maturity
specified in the applicable pricing supplement as published in H.15(519)
under the caption "U.S. Government securities/Treasury bills/Secondary
market" or, if not published by 3:00 P.M., New York City time, on the
related Calculation Date, the rate on such Interest Determination Date of
such Treasury Bills as published in H.15 Daily Update, or such other
recognized electronic source used for the purpose of displaying such rate,
under the caption "U.S. Government securities/Treasury bills/Secondary
market."
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- If such rate is not published in H.15(519) H.15 Daily Update or another
recognized electronic source by 3:00 P.M., New York City time, on the
related Calculation Date, then the calculation agent will determine the
Treasury Rate to be the Bond Equivalent Yield of the average of the
secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date of three leading primary U.S.
government securities dealers (which may include the Agents or their
affiliates) for the issue of Treasury bills with a remaining maturity
closest to the Index Maturity described in the related pricing supplement.
The calculation agent will select the three dealers referred to above.
- If fewer than three dealers selected by the calculation agent are quoting
as mentioned above, the Treasury Rate will remain the Treasury Rate then
in effect on that Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage) calculated
in accordance with the following formula:
<TABLE>
<S> <C> <C> <C> <C>
D X N
Bond Equivalent Yield = -------------- X 100
360 - (D X M)
</TABLE>
where "D" refers to the applicable per annum rate for Treasury bills quoted on a
bank discount basis, "N" refers to 365 or 366, as the case may be, and "M"
refers to the actual number of days in the applicable Interest Reset Period.
CMT RATE NOTES. The "CMT Rate" for any Interest Determination Date is the
rate displayed on the Designated CMT Telerate Page by 3:00 P.M., New York City
time, on the Calculation Date for that Interest Determination Date under the
caption " ... Treasury Constant Maturities ... Federal Reserve Board Release
H.15 ... Mondays Approximately 3:45 P.M.," under the column for the Index
Maturity described in the related pricing supplement for:
(1) if the Designated CMT Telerate Page is 7051, the rate on such Interest
Determination Date; or
(2) if the Designated CMT Telerate Page is 7052, the weekly or monthly
average for the week, or the month, specified in the related pricing
supplement, ended immediately preceding the week or month in which the
related Interest Determination Date occurs.
The calculation agent will follow the following procedures if the CMT Rate
cannot be determined as described above:
- If the rate is not displayed on the relevant page by 3:00 P.M., New York
City time, on the Calculation Date, then the CMT Rate will be the Treasury
constant maturity rate for the Designated CMT Maturity Index, as published
in H.15(519).
- If that rate is not published in H.15(519) by 3:00 P.M., New York City
time, on the Calculation Date, then the CMT Rate will be the Treasury
constant maturity rate (or other United States Treasury rate) for the
Designated CMT Maturity Index for the Interest Determination Date as may
then be published by either the Board of Governors of the Federal Reserve
System or the United States Department of the Treasury that the
calculation agent determines to be comparable to the rate formerly
displayed on the Designated CMT Telerate Page and published in H.15(519).
- If that information is not provided by 3:00 P.M., New York City time, on
the Calculation Date, then the calculation agent will determine the CMT
Rate to be a yield to maturity based on the average of the secondary
market closing offered rates, as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date reported, according to their
written records, by three leading primary United States government
securities dealers (each, a "Reference Dealer") in New York City. The
calculation agent will select five Reference Dealers and will eliminate
the highest quotation (or, in the event of overlap, one of the highest
quotations) and the lowest quotation (or, in the event of overlap, one of
the lowest quotations), for the most recently issued
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direct noncallable fixed rate obligations of the United States ("Treasury
Notes") with an original maturity of approximately the Designated CMT
Maturity Index and a remaining term to maturity of not less than the
Designated CMT Maturity Index minus one year.
- If the calculation agent cannot obtain three Treasury Note quotations, the
calculation agent will determine the CMT Rate to be a yield to maturity
based on the average of the secondary market offered rates as of
approximately 3:30 P.M., New York City time, on the Interest Determination
Date of three Reference Dealers in New York City (selected using the same
method described above) for Treasury Notes with an original maturity of
the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated
CMT Maturity Index and in an amount of at least $100,000,000. If two
Treasury Notes with an original maturity have remaining terms to maturity
equally close to the Designated CMT Maturity Index, the calculation agent
will obtain quotations for the Treasury Note with the shorter remaining
term to maturity.
- If three or four (but not five) Reference Dealers are quoting as described
above, then the CMT Rate will be based on the average of the offered rates
obtained and neither the highest nor the lowest of those quotations will
be eliminated.
- If fewer than three Reference Dealers selected by the calculation agent
are quoting as described above, the CMT Rate will remain the CMT Rate then
in effect on the Interest Determination Date.
"Designated CMT Telerate Page" means the display on Telerate, on the page
specified in the applicable pricing supplement (or any other page as may replace
such page on such service) for the purpose of displaying Treasury Constant
Maturities as reported in H.15(519) or, if no such page is specified in the
applicable pricing supplement, page 7052.
"Designated CMT Maturity Index" means the original period to maturity of the
U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years) specified in
the applicable pricing supplement with respect to which the CMT Rate will be
calculated or, if no such maturity is specified in the applicable pricing
supplement, 2 years.
ELEVENTH DISTRICT COST OF FUNDS RATE NOTES. The "Eleventh District Cost of
Funds Rate" for any Interest Determination Date is the rate equal to the monthly
weighted average cost of funds for the month preceding the Interest
Determination Date as displayed on the Telerate Page 7058 by 11:00 A.M., San
Francisco time, on the Calculation Date for that Interest Determination Date
under the caption "11th District."
The calculation agent will use the following procedures if the Eleventh
District Cost of Funds Rate cannot be determined as described above:
- If the rate is not displayed on the relevant page by 11:00 A.M., San
Francisco time, on the Calculation Date, then the Eleventh District Cost
of Funds Rate will be the monthly weighted average cost of funds paid by
member institutions of the Eleventh Federal Home Loan Bank District, as
announced by the Federal Home Loan Bank of San Francisco, for the month
immediately preceding the Interest Determination Date.
- If no announcement was made relating to the month preceding the Interest
Determination Date, the Eleventh District Cost of Funds Rate will remain
the Eleventh District Cost of Funds Rate then in effect on the Interest
Determination Date.
INDEXED NOTES
We may issue Notes for which the amount of interest or principal that you
will receive will not be known on your date of purchase. We will specify the
formulae for computing interest or principal payments for these types of Notes,
which we call "Indexed Notes", by reference to securities, financial or
non-financial indices, currencies, commodities, interest rates, or composites or
baskets of any or all
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of the above. Examples of indexed items that we may use include a published
stock index, the common stock price of a publicly traded company, the value of
the U.S. dollar versus the Japanese Yen, or the price in a particular market of
a barrel of West Texas intermediate crude oil.
If you purchase an Indexed Note, you may receive a principal amount at
maturity that is greater than or less than the Note's face amount, and an
interest rate that is greater than or less than the interest rate that you would
have earned if you had instead purchased a conventional debt security issued by
us at the same time with the same maturity. The amount of interest and principal
that you will receive will depend on the structure of the Indexed Note and the
level of the specified indexed item throughout the term of the Indexed Note and
at maturity. Specific information pertaining to the method of determining the
interest payments and the principal amount will be described in the pricing
supplement, as well as additional risk factors unique to the Indexed Note,
certain historical information for the specified indexed item and certain
additional United States federal tax considerations.
RENEWABLE NOTES
We may issue Renewable Notes ("Renewable Notes") which are Notes that will
automatically renew at their maturity date unless the holder of the Renewable
Note elects to terminate the automatic extension feature by giving notice in the
manner described in the related pricing supplement.
The holder of the Renewable Note must give notice of termination at least 15
but not more than 30 days prior to the Renewal Date. The holder of a Renewable
Note may terminate the automatic extension for less than all of their Renewable
Notes only if the terms of the Note specifically permit partial termination. An
election to terminate the automatic extension of any portion of the Renewable
Note is not revocable and will be binding on the holder of the Note. If the
holder elects to terminate the automatic extension of the maturity of the Note,
the holder will become entitled to the principal and interest accrued up to the
Renewal Date. The related pricing supplement will identify a final maturity date
beyond which the maturity date cannot be renewed.
If a Note is represented by a Global Security, DTC or its nominee will be
the holder of the Note and therefore will be the only entity that can exercise a
right to terminate the automatic extension of a Note. In order to ensure that
DTC or its nominee will exercise a right to terminate the automatic extension
provisions of a particular Note, the beneficial owner of the Note must instruct
the broker or other DTC participant through which it holds an interest in the
Note to notify DTC of its desire to terminate the automatic extension of the
Note. Different firms have different cut-off times for accepting instructions
from their customers and, accordingly, each beneficial owner should consult the
broker or other participant through which it holds an interest in a Renewable
Note to ascertain the cut-off time by which an instruction must be given for
delivery of timely notice to DTC or its nominee.
EXTENDIBLE NOTES
We may issue Notes whose stated maturity date may be extended at our option
(an "Extendible Note") for one or more whole year periods (each an "Extension
Period"), up to but not beyond a final maturity date described in the related
pricing supplement (but not to exceed 30 years from the date of issue).
We may exercise our option to extend the Extendible Note by notifying the
applicable Trustee (or any duly appointed paying agent) at least 45 but not more
than 60 days prior to the then effective maturity date. If we elect to extend
the Extendible Note, the Trustee (or paying agent) will mail (at least 40 days
prior to the maturity date) to the registered holder of the Extendible Note a
notice ("Extension Notice") informing the holder of our election, the new
maturity date and any updated terms. Upon the mailing of the Extension Notice,
the maturity of such Note will be extended automatically as set forth in the
Extension Notice.
However, we may, not later than 20 days prior to the maturity date of an
Extendible Note (or, if such date is not a Business Day, on the immediately
succeeding Business Day), at our option, establish
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a higher interest rate, in the case of a Fixed Rate Note, or a higher Spread
and/or Spread Multiplier, in the case of a Floating Rate Note, for the Extension
Period by mailing or causing the applicable Trustee (or paying agent) to mail
notice of such higher interest rate or higher Spread and/or Spread Multiplier to
the holder of the Extendible Note. The notice will be irrevocable.
If we elect to extend the maturity of an Extendible Note, the holder of the
Note will have the option to instead elect repayment of the Note by us on the
then effective maturity date. In order for an Extendible Note to be so repaid on
the maturity date, we must receive, at least 15 days but not more than 30 days
prior to the maturity date:
(1) the Note with the form "Option to Elect Repayment" on the reverse of the
Note duly completed; or
(2) a facsimile transmission, telex or a letter from a member of a national
securities exchange or the National Association of Securities Dealers, Inc. (the
"NASD") or a commercial bank or trust company in the United States setting forth
the name of the holder of the Note, the principal amount of the Note, the
principal amount of the Note to be repaid, the certificate number or a
description of the tenor and terms of the Note, a statement that the option to
elect repayment is being exercised thereby and a guarantee that the Note to be
repaid, together with the duly completed form entitled "Option to Elect
Repayment" on the reverse of the Note, will be received by the applicable
Trustee (or paying agent) not later than the fifth Business Day after the date
of the facsimile transmission, telex or letter; PROVIDED, HOWEVER, that the
facsimile transmission, telex or letter will only be effective if the applicable
Trustee or paying agent receives the Note and form duly completed by that fifth
Business Day. A holder of an Extendible Note may exercise this option for less
than the aggregate principal amount of the Note then outstanding if the
principal amount of the Note remaining outstanding after repayment is an
authorized denomination.
If a Note is represented by a Global Security, DTC or its nominee will be
the holder of that Note and therefore will be the only entity that can exercise
a right to repayment. To ensure that DTC or its nominee timely exercises a right
to repayment with respect to a particular Note, the beneficial owner of that
Note must instruct the broker or other participant through which it holds an
interest in the Note to notify DTC of its desire to exercise a right of
repayment. Different firms have different cut-off times for accepting
instructions from their customers and, accordingly, each beneficial owner should
consult the broker or other participant through which it holds an interest in a
Note to determine the cut-off time by which an instruction must be given for
timely notice to be delivered to DTC or its nominee.
WARRANTS AND UNITS
We may issue Notes paired with Warrants. In that case, the related
prospectus supplement will include a description of those Warrants.
OPTIONAL REDEMPTION, REPAYMENT AND REPURCHASE
We will indicate in the pricing supplement for a Note whether we will have
the option to redeem the Note before the stated maturity and the price or prices
at which, and date or dates on which, redemption may occur. If we are allowed to
redeem a Note, we may exercise the option by notifying the applicable Trustee at
least 45 days prior to the redemption date. At least 30 but not more than 60
days before the redemption date, the Trustee will mail notice or cause the
paying agent to mail notice of redemption to the Holders. If we partially redeem
a Note, we will issue a new Note or Notes for the unredeemed portion.
The pricing supplement relating to a Note will also indicate whether you
will have the option to elect repayment by us prior to the stated maturity and
the price and the date or dates on which, repayment may occur.
For a Note to be repaid at your option, the paying agent must receive at
least 30 but not more than 60 days prior to an optional repayment date, such
Note with the form entitled "Option to Elect
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Repayment" on the reverse of the Note duly completed. You may also send the
paying agent a facsimile or letter from a member of a national securities
exchange or the National Association of Securities Dealers, Inc. or a commercial
bank or trust company in the United States describing the particulars of the
repayment, including a guarantee that the Note and the form entitled "Option to
Elect Repayment" will be received by the paying agent no later than five
Business Days after such facsimile or letter. If you present a Note for
repayment, such act will be irrevocable. You may exercise the repayment option
for less than the entire principal of the Note, provided the remaining principal
outstanding is an authorized denomination. If you elect partial repayment, your
Note will be cancelled, and we will issue a new Note or Notes for the remaining
amount.
DTC or its nominee will be the holder of each Global Security and will be
the only party that can exercise a right of repayment. If you are a beneficial
owner of a Global Security and you want to exercise your right of repayment, you
must instruct your broker or indirect participant through which you hold a Note
interest to notify DTC. You should consult your broker or such indirect
participant to discuss the appropriate cut-off times and any other requirements
for giving this instruction. The giving of any such instruction will be
irrevocable.
If a Note is an Original Issue Discount Note (other than an Indexed Note),
the amount payable in the event of redemption or repayment prior to its stated
maturity will be the amortized face amount on the redemption or repayment date,
as the case may be. The amortized face amount of an Original Issue Discount Note
will be equal to (i) the issue price plus (ii) that portion of the difference
between the issue price and the principal amount of the Note that has accrued at
the yield to maturity described in the pricing supplement (computed in
accordance with generally accepted U.S. bond yield computation principles) by
the redemption or repayment date. However, in no case will the amortized face
amount of an Original Issue Discount Note exceed its principal amount.
We may at any time purchase Notes at any price in the open market or
otherwise. We may hold, resell or surrender for cancellation any Notes that we
purchase.
SPECIAL PROVISIONS RELATING TO FOREIGN CURRENCY NOTES
GENERAL
Unless we indicate otherwise in the applicable pricing supplement, we will
denominate the Notes in U.S. dollars, we will make principal and interest
payments on the Notes in U.S. dollars and you must pay the purchase price of the
Notes in immediately available funds. If any of the Notes ("Foreign Currency
Notes") are to be denominated or payable in a currency or basket of currencies
other than U.S. dollars (a "specified currency"), the following provisions will
apply in addition to, and to the extent inconsistent therewith will replace, the
description of general terms and provisions of Notes set forth in the
accompanying prospectus and elsewhere in this prospectus supplement.
A pricing supplement with respect to any Foreign Currency Note (which may
include information with respect to applicable current foreign exchange
controls) is a part of this prospectus and prospectus supplement. Any
information we furnish you concerning exchange rates is furnished as a matter of
information only and you should not regard it as indicative of the range of or
trends in fluctuations in currency exchange rates that may occur in the future.
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CURRENCIES
We may offer Foreign Currency Notes denominated and/or payable in a
specified currency or specified currencies. Unless we indicate otherwise in the
applicable pricing supplement, you are required to pay for Foreign Currency
Notes in the specified currency. At the present time, there are limited
facilities in the United States for conversion of U.S. dollars into specified
currencies and vice versa, and banks may elect not to offer non-U.S. dollar
checking or savings account facilities in the United States. However, at your
request on or prior to the third Business Day preceding the date of delivery of
the Foreign Currency Notes, or by such other day as determined by the Agent who
presents such offer to purchase Foreign Currency Notes to us, such Agent may be
prepared to arrange for the conversion of U.S. dollars into the applicable
specified currency set forth in the applicable pricing supplement to enable the
purchasers to pay for the Foreign Currency Notes. Each such conversion will be
made by the Agent or Agents on such terms and subject to such conditions,
limitations and charges as the Agent may from time to time establish in
accordance with their regular foreign exchange practices. If you purchase
Foreign Currency Notes you will pay all costs of exchange.
The applicable pricing supplement will set forth information about the
specified currency in which a particular Foreign Currency Note is denominated
and/or payable, including historical exchange rates and a description of the
currency and any exchange controls, and, in the case of a basket of currencies,
will include a description of such basket and a description of provisions for
payment in the event such currency basket is no longer used for the purposes for
which it was established.
PAYMENT OF PRINCIPAL AND INTEREST
We will pay the principal of and interest on Foreign Currency Notes in the
specified currency. Currently, banks do not generally offer non-U.S. dollar
denominated account facilities in their offices in the United States, although
they are permitted to do so. Accordingly, if you are a holder of Foreign
Currency Notes you will be paid in U.S. dollars converted from the specified
currency unless you elect to be paid in the specified currency or unless the
applicable pricing supplement provides otherwise.
If you hold a Foreign Currency Note we will base any U.S. dollar amount that
you are owed on the highest bid quotation in The City of New York received by
our agent specified in the applicable pricing supplement (the "Exchange Rate
Agent") at approximately 11:00 A.M., New York City time, on the second Business
Day preceding the applicable payment date from three recognized foreign exchange
dealers (one of whom may be the Exchange Rate Agent) selected by the Exchange
Rate Agent and approved by us for the purchase by the quoting dealer of the
specified currency for U.S. dollars for settlement on such payment date in the
aggregate amount of the specified currency payable to all holders of Foreign
Currency Notes scheduled to receive U.S. dollar payments and at which the
applicable dealer commits to execute a contract. If three such bid quotations
are not available, we will make payments in the specified currency. All currency
exchange costs will be borne by the holders of the Foreign Currency Note by
deductions from such payments.
Unless we indicate otherwise in the applicable pricing supplement, as a
holder of Foreign Currency Notes you may elect to receive payment of the
principal of and interest on the Foreign Currency Notes in the specified
currency by transmitting a written request for such payment to the corporate
trust office of the Trustee in The City of New York on or prior to the Regular
Record Date or at least fifteen calendar days prior to Maturity, as the case may
be. You may make this request in writing (mailed or hand delivered) or sent by
facsimile transmission. As a holder of a Foreign Currency Note you may elect to
receive payment in the specified currency for all principal and interest
payments and need not file a separate election for each payment. Your election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the Regular Record Date or at least fifteen calendar days prior to the
maturity date, as the case may be. If your Foreign Currency Notes are held in
the name of a broker or nominee, you should contact your broker or nominee to
determine whether and how you may elect to receive payments in the specified
currency.
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If a Note is represented by a Global Security, DTC or its nominee will be
the holder of the Note and will be entitled to all payments on the Note.
Although DTC can hold Notes denominated in foreign currencies, all payments to
DTC will be made in U.S. dollars. Accordingly, a beneficial owner of the related
Global Security who elects to receive payments of principal, premium, if any,
and/or interest, if any, in the specified currency must notify the Participant
through which it owns its interest on or prior to the applicable Record Date or
at least fifteen calendar days prior to the Maturity, as the case may be, of
such beneficial owner's election. The Participant must notify DTC of such
election on or prior to the third Business Day after such Record Date or at
least twelve calendar days prior to the Maturity, as the case may be, and DTC
will notify the Trustee of such election on or prior to the fifth Business Day
after such Record Date or at least ten calendar days prior to the Maturity, as
the case may be. If the Participant receives complete instructions from the
beneficial owner and such instructions are forwarded by the Participant to DTC,
and by DTC to the Trustee, on or prior to such dates, then the beneficial owner
will receive payments in the specified currency. See "Description of Debt
Securities--Book-Entry Debt Securities."
We will pay principal and interest on Foreign Currency Notes to be paid in
U.S. dollars in the manner specified in the accompanying prospectus and this
prospectus supplement with respect to Notes denominated in U.S. dollars. See
"Description of the Notes--General". We will pay interest on Foreign Currency
Notes in the specified currency by check mailed on the relevant Interest Payment
Date to the persons entitled thereto to the address of such holders as they
appear in the Security Register or, at our option by wire transfer to a bank
account maintained by the holder in the country of the specified currency. The
principal of Foreign Currency Notes, together with interest accrued and unpaid
thereon, due at Maturity will be paid in immediately available funds upon
surrender of such Notes at the corporate trust office of the applicable Trustee
in The City of New York, or, at our option, by wire transfer to such bank
account.
PAYMENT CURRENCY
If a specified currency is not available for the payment of principal,
premium or interest with respect to a Foreign Currency Note due to the
imposition of exchange controls or other circumstances beyond our control, we
will be entitled to satisfy our obligations to holders of Foreign Currency Notes
by making such payment in U.S. dollars on the basis of the noon buying rate in
The City of New York for cable transfers of the specified currency as certified
for customs purposes (or, if not so certified as otherwise determined) by the
Federal Reserve Bank of New York (the "Market Exchange Rate") as computed by the
Exchange Rate Agent on the second Business Day prior to such payment or, if not
then available, on the basis of the most recently available Market Exchange Rate
or as otherwise indicated in an applicable pricing supplement. Any payment made
under such circumstances in U.S. dollars where the required payment is in a
specified currency will not constitute a default under the Indenture with
respect to the Notes.
All determinations referred to above made by the Exchange Rate Agent will be
at its sole discretion and will, in the absence of clear error, be conclusive
for all purposes and binding on the holders of the Foreign Currency Notes.
AS INDICATED ABOVE, IF YOU INVEST IN FOREIGN CURRENCY NOTES OR CURRENCY
INDEXED NOTES YOUR INVESTMENT WILL BE SUBJECT TO SUBSTANTIAL RISKS, THE EXTENT
AND NATURE OF WHICH CHANGE CONTINUOUSLY. AS WITH ANY INVESTMENT THAT YOU MAKE IN
A SECURITY, YOU SHOULD CONSULT YOUR OWN FINANCIAL AND LEGAL ADVISORS AS TO THE
RISKS ENTAILED IN AN INVESTMENT IN FOREIGN CURRENCY NOTES OR CURRENCY INDEXED
NOTES. SUCH NOTES ARE NOT AN APPROPRIATE INVESTMENT FOR YOU IF YOU ARE
UNSOPHISTICATED WITH RESPECT TO FOREIGN CURRENCY MATTERS.
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UNITED STATES TAXATION
In the opinion of Shearman & Sterling, our special tax counsel, the
following summary accurately describes the material United States federal income
tax consequences of the purchase, ownership, and disposition of a Note, subject
to the limitations stated below. Such opinion is based on the Internal Revenue
Code of 1986, as amended (the "Code"), Treasury Regulations (including proposed
Regulations and temporary Regulations) promulgated thereunder, rulings, official
pronouncements and judicial decisions, all as in effect on the date of this
prospectus supplement and all of which are subject to change, possibly with
retroactive effect, or to different interpretations. This summary provides
general information only and does not address all of the federal income tax
consequences that may be applicable to a holder of a Note. It does not address
all of the tax consequences that may be relevant to certain types of holders
subject to special treatment under the federal income tax law, such as
individual retirement and other tax-deferred accounts, dealers in securities or
currencies, life insurance companies, tax-exempt organizations, persons holding
Notes as a hedge or hedged against currency risk, as a position in a straddle
for tax purposes, as part of a "synthetic security" or other integrated
investment comprised of a Note and one or more other investments or United
States persons (as defined below) whose functional currency is other than the
U.S. dollar. It also does not discuss the tax consequences to subsequent
purchasers of Notes and is limited to investors who hold Notes as a capital
asset. The federal income tax consequences of purchasing, holding or disposing
of a particular Note will depend, in part, on the particular terms of such Note
as set forth in the applicable pricing supplement. The federal income tax
consequences of purchasing, holding or disposing of certain Floating Rate Notes,
Foreign Currency Notes (other than Single Foreign Currency Notes, as defined
below), Amortizing Notes, Floating Rate/Fixed Rate Notes, Indexed Notes,
Renewable Notes and exchangeable or convertible Debt Securities will be set out
in the applicable pricing supplement. Persons considering the purchase of Notes
and making any election under the Code or the Treasury Regulations with respect
to such Notes should consult their own tax advisors concerning the application
of the United States federal income tax law to their particular situations as
well as any tax consequences arising under the law of any state, local or
foreign tax jurisdiction, subject to the limitations stated below.
"Single Foreign Currency Note" shall mean a Note on which all payments a
holder is entitled to receive are denominated in or determined by reference to
the value of a single Foreign Currency. "Foreign Currency" shall mean a currency
or currency unit, other than a hyperinflationary currency or the U.S. dollar.
UNITED STATES PERSONS
For purposes of the following discussion, "United States person" means an
individual who is a citizen or resident of the United States, an estate subject
to United States federal income taxation without regard to the source of its
income, a corporation, partnership or other business entity created or organized
in or under the laws of the United States or any state or the District of
Columbia, or a trust if both (A) a court within the United States is able to
exercise primary supervision over the administration of the trust, and (B) one
or more United States persons have the authority to control all substantial
decisions of the trust. The following discussion pertains only to a holder of a
Note who is a beneficial owner of such Note and who is a United States person.
PAYMENTS OF INTEREST ON NOTES THAT ARE NOT DISCOUNT NOTES
Except as discussed below under "Discount Notes" and "Short-Term Notes",
payments of interest on a Note will be taxable to a holder as ordinary interest
income at the time it is accrued or received in accordance with the holder's
method of tax accounting. If the payment is denominated in or determined with
reference to a single Foreign Currency, the amount required to be included in
income by a cash basis holder will be the U.S. dollar value of the amount paid
(determined on the basis of the "spot rate" on the date such payment is
received) regardless of whether the payment is in fact converted into U.S.
dollars. No exchange gain or loss will be recognized with respect to the receipt
of such payment.
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Except in the case of a Spot Rate Convention Election (as defined below), a
holder of a Single Foreign Currency Note who uses the accrual method of
accounting or is otherwise required to accrue interest income prior to receipt
will be required to include in income for each taxable year the U.S. dollar
value of the interest that has accrued during such year, determined by
translating such interest at the average rate of exchange for the period or
periods during which such interest has accrued. The average rate of exchange for
an interest accrual period (or partial period) is the simple average of the spot
exchange rates for each business day of such period (or such other average that
is reasonably derived and consistently applied by the holder). Upon receipt of
an interest payment, such holder will recognize ordinary gain or loss in an
amount equal to the difference between the U.S. dollar value of the Foreign
Currency received (determined on the basis of the "spot rate" on the date such
payment is received) or, in the case of interest received in U.S. dollars rather
than in Foreign Currency, the amount so received and the U.S. dollar value of
the interest income that such holder has previously included in income with
respect to such payment. Any such gain or loss generally will not be treated as
interest income or expense, except to the extent provided by administrative
pronouncements of the Internal Revenue Service (the "Service").
A holder may elect (a "Spot Rate Convention Election") to translate accrued
interest into U.S. dollars at the "spot rate" on the last day of an accrual
period for the interest, or, in the case of an accrual period that spans two
taxable years, at the "spot rate" on the last day of the taxable year.
Additionally, if a payment of interest is received within five business days of
the last day of the accrual period, an electing holder may instead translate
such accrued interest into U.S. dollars at the "spot rate" on the day of
receipt. Any such election will apply to all debt instruments held by the United
States person at the beginning of the first taxable year to which the election
applies or thereafter acquired by the United States person and cannot be revoked
without the consent of the Service.
For purposes of this discussion, the "spot rate" generally means a rate that
reflects a fair market rate of exchange available to the public for currency
under a "spot contract" in a free market and involving representative amounts. A
"spot contract" is a contract to buy or sell a currency on or before two
business days following the date of the execution of the contract. If such a
spot rate cannot be demonstrated, the Service has the authority to determine the
spot rate.
PURCHASE, SALE, EXCHANGE OR RETIREMENT OF NOTES
A holder's tax basis in a Note generally will be the U.S. dollar cost of the
Note to such holder (which in the case of a Note purchased with Foreign Currency
will be determined by translating the purchase price at the spot rate on the
date of purchase), increased by any original issue discount, market discount or
acquisition discount (all as defined below) previously included in the holder's
gross income (as described below), and reduced by any amortized premium (as
described below) and any principal payments and payments of stated interest that
are not payments of qualified stated interest (as defined below).
Upon the sale, exchange or retirement of a Note, a holder generally will
recognize gain or loss equal to the difference between the amount realized on
the sale, exchange or retirement (or the U.S. dollar value at the spot rate on
the date of the sale, exchange or retirement of the amount realized in Foreign
Currency), except to the extent such amount is attributable to accrued interest,
and the holder's tax basis in the Note. Except with respect to (i) gains or
losses attributable to changes in exchange rates (as described in the next
paragraph), (ii) gain attributable to market discount (as described below) and
(iii) gain on the disposition of a Short-Term Note (as described below), gain or
loss so recognized will be capital gain or loss and will be long-term capital
gain or loss, if, at the time of the sale, exchange or retirement, the Note was
held for more than one year. Under current law, long-term capital gains of
individuals are, under certain circumstances, taxed at lower rates than items of
ordinary income.
Gain or loss recognized by a holder on the sale, exchange or retirement of a
Single Foreign Currency Note that is attributable to changes in exchange rates
will be treated as ordinary income or
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loss and generally will not be treated as interest income or expense except to
the extent provided by administrative pronouncements of the Service. Gain or
loss attributable to changes in exchange rates is recognized on the sale,
exchange or retirement of a Single Foreign Currency Note only to the extent of
the total gain or loss recognized on such sale, exchange or retirement.
EXCHANGE OF FOREIGN CURRENCY
A holder's tax basis in Foreign Currency purchased by the holder generally
will be the U.S. dollar value thereof at the spot rate on the date such Foreign
Currency is purchased. A holder's tax basis in Foreign Currency received as
interest on, or on the sale, exchange or retirement of, a Single Foreign
Currency Note will be the U.S. dollar value thereof at the spot rate at the time
such Foreign Currency is received. The amount of gain or loss recognized by a
holder on a sale, exchange or other disposition of Foreign Currency will be
equal to the difference between (i) the amount of U.S. dollars, the U.S. dollar
value at the spot rate of the Foreign Currency, or the fair market value in U.S.
dollars of the property received by the holder in the sale, exchange or other
disposition, and (ii) the holder's tax basis in the Foreign Currency.
Accordingly, a holder that purchases a Note with Foreign Currency will
recognize gain or loss in an amount equal to the difference, if any, between
such holder's tax basis in the Foreign Currency and the U.S. dollar value at the
spot rate of the Foreign Currency on the date of purchase. Generally, any such
gain or loss will be ordinary income or loss and will not be treated as interest
income or expense, except to the extent provided by administrative
pronouncements of the Service.
SUBSEQUENT INTEREST PERIODS AND EXTENSION OF MATURITY
If so specified in the pricing supplement relating to a Note, we may have
the option (a) to reset the interest rate, in the case of a Fixed Rate Note, or
to reset the Spread, the Spread Multiplier or other formula by which the
interest rate basis is adjusted, in the case of a Floating Rate Note, and/or (b)
to extend the Maturity of such Note. See "Description of Notes -- Interest and
Interest Rates" and "Description of Notes -- Extendible Notes". The treatment of
a holder of Notes with respect to which such an option has been exercised who
does not elect to have us repay such Notes will depend on the terms established
for such Notes by us pursuant to the exercise of such option (the "revised
terms"). Depending on the particular circumstances, such holder may be treated
as having surrendered such Notes for new Notes with the revised terms in either
a taxable exchange or a recapitalization qualifying for nonrecognition of gain
or loss.
DISCOUNT NOTES
The following summary is a general description of U.S. federal income tax
consequences to holders of Notes issued with original issue discount ("Discount
Notes") and is based on the provisions of the Code as in effect on the date
hereof and on certain Treasury Regulations promulgated thereunder relating to
original issue discount (the "OID Regulations").
For U.S. federal income tax purposes, original issue discount is the excess
of the stated redemption price at maturity of each Discount Note over its issue
price, if such excess is greater than or equal to a DE MINIMIS amount (generally
1/4 of 1% of the Discount Note's stated redemption price at maturity multiplied
by the number of complete years to maturity from the issue date). The issue
price of an issue of Discount Notes that are issued for cash will be equal to
the first price at which a substantial amount of such Notes are sold for money.
For this purpose, sales to bond houses, brokers or similar persons or
organizations acting in the capacity of underwriters, placement agents or
wholesalers are ignored. The stated redemption price at maturity of a Discount
Note is the sum of all payments provided by the Discount Note other than
payments of "qualified stated interest". Under the OID Regulations, "qualified
stated interest" includes stated interest that is unconditionally payable in
cash or property (other than debt instruments of the issuer) at least annually
at a single fixed rate (with certain exceptions for lower rates paid during some
periods) or certain variable rates as described
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below. Interest is payable at a single fixed rate only if the rate appropriately
takes into account the length of the interval between payments. Except as
described below with respect to Short-Term Notes, a holder of a Discount Note
will be required to include original issue discount in taxable income as it
accrues before the receipt of cash attributable to such income, regardless of
such holder's method of accounting for tax purposes. Special rules for Variable
Rate Notes (as defined below under "Variable Rate Notes") are described below
under "Variable Rate Notes".
The amount of original issue discount includible in taxable income by the
initial holder of a Discount Note is the sum of the daily portions of original
issue discount with respect to such Note for each day during the taxable year on
which such holder held such Note ("accrued original issue discount"). Generally,
the daily portion of the original issue discount is determined by allocating to
each day in any "accrual period" a ratable portion of the original issue
discount allocable to such accrual period. Under the OID Regulations, the
"accrual periods" for a Discount Note may be selected by each holder, may be of
any length, and may vary in length over the term of a Discount Note, provided
that each accrual period is no longer than one year and each scheduled payment
of principal or interest occurs either on the first day or final day of an
accrual period. The amount of original issue discount allocable to each accrual
period is equal to the excess (if any) of (a) the product of a Discount Note's
adjusted issue price at the beginning of such accrual period and its yield to
maturity (determined on the basis of compounding at the close of each accrual
period and adjusted for the length of such accrual period) over (b) the amount
of qualified stated interest, if any, payable on such Discount Note and
allocable to such accrual period. The "adjusted issue price" of a Discount Note
at the beginning of any accrual period generally is the sum of the issue price
of a Discount Note plus the accrued original issue discount allocable for all
prior accrual periods reduced by any prior payment on the Discount Note other
than a payment of qualified stated interest. Under these rules, a holder of a
Discount Note generally will have to include in taxable income increasingly
greater amounts of original issue discount in successive accrual periods.
Original issue discount on a Discount Note that is also a Single Foreign
Currency Note will be determined for any accrual period in the applicable
Foreign Currency and then translated into U.S. dollars in the same manner as
interest income accrued by a holder on the accrual basis, including the
application of a Spot Rate Convention Election. See "Payments of Interest on
Notes that are not Discount Notes". Likewise, upon receipt of payment
attributable to original issue discount (whether in connection with a payment of
interest or the sale, exchange or retirement of a Discount Note), a holder will
recognize exchange gain or loss to the extent of the difference between such
holder's basis in the accrued original issue discount (determined in the same
manner as for accrued interest) and the U.S. dollar value of such payment
(determined by translating any Foreign Currency received at the spot rate on the
date of payment). Generally, any such exchange gain or loss will be ordinary
income or loss and will not be treated as interest income or expense, except to
the extent provided in administrative pronouncements of the Service. For this
purpose, all payments on a Note will be viewed first as the payment of qualified
stated interest (determined under the original issue discount rules), second as
payments of previously accrued original issue discount (to the extent thereof),
with payments considered made for the earliest accrual periods first, and
thereafter as the payment of principal.
If a holder's tax basis in a Discount Note immediately after purchase
exceeds the adjusted issue price of the Discount Note (the amount of such excess
is considered "acquisition premium") but is not greater than the stated
redemption price at maturity of such Discount Note, the amount includible in
income in each taxable year as original issue discount is reduced (but not below
zero) by that portion of the excess properly allocable to such year.
If a holder purchases a Discount Note for an amount in excess of the stated
redemption price at maturity, the holder does not include any original issue
discount in income and generally may be subject to the "bond premium" rules
discussed below. See "Amortizable Bond Premium". If a holder has a tax basis in
a Discount Note that is less than the adjusted issue price of such Discount
Note, the difference may be subject to the market discount provisions discussed
below. See "Market Discount".
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Under the OID Regulations, a holder of a Note may elect to include in gross
income all interest that accrues on such Note using the constant yield method.
For this purpose, interest includes stated interest, acquisition discount,
original issue discount, DE MINIMIS original issue discount, market discount, DE
MINIMIS market discount, and unstated interest, as adjusted by any amortizable
bond premium or acquisition premium. Special rules apply to elections made with
respect to Notes issued with amortizable bond premium or market discount. Once
made with respect to a Note, the election cannot be revoked without the consent
of the Service. A holder considering an election under these rules should
consult a tax advisor.
MARKET DISCOUNT
If a holder purchases a Note (other than a Discount Note) for an amount that
is less than its stated redemption price at maturity, or purchases a Discount
Note for less than its "revised issue price" (as defined under the Code) as of
the purchase date, the amount of the difference will be treated as "market
discount" unless such difference is less than a specified DE MINIMIS amount.
Under the market discount rules of the Code, a holder will be required to treat
any partial principal payment (or, in the case of a Discount Note, any payment
that does not constitute qualified stated interest) on, or any gain realized on
the sale, exchange or retirement of, a Note as ordinary income to the extent of
the market discount which has not previously been included in income and is
treated as having accrued on such Note at the time of such payment or
disposition. Further, a disposition of a Note by gift (and in certain other
circumstances) could result in the recognition of market discount income,
computed as if such Note had been sold at its then fair market value. In
addition, a holder who purchases a Note with market discount may be required to
defer the deduction of all or a portion of the interest paid or accrued on any
indebtedness incurred or maintained to purchase or carry such Note until the
maturity of the Note or its earlier disposition in a taxable transaction.
Market discount is considered to accrue ratably during the period from the
date of acquisition to the maturity date of a Note, unless the holder elects to
accrue market discount under the rules applicable to original issue discount. A
holder may elect to include market discount in income currently as it accrues,
in which case the rules described above regarding the deferral of interest
deductions will not apply.
With respect to a Single Foreign Currency Note, market discount is
determined in the applicable Foreign Currency. In the case of a holder who does
not elect current inclusion, accrued market discount is translated into U.S.
dollars at the spot rate on the date of disposition. No part of such accrued
market discount is treated as exchange gain or loss. In the case of a holder who
elects current inclusion, the amount currently includible in income for a
taxable year is the U.S. dollar value of the market discount that has accrued
during such year, determined by translating such market discount at the average
rate of exchange for the period or periods during which it accrued. Such an
electing holder will recognize exchange gain or loss with respect to accrued
market discount under the same rules as apply to accrued interest on a Single
Foreign Currency Note received by a holder on the accrual basis. See "Payments
of Interest on Notes that are not Discount Notes".
AMORTIZABLE BOND PREMIUM
Generally, if a holder's tax basis in a Note held as a capital asset exceeds
the stated redemption price at maturity of such Note, such excess may constitute
amortizable bond premium that the holder may elect to amortize under the
constant interest rate method over the period from his acquisition date to the
Note's maturity date. Under certain circumstances, amortizable bond premium may
be determined by reference to an early call date. Special rules apply with
respect to Single Foreign Currency Notes.
S-25
<PAGE>
VARIABLE RATE NOTES
A "Variable Rate Note" is a Note that: (i) has an issue price that does not
exceed the total noncontingent principal payments by more than the lesser of (1)
the product of (x) the total noncontingent principal payments, (y) the number of
complete years to maturity from the issue date and (z) .015, or (2) 15 percent
of the total noncontingent principal payments, and (ii) does not provide for
stated interest other than stated interest compounded or paid at least annually
at (1) one or more "qualified floating rates," (2) a single fixed rate and one
or more qualified floating rates, (3) a single "objective rate" or (4) a single
fixed rate and a single objective rate that is a "qualified inverse floating
rate."
A qualified floating rate or objective rate in effect at any time during the
term of the instrument must be set at a "current value" of that rate. A "current
value" of a rate is the value of the rate on any day that is no earlier than 3
months prior to the first day on which that value is in effect and no later than
1 year following that first day.
A variable rate is a "qualified floating rate" if (i) variations in the
value of the rate can reasonably be expected to measure contemporaneous
variations in the cost of newly borrowed funds in the currency in which the Note
is denominated or (ii) it is equal to the product of such a rate and either (a)
a fixed multiple that is greater than .65 but not more than 1.35, or (b) a fixed
multiple greater than .65 but not more than 1.35, increased or decreased by a
fixed rate. If a Note provides for two or more qualified floating rates that (i)
are within 0.25 percent of each other on the issue date or (ii) can reasonably
be expected to have approximately the same values throughout the term of the
Note, the qualified floating rates together constitute a single qualified
floating rate. A rate is not a qualified floating rate, however, if the rate is
subject to certain restrictions (including caps, floors, governors, or other
similar restrictions) unless such restrictions are fixed throughout the term of
the Note or are not reasonably expected to significantly affect the yield on the
Note.
An "objective rate" is a rate, other than a qualified floating rate, that is
determined using a single, fixed formula and that is based on objective
financial or economic information. A rate will not qualify as an objective rate
if it is based on information that is within the control of the issuer (or a
related party) or that is unique to the circumstances of the issuer (or a
related party), such as dividends, profits, or the value of the issuer's stock
(although a rate does not fail to be an objective rate merely because it is
based on the credit quality of the issuer). A variable rate is not an objective
rate, however, if it is reasonably expected that the average value of the rate
during the first half of the Note's term will be either significantly less than
or significantly greater than the average value of the rate during the final
half of the Note's term. An objective rate is a "qualified inverse floating
rate" if (i) the rate is equal to a fixed rate minus a qualified floating rate,
and (ii) the variations in the rate can reasonably be expected to inversely
reflect contemporaneous variations in the qualified floating rate.
If interest on a Note is stated at a fixed rate for an initial period of one
year or less followed by either a qualified floating rate or an objective rate
for a subsequent period and (i) the fixed rate and the qualified floating rate
or objective rate have values on the issue date of the Note that do not differ
by more than 0.25 percent or (ii) the value of the qualified floating rate or
objective rate is intended to approximate the fixed rate, the fixed rate and the
qualified floating rate or the objective rate constitute a single qualified
floating rate or objective rate. Under these rules, Commercial Paper Rate Notes,
LIBOR Notes, Treasury Rate Notes, CD Rate Notes, Federal Funds Rate Notes, Prime
Rate Notes, and CMT Rate Notes generally will be treated as Variable Rate Notes.
In general, if a Variable Rate Note provides for stated interest at a single
qualified floating rate or objective rate and the interest is unconditionally
payable in cash at least annually, all stated interest on the Note is qualified
stated interest and the amount of OID, if any, is determined by using, in the
case of a qualified floating rate or qualified inverse floating rate, the value
as of the issue date of the qualified floating rate or qualified inverse
floating rate, or, in the case of any other objective rate, a fixed rate that
reflects the yield reasonably expected for the Note.
S-26
<PAGE>
If a Variable Rate Note does not provide for stated interest at a single
qualified floating rate or a single objective rate, or at a single fixed rate
(other than at a single fixed rate for an initial period), the amount of
interest and OID accruals on the Note are generally determined by (i)
determining a fixed rate substitute for each variable rate provided under the
Variable Rate Note (generally, the value of each variable rate as of the issue
date or, in the case of an objective rate that is not a qualified inverse
floating rate, a rate that reflects the reasonably expected yield on the Note),
(ii) constructing the equivalent fixed rate debt instrument (using the fixed
rate substitute described above), (iii) determining the amount of qualified
stated interest and OID with respect to the equivalent fixed rate debt
instrument, and (iv) making the appropriate adjustments for actual variable
rates during the applicable accrual period.
If a Variable Rate Note provides for stated interest either at one or more
qualified floating rates or at a qualified inverse floating rate, and in
addition provides for stated interest at a single fixed rate (other than at a
single fixed rate for an initial period), the amount of interest and OID
accruals are determined as in the immediately preceding paragraph with the
modification that the Variable Rate Note is treated, for purposes of the first
three steps of the determination, as if it provided for a qualified floating
rate (or a qualified inverse floating rate, as the case may be) rather than the
fixed rate. The qualified floating rate (or qualified inverse floating rate)
replacing the fixed rate must be such that the fair market value of the Variable
Rate Note as of the issue date would be approximately the same as the fair
market value of an otherwise identical debt instrument that provides for the
qualified floating rate (or qualified inverse floating rate) rather than the
fixed rate.
SHORT-TERM NOTES
In general, an individual or other cash method holder of a Note that matures
one year or less from the date of its issuance (a "Short-Term Note") is not
required to accrue original issue discount on such Note unless it has elected to
do so. Holders who report income for federal income tax purposes under the
accrual method, however, and certain other holders, including banks, dealers in
securities and electing holders, are required to accrue original issue discount
(unless the holder elects to accrue "acquisition discount" in lieu of original
issue discount) on such Note. "Acquisition discount" is the excess of the
remaining stated redemption price at maturity of the Short-Term Note over the
holder's tax basis in the Short-Term Note at the time of the acquisition. In the
case of a holder who is not required and does not elect to accrue original issue
discount on a Short-Term Note, any gain realized on the sale, exchange or
retirement of such Short-Term Note will be ordinary income to the extent of the
original issue discount accrued through the date of sale, exchange or
retirement. Such a holder will be required to defer, until such Short-Term Note
is sold or otherwise disposed of, the deduction of a portion of the interest
expense on any indebtedness incurred or continued to purchase or carry such
Short-Term Note. Original issue discount or acquisition discount on a Short-Term
Note accrues on a straight-line basis unless an election is made to use the
constant yield method (based on daily compounding).
In the case of a Short-Term Note that is also a Single Foreign Currency
Note, the amount of original issue discount or acquisition discount subject to
current accrual and the amount of any exchange gain or loss on a sale, exchange
or retirement are determined under the same rules that apply to accrued interest
on a Single Foreign Currency Note held by a holder on the accrual basis. See
"Payments of Interest on Notes that are not Discount Notes".
The market discount rules will not apply to a Short-Term Note having market
discount.
NON-UNITED STATES PERSONS
Subject to the discussion of backup withholding below, payments of
principal, premium, if any, and interest (including original issue discount) by
us or our agent (in its capacity as such) to any holder who is a beneficial
owner of a Note but is not a United States person will not be subject to United
States federal withholding tax provided, in the case of premium, if any, and
interest (including original issue
S-27
<PAGE>
discount) that (i) such holder does not actually or constructively own 10% of
more of the total combined voting power of all classes of our stock entitled to
vote, (ii) such holder is not a controlled foreign corporation for United States
tax purposes that is related to us through stock ownership, and (iii) either (A)
the beneficial owner of the Note certifies to us or our agent, under penalties
of perjury, that such owner is not a United States person and provides its name
and address (which certification can be made on IRS Form W-8 or Form W-8BEN) or
(B) a securities clearing organization, bank or other financial institution that
holds customers' securities in the ordinary course of its trade or business (a
"financial institution") certifies to us or our agent, under penalties of
perjury, that the certification described in clause (A) hereof has been received
from the beneficial owner by it or by another financial institution acting for
the beneficial owner. Recently finalized Treasury Regulations provide
alternative methods for satisfying the certification requirement described in
clause (iii)(A) and (B) above. These Regulations generally will be effective for
payments made after December 31, 1999, subject to certain transition rules.
These Regulations also would require, in the case of Notes held by a foreign
partnership, that (x) the certification described in clause (iii)(A) above be
provided by the partners rather than by the foreign partnership and (y) the
partnership provide certain information, including a United States taxpayer
identification number. A look-through rule would apply in the case of tiered
partnerships.
If a holder of a Note who is not a United States person cannot satisfy the
requirements of the "portfolio interest" exception described above, payments of
interest (including original issue discount) made to such holder generally will
be subject to a 30% withholding tax (or such lower rate as may be provided by an
applicable income tax treaty between the United States and a foreign country)
unless the beneficial owner of the Note provides us or our paying agent, as the
case may be, with a properly executed (A) IRS Form 1001 or Form W-8BEN claiming
an exemption from withholding under the benefit of a tax treaty or (B) IRS Form
4224 or Form W-8ECI stating that interest paid on the Note is not subject to
withholding tax because it is effectively connected with the beneficial owner's
conduct of a trade or business in the United States. Under the recently
finalized Treasury regulations, Holders who are not United States persons will
generally be required to provide the appropriate IRS Form W-8 in lieu of the IRS
Form 1001 and IRS Form 4224, although alternative documentation may be
applicable in certain situations.
If a holder of a Note who is not a United States person is engaged in a
trade or business in the United States and premium, if any, or interest
(including original issue discount) on the Note is effectively connected with
the conduct of such trade or business, such holder, although exempt from United
States withholding tax as discussed in the preceding paragraph (by reason of the
delivery of a properly completed IRS Form 4224 or Form W-8ECI), will be subject
to United States federal income tax on such premium, if any, and interest
(including original issue discount) in the same manner as if it were a United
States person. In addition, if such holder is a foreign corporation, it may be
subject to a branch profits tax equal to 30% of its effectively connected
earnings and profits for the taxable year, subject to adjustments.
Subject to the discussion of "backup" withholding below, any capital gain
realized upon the sale, exchange or retirement of a Note by a holder who is not
a United States person will not be subject to United States federal income or
withholding taxes unless (i) such gain is effectively connected with a United
States trade or business of the holder, or (ii) in the case of an individual,
such holder is present in the United States for 183 days or more in the taxable
year of the retirement or disposition and certain other conditions are met.
Notes held by an individual who at the time of death is neither a citizen
nor a resident of the United States for United States tax purposes will not be
subject to United States federal estate tax, provided that the income from the
Notes was not or would not have been effectively connected with a United States
trade or business of such individual and that such individual qualified for the
exemption from United States federal withholding tax (without regard to the
certification requirements) that is described above.
S-28
<PAGE>
BACKUP WITHHOLDING AND INFORMATION REPORTING
The "backup" withholding and information reporting requirements may apply to
certain payments of principal, premium, if any, and interest (including original
issue discount) on a Note and to certain payments of proceeds of the sale or
retirement of a Note. We, our agent, a broker, the Trustee or any paying agent,
as the case may be, will be required to withhold tax from any payment that is
subject to backup withholding at a rate of 31% of such payment if the holder
fails to furnish his taxpayer identification number (social security number or
employer identification number), to certify that such holder is not subject to
backup withholding, or to otherwise comply with the applicable requirements of
the backup withholding rules. Certain holders (including, among others,
corporations) are not subject to the backup withholding and reporting
requirements.
Under current Treasury Regulations, backup withholding and information
reporting will not apply to payments made by us or our agent (in its capacity as
such) to a holder of a Note who has provided the required certification under
penalties of perjury that it is not a United States person as set forth in
clause (iii) in the first paragraph under "Non-United States Persons" or has
otherwise established an exemption (provided that neither we nor our agent has
actual knowledge that the holder is a United States person or that the
conditions of any other exemption are not in fact satisfied). Recently finalized
Treasury Regulations would modify the application of the information reporting
requirements and backup withholding tax to holders who are not United States
persons for payments made after December 31, 1999. Among other things, these
regulations may require such holders to furnish new certifications of their
non-U.S. status.
Any amounts withheld under the backup withholding rules from a payment to a
holder may be claimed as a credit against such holder's United States federal
income tax liability provided required information is furnished to the Service.
WE HAVE INCLUDED THE FEDERAL INCOME TAX DISCUSSION SET FORTH ABOVE FOR YOUR
GENERAL INFORMATION ONLY AND IT MAY NOT BE APPLICABLE DEPENDING UPON YOUR
PARTICULAR SITUATION. YOU SHOULD CONSULT YOUR TAX ADVISOR WITH RESPECT TO THE
TAX CONSEQUENCES TO YOU OF THE PURCHASE, OWNERSHIP AND DISPOSITION OF THE NOTES,
INCLUDING THE TAX CONSEQUENCES UNDER STATE, LOCAL, FOREIGN AND OTHER TAX LAWS
AND THE POSSIBLE EFFECTS OF CHANGES IN FEDERAL OR OTHER TAX LAWS.
PLAN OF DISTRIBUTION
We are offering the Notes on a continuous basis through Merrill Lynch & Co.,
Merrill Lynch, Pierce, Fenner & Smith Incorporated and Goldman, Sachs & Co. (the
"Agents"). The Agents have agreed to use their best efforts to solicit orders.
We have the right to accept orders or reject proposed purchases in whole or in
part. The Agents also have the right, using their reasonable discretion, to
reject any proposed purchase of the Notes in whole or in part. We will pay an
Agent a commission ranging from .125% to .675% of the principal amount of Notes
with a stated maturity of 1 year to 30 years. The exact commission paid will be
determined by the stated maturity of the Notes sold. The following table
describes the potential proceeds we will receive but does not include expenses
payable by us in connection with the offering and sale of the Notes which we
estimate to be $818,000:
<TABLE>
<CAPTION>
PRICE TO PUBLIC AGENTS' COMMISSIONS AND DISCOUNTS PROCEEDS TO THE COMPANY
---------------- ---------------------------------- ------------------------------------------
<S> <C> <C> <C>
Per Note....... 100% .125% to .675% 99.325% to 99.875%
Total.......... $1,450,000,000 $1,812,500 to $9,787,500 $1,440,212,500 to $1,448,187,500
</TABLE>
We may arrange for Notes to be sold through any Agent or may sell Notes
directly to investors. If we sell Notes directly to investors, we will not pay
any commissions or discounts. We also may sell Notes to any Agent as principal
for the Agent's account at a price agreed upon at the time of sale. Such Notes
may be resold by the Agent to investors at a fixed public offering price or at
prevailing
S-29
<PAGE>
market prices, or at a related price, that the Agent may determine. Unless we
specify otherwise in the pricing supplement, if we sell a Note to an Agent as
principal, the Agent will purchase such Note at a price equal to 100% of the
principal amount minus a discount equal to the commission that we would pay on
an agency sale of a Note of identical maturity.
Agents may sell Notes purchased from us as principal to other dealers for
resale, to investors and other purchasers and may provide any portion of the
discount received in connection with their purchase from us to such dealers.
After the initial public offering of the Notes, the public offering price, the
concession and the discount may be changed.
The Notes will not have an established trading market when issued. Also, the
Notes will not be listed on any securities exchange. The Agents may make a
market in the Notes, but are not obligated to do so and may discontinue any
market-making at any time without notice. There can be no assurance that a
secondary market for any Notes will develop or be maintained.
The Agents may be deemed to be "underwriters" within the meaning of the
Securities Act. We have agreed to indemnify the Agents against certain
liabilities, including liabilities under the Securities Act, or to contribute to
payments that they may be required to make in connection with such
indemnification.
Unless we specify otherwise in the applicable pricing supplement, you will
be required to pay the purchase price of the Notes in immediately available
funds in the specified currency in The City of New York on the date of
settlement. See "Description of the Notes--General".
In connection with an offering of Notes purchased by one or more Agents as
principal on a fixed-price basis, such Agent(s) will be permitted to engage in
certain transactions that stabilize the price of such Notes. Such transactions
may consist of bids or purchases for the purpose of pegging, fixing or
maintaining the price of such Notes. If the Agent or Agents creates or create,
as the case may be, a short position in such Notes (i.e., if it sells or they
sell Notes in an aggregate principal amount exceeding that set forth in the
applicable pricing supplement), such Agent(s) may reduce that short position by
purchasing Notes in the open market. In general, purchases of Notes for the
purpose of stabilization or to reduce a short position could cause the price of
Notes to be higher than it might be in the absence of such purchases.
Neither we nor any of the Agents make any representation or prediction as to
the direction or magnitude of any effect that the transactions described above
may have on the price of the Notes. In addition, neither we nor any of the
Agents make any representation that the Agents will engage in any such
transactions or that such transactions, once commenced, will not be discontinued
without notice.
Debt Securities having terms substantially similar to the terms of the Notes
(but constituting a separate series of Debt Securities for purposes of the
applicable Indenture) may be offered outside the United States by us on a
continuing basis, concurrently with offerings of the Notes. We may also sell
Notes, other Debt Securities or Warrants to Purchase Debt Securities pursuant to
another prospectus supplement to the accompanying prospectus. The aggregate
initial offering price of Notes that may be offered by this prospectus
supplement and the accompanying prospectus will be reduced by any such sales.
In the ordinary course of its business, the Agents and their affiliates have
engaged and may in the future engage in investment and commercial banking
transactions with us and certain of our subsidiaries.
S-30
<PAGE>
SUBJECT TO COMPLETION, DATED MARCH 3, 1999
THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY
NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES NOR AN OFFER TO BUY THESE SECURITIES IN ANY
JURISDICTION WHERE THE OFFER OR SALE IS NOT PERMITTED.
<PAGE>
DEERE & COMPANY
By this prospectus, we offer up to
$1,450,000,000 of--
DEBT SECURITIES
WARRANTS TO PURCHASE DEBT SECURITIES
--------------------------------------------
We will provide the specific terms of these securities in supplements to this
prospectus. You should read this prospectus and the supplements carefully before
you invest.
Neither the Securities and Exchange Commission nor any state
securities commission has approved or disapproved of these
securities or determined if this prospectus is truthful or
complete. Any representation to the contrary is a criminal
offense.
-----------------------------------------------------------------
[LOGO]
The date of this prospectus is , 1999.
<PAGE>
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and special reports, proxy statements and other
information with the SEC. You may read and copy any document we file at the
SEC's public reference rooms at 450 Fifth Street, N.W., Washington, D.C. 20549
and in New York, New York and Chicago, Illinois. Please call the SEC at
1-800-SEC-0330 for further information on the public reference rooms. Our SEC
filings are also available to the public from the SEC's web site at
http://www.sec.gov. Our common stock is listed on the New York Stock Exchange.
Our common stock is also listed on the Chicago and Frankfurt (Germany) Stock
Exchanges. Information about us also is available at those locations.
The SEC allows us to "incorporate by reference" the information we file with
them, which means that we can disclose important information to you by referring
you to those documents that are considered part of this prospectus. Later
information that we file with the SEC will automatically update and supersede
this information. We incorporate by reference the documents listed below and any
future filings made with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Securities Exchange Act of 1934 by us (1) after the date of the filing of this
registration statement and prior to its effectiveness and (2) until our offering
of securities has been completed. This prospectus is part of a registration
statement filed with the SEC.
- Annual Report on Form 10-K for the year ended October 31, 1998.
- Current Reports on Form 8-K dated November 24, 1998 and February 16, 1999.
You may obtain a copy of these filings at no cost, by writing or telephoning
us at the following address:
Deere & Company
One John Deere Place
Moline, Illinois
61265-8098
Attn: Corporate Secretary
(309) 765-8000
You should rely only on the information incorporated by reference or
provided in this prospectus or any supplement. We have not authorized anyone
else to provide you with different information. This prospectus is an offer to
sell or to buy only the securities referred to herein, but only under
circumstances and in jurisdictions where it is lawful to do so. The information
contained in this prospectus is current only as of the date hereof.
2
<PAGE>
THE COMPANY
We (Deere & Company and its subsidiaries, collectively called "John Deere")
manufacture, distribute and finance a full range of agricultural equipment; a
broad range of equipment for construction, forestry and public works; and a
variety of commercial and consumer equipment. We also provide credit, insurance
products and health care for businesses and the general public. We believe that
our worldwide sales of agricultural equipment during recent years have been
greater than those of any other business in our industry. We also believe that
John Deere is an important provider of most of the types of construction
equipment that we market, and the leader in some size ranges. We also believe we
are the world's largest producer of premium turf care equipment and utility
vehicles. John Deere's operations are categorized into six business segments:
The worldwide AGRICULTURAL EQUIPMENT segment manufactures and distributes a
full line of farm equipment--including tractors; combine, cotton, and
sugarcane harvesters; tillage, seeding and soil preparation machinery;
sprayers; hay and forage equipment; materials handling equipment; and
integrated precision farming technology.
The worldwide CONSTRUCTION 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; excavators; scrapers; motor graders; log skidders;
and forestry harvesters. This segment also includes the manufacture and
distribution of engines and drivetrain components for the original equipment
manufacturer (OEM) market.
The worldwide COMMERCIAL AND CONSUMER EQUIPMENT segment manufactures and
distributes equipment for commercial and residential uses--including small
tractors for lawn, garden, commercial and utility purposes; riding and
walk-behind mowers; golf course equipment; snowblowers; handheld products
such as chain saws, string trimmers and leaf blowers; skid-steer loaders;
utility vehicles; and other outdoor power products.
The products produced by the equipment segments are marketed primarily
through independent retail dealer networks and major retail outlets.
The CREDIT segment, which mainly operates in the United States and Canada,
primarily finances sales and leases by John Deere dealers of new and used
equipment and sales by non-Deere dealers of recreational products. In
addition, it provides wholesale financing to dealers of the foregoing
equipment and finances retail revolving charge accounts.
The INSURANCE segment issues policies in the United States primarily for:
general and specialized lines of commercial property and casualty insurance,
group accident and health insurance for employees of participating John
Deere dealers; and disability insurance for employees of John Deere.
The HEALTH CARE segment provides health management programs and related
administrative services in the United States to John Deere and commercial
clients.
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 our principal office is One John Deere Place, Moline, Illinois
61265-8098. Its telephone number is (309) 765-8000.
3
<PAGE>
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 our general funds 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.
PROSPECTUS
This prospectus is part of a registration statement that we filed with the
SEC utilizing a "shelf" registration process. Under this shelf process, we may
sell any combination of the following securities in one or more offerings up to
a total dollar amount of $1,450,000,000 (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): (1) unsecured debt securities ("Debt
Securities") which may be either senior (the "Senior Securities") or
subordinated (the "Subordinated Securities") or (2) warrants to purchase Debt
Securities ("Debt Warrants"). The terms of the securities will be determined at
the time of offering.
We will refer to the Debt Securities and Debt Warrants, or any combination
of those securities, proposed to be sold pursuant to this prospectus and an
accompanying prospectus supplement as the "Offered Securities". The Offered
Securities, together with any Debt Securities issuable upon exercise of Debt
Warrants or conversion or exchange of other Offered Securities, will be referred
to as the "Securities."
PROSPECTUS SUPPLEMENTS
Information about the Securities will be disclosed in this prospectus, a
prospectus supplement and pricing supplements. The supplements may also add,
delete or change information contained in this prospectus. The term "prospectus
supplement" as used herein includes pricing supplements relating to the
particular Securities. Since the specific terms of the Securities are made at
the time of pricing, you should rely on the information in the prospectus
supplement and pricing supplement that is inconsistent with the information in
this prospectus.
For more detail on the terms of the securities, you should read the exhibits
filed with our registration statement.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities will be issued in one or more distinct series by us.
This section summarizes terms of the Debt Securities that are common to all
series. Most of the financial terms and other specific terms of any series of
Debt Securities that we offer will be described in a prospectus supplement to be
attached to the front of this prospectus. Since the terms of specific Debt
Securities may differ from the general information we have provided below, you
should rely on information in the prospectus supplement that is inconsistent
with the information below.
As required by Federal law for all bonds and notes of companies that are
publicly offered, the Debt Securities are governed by a document called an
"Indenture". An Indenture is a contract between us and a financial institution
acting as Trustee on your behalf. The Trustee has two main roles. First, the
Trustee can enforce your rights against us if we default. There are some
limitations on the extent to which the Trustee acts on your behalf, described
later on page 9. Second, the Trustee performs certain administrative duties for
us.
The Indentures and associated documents contain the full legal text of the
matters described in this section. The form of each Indenture is contained in
the registration statement that we have filed with the SEC. See "Where You Can
Find More Information" on page 2 for information on how to obtain a copy of the
Indentures.
4
<PAGE>
Senior Securities will be issued under an Indenture dated as of July 1,
1994, as supplemented from time to time (the "Senior Indenture"), between us and
The Chase Manhattan Bank (successor by merger to The Chase Manhattan Bank
(National Association)), Trustee (the "Senior Trustee"), and Subordinated
Securities will be issued under an Indenture dated as of March 15, 1999, as
supplemented from time to time (the "Subordinated Indenture"), between us and
The Bank of New York, Trustee (the "Subordinated Trustee"). The term "Trustee"
refers to either the Senior Trustee or the Subordinated Trustee, as appropriate.
We will refer to the Senior Indenture and the Subordinated Indenture together as
the "Indentures" and each as an "Indenture." The Indentures are subject to and
governed by the Trust Indenture Act of 1939, as amended (the "TIA").
Because this section is a summary, it does not describe every aspect of the
Debt Securities. This summary is subject to and qualified in its entirety by
reference to all the provisions of the Indentures, including definitions of
certain terms used in the Indentures. For example, in this section we use
capitalized words to signify terms that have been specifically defined in the
Indentures. Some of the definitions are repeated herein, but for the rest you
will need to read the Indenture. We also include references in parentheses to
certain sections of the Indentures or TIA. Whenever we refer to particular
sections or defined terms of the Indenture in this prospectus or in the
prospectus supplement, such sections or defined terms are incorporated by
reference herein or in the prospectus supplement. Unless otherwise noted, the
section numbers refer to both Indentures.
PROVISIONS APPLICABLE TO BOTH THE SENIOR AND SUBORDINATED INDENTURES
GENERAL
The Debt Securities will be unsecured obligations of ours. The Senior
Securities will rank equally with all other unsecured and unsubordinated
indebtedness of ours. The Subordinated Securities will be subordinated in right
of payment to the prior payment in full of our Senior Indebtedness as described
under "--Subordinated Indenture Provisions--Subordination".
Each Indenture provides that any Debt Securities proposed to be sold
pursuant to this prospectus and the attached 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 ("Underlying
Debt Securities"), as well as our other unsecured debt securities, may be issued
under such Indenture in one or more series.
With respect to the Offered Debt Securities and any Underlying Debt
Securities, you should read the prospectus supplement for the following terms:
(1) The title of such Debt Securities and whether such Debt Securities
will be Senior Securities or Subordinated Securities.
(2) The total principal amount of such Debt Securities and any limit on
the total principal amount of Debt Securities of such series.
(3) If not the principal amount of the Debt Securities, the portion of
the principal amount payable upon acceleration of the maturity of the Debt
Securities or how such portion will be determined.
(4) The date or dates, or how such date or dates will be determined or
extended, when the principal of such Debt Securities will be payable.
(5) The interest rate or rates which the Debt Securities will bear, if
any, or how such rate or rates will be determined, the interest payment
dates, any record dates for such payments and the basis upon which interest
will be calculated if other than that of a 360-day year of twelve 30-day
months.
(6) Any optional redemption provisions.
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(7) Any sinking fund or other provisions that would obligate us to
repurchase or otherwise redeem the Debt Securities.
(8) The form of such Debt Securities, including whether such Debt
Securities are to be issuable in permanent or temporary global form, as
Registered Securities, Bearer Securities or both, any restrictions on 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).
(9) If other than U.S. dollars, the Currency or Currencies of such Debt
Securities.
(10) Whether the amount of payments of principal, premium or interest, if
any, on such Debt Securities will be determined with reference to an index,
formula or other method (which could be based on one or more Currencies,
commodities, equity indices or other indices) and how such amounts will be
determined.
(11) The place or places, if any, other than or in addition to The City
of New York, of payment, transfer, conversion and/or exchange of such Debt
Securities.
(12) If other than denominations of $1,000 in the case of Registered
Securities and $5,000 in the case of Bearer Securities, the denominations in
which the offered Debt Securities will be issued.
(13) The applicability 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.
(14) Whether and under what circumstances we will pay Additional Amounts,
as contemplated by Section 1004 of the applicable Indenture, in respect of
any tax, assessment or governmental charge and, if so, whether we will have
the option to redeem such Debt Securities rather than pay such Additional
Amounts (and the terms of any such option).
(15) Any provisions granting special rights to the holders of such Debt
Securities upon the occurrence of such events as may be specified.
(16) Any changes or additions to the Events of Default or covenants.
(17) Whether such Debt Securities will be convertible into or
exchangeable for any other securities and the applicable terms and
conditions.
(18) Any other terms of such Debt Securities.
For purposes of this prospectus, any reference to the payment of principal
of, premium or interest, if any, on Debt Securities will include Additional
Amounts if required by the terms of such Debt Securities.
Each Indenture will not limit the amount of Debt Securities that may be
issued as authorized from time to time by us. (Section 301) Securities issued
under an Indenture, when a single Trustee is acting for all debt securities
issued under such Indenture, are the "Indenture Securities". Each Indenture also
provides that there may be more than one Trustee thereunder, each with respect
to one or more different series of Indenture Securities. See "Resignation of
Trustee" on page 15. At a time when two or more Trustees are acting under either
Indenture, each with respect to only certain series, the term "Indenture
Securities" means the one or more series of Debt Securities 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 described in this prospectus 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 be treated as if issued under separate indentures.
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The Indentures do not contain any provisions that give you protection in the
event we issue a large amount of debt or we are acquired by another entity.
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 ours that are described below, including any addition of a covenant
or other provision providing event risk or similar protection.
We have the ability to issue Indenture Securities with terms different from
those of Indenture Securities previously issued 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).
CONVERSION AND EXCHANGE
If any Debt Securities are convertible into or exchangeable for other
Securities, the prospectus supplement will explain terms and conditions of such
conversion or exchange, including the conversion price or exchange ratio (or the
calculation method), the conversion or exchange period (or how such period will
be determined), if conversion or exchange will be mandatory or at the option of
the holder or our option, provisions for adjustment of the conversion price or
the exchange ratio and provisions affecting conversion or exchange in the event
of the redemption of the Debt Securities. Such terms may also include provisions
under which the number or amount of other Securities to be received by the
holders of such Debt Securities upon conversion or exchange would be calculated
according to the market price of such other Securities as of a time stated in
the prospectus supplement.
ADDITIONAL MECHANICS
FORM, EXCHANGE AND TRANSFER
Debt Securities may be issuable:
- as Registered Securities
- as Bearer Securities (unless otherwise stated in the prospectus supplement
with interest coupons attached) (Section 201)
- as both Registered Securities and Bearer Securities
- in denominations that are even multiples of $1,000 for Registered
Securities and even multiples of $5,000 for Bearer Securities. (Section
302)
- in global form. See "--Book-Entry Debt Securities".
You may have your Registered Securities separated into more Registered
Securities of smaller denominations or combined into fewer Registered Securities
of larger denominations, as long as the total principal amount is not changed.
(Section 305) This is called an "exchange". If provided in the prospectus
supplement, you may exchange your Bearer Securities (with all unmatured coupons,
except as provided below, and all matured coupons which are in default) for
Registered Securities of the same series as long as the total principal amount
is not changed. Bearer Securities surrendered in exchange for Registered
Securities between a Regular Record Date or a Special Record Date and the
relevant interest payment dates will be surrendered without the coupon relating
to such interest payment dates, 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)
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You may transfer Registered Securities of a series and you may exchange Debt
Securities of a series at the office of the Trustee. The Trustee will act as our
agent for registering Registered Securities in the names of Holders and
transferring Debt Securities. We may change this appointment to another entity
or perform the function itself. The entity performing the role of maintaining
the list of registered Holders is called the "Registrar". The Registrar also
will perform transfers. (Section 305)
You will not be required to pay a service charge to transfer or exchange
Debt Securities, but you may be required to pay for any tax or other
governmental charge associated with the exchange or transfer. The transfer or
exchange will only be made if the Registrar is satisfied with your proof of
ownership.
If we have designated additional transfer agents, they will be named in the
accompanying prospectus supplement. We may cancel the designation of any
particular transfer agent. We may also approve a change in the office through
which any transfer agent acts.
If the Securities are redeemable and we redeem less than all of the
Securities of a particular series, we may block the transfer or exchange of
Securities during the period beginning 15 days before the day we mail the notice
of redemption or publish such notice (in the case of Bearer Securities) and
ending on the day of that mailing or publication, as the case may be, in order
to freeze the list of Holders to prepare the mailing. We may also refuse to
register transfers or exchanges of Debt Securities selected for redemption,
except that we will continue to permit transfers and exchanges of the unredeemed
portion of any Debt Security being partially redeemed. (Section 305)
If the Offered Debt Securities are redeemable, the procedures for redemption
will be described in the accompanying prospectus supplement.
PAYMENT AND PAYING AGENTS
We will pay interest to you, if you are listed in the Trustee's records as
the owner of your Debt Security at the close of business on a particular day in
advance of each due date for interest on your Debt Security, even if you no
longer own the Debt Security, on the interest due date. That particular day,
usually about two weeks in advance of the interest due date, is called the
"Record Date", while persons who are listed in the Trustee's records as the
owners of Debt Securities at the close of business on a particular day are
referred to as "Holders". (Section 307) Holders buying and selling Debt
Securities must work out between them the appropriate purchase price given that
we will pay all the interest for an interest period to the Holders on the Record
Date. The most common manner is to adjust the sales price of the Debt Securities
to prorate interest fairly between buyer and seller based on their respective
ownership periods within the particular interest period. This prorated interest
amount is called "accrued interest".
We will deposit interest, principal and any other money due on the Debt
Securities with the Paying Agent specified in the prospectus supplement.
IF YOU PLAN TO HAVE A BANK OR BROKERAGE FIRM HOLD YOUR SECURITIES, YOU SHOULD
ASK SUCH BANK OR BROKERAGE FIRM FOR INFORMATION ON HOW YOU WILL RECEIVE
PAYMENTS. (Section 305)
If Bearer Securities are issued, unless otherwise provided in the prospectus
supplement, we will maintain an office or agency outside the United States for
the payment of all amounts due on the Bearer Securities. If Debt Securities are
listed on the Luxembourg Stock Exchange or any other stock exchange located
outside the United States, we 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) The initial locations of such offices and agencies will
be specified in the prospectus supplement. Unless otherwise provided in the
prospectus supplement, payment of interest on any
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Bearer Securities on or before Maturity will be made only against surrender of
coupons for such interest installments as they mature. (Section 1001) Unless
otherwise provided in the prospectus supplement, no payment with respect to any
Bearer Security will be made at any office or agency of ours 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, premium and interest, if any, on Bearer
Securities payable in U.S. dollars will be made at the office of our Paying
Agent in The City of New York if (but only if) payment of the full amount 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)
We 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.
EVENTS OF DEFAULT
You will have special rights if an Event of Default occurs in respect of the
Debt Securities of your series and is not cured, as described later in this
subsection. (Section 501)
WHAT IS AN EVENT OF DEFAULT? The term "Event of Default" in respect of the
Debt Securities of your series means any of the following:
- We do not pay the principal of or any premium on a Debt Security of such
series on its due date.
- We do not pay interest on a Debt Security of such series within 30 days of
its due date.
- We do not deposit any sinking fund payment in respect of Debt Securities
of such series on its due date.
- We remain in breach of a covenant in respect of Debt Securities of such
series for 60 days after we receive a written notice of default stating we
are in breach. The notice must be sent by either the Trustee or Holders of
25% of the principal amount of Debt Securities of such series.
- We file for bankruptcy or certain other events in bankruptcy, insolvency
or reorganization occur.
- Any other Event of Default in respect of Debt Securities of such series
described in the prospectus supplement occurs. (Section 501)
An Event of Default for a particular series of Debt Securities does not
necessarily constitute an Event of Default for any other series of Debt
Securities issued under an Indenture. The Trustee may withhold notice to the
Holders of Debt Securities of any default (except in the payment of principal or
interest) if it considers such withholding of notice to be in the best interests
of the Holders. (Section 601)
REMEDIES IF AN EVENT OF DEFAULT OCCURS. If an Event of Default has occurred
and has not been cured, the Trustee or the Holders of 25% in principal amount of
the Debt Securities of the affected series may declare the entire principal
amount of all the Debt Securities of that series to be due and immediately
payable. This is called a declaration of acceleration of maturity. A declaration
of acceleration of maturity may be canceled by the Holders of at least a
majority in principal amount of the Debt Securities of the affected series.
(Section 502)
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Except in cases of default, where the Trustee has some special duties, the
Trustee is not required to take any action under the Indenture at the request of
any Holders unless the Holders offer the Trustee reasonable protection from
expenses and liability (called an "indemnity"). (Section 507 and TIA Section
315) If reasonable indemnity is provided, the Holders of a majority in principal
amount of the Outstanding Debt Securities of the relevant series may direct the
time, method and place of conducting any lawsuit or other formal legal action
seeking any remedy available to the Trustee. The Trustee may refuse to follow
those directions in certain circumstances. (Section 512) No delay or omission in
exercising any right or remedy will be treated as a waiver of such right, remedy
or Event of Default. (Section 511)
Before you are allowed to bypass the Trustee and bring your own lawsuit or
other formal legal action or take other steps to enforce your rights or protect
your interests relating to the Debt Securities, the following must occur:
- You must give the Trustee written notice that an Event of Default has
occurred and remains uncured.
- The Holders of 25% in principal amount of all outstanding Debt Securities
of the relevant series must make a written request that the Trustee take
action because of the default and must offer the Trustee indemnity
satisfactory to the Trustee against the cost and other liabilities of
taking that action.
- The Trustee must not have taken action for 60 days after receipt of the
above notice and offer of indemnity.
- The Holders of a majority in principal amount of the Debt Securities must
not have given the Trustee a direction inconsistent with the above notice.
(Section 512)
However, you are entitled at any time to bring a lawsuit for the payment of
money due on your Debt Securities on or after the due date. (Section 508)
Holders of a majority in principal amount of the Debt Securities of the
affected series may waive any past defaults other than (1) the payment of
principal, any premium, interest or Additional Amounts or (2) in respect of a
covenant that cannot be modified or amended without the consent of each Holder.
(Section 513)
IF YOUR SECURITIES ARE HELD FOR YOU BY A BANK OR BROKERAGE FIRM, YOU SHOULD
CONSULT SUCH BANK OR BROKERAGE FIRM FOR INFORMATION ON HOW TO GIVE NOTICE OR
DIRECTION TO OR MAKE A REQUEST OF THE TRUSTEE AND TO MAKE OR CANCEL A
DECLARATION OF ACCELERATION.
Each year, we will furnish to the Trustee a written statement of certain of
our officers certifying that to their knowledge we are in compliance with the
Indenture and the Debt Securities, or else specifying any default. (Section
1005)
MERGER OR CONSOLIDATION
Under the terms of the Indentures, we are generally permitted to consolidate
or merge with another firm. We are also permitted to sell all or substantially
all of our assets to another firm (Section 801). However, we may not take any of
these actions unless all the following conditions are met:
- Where we merge out of existence or sell our assets, the other firm must
agree to be legally responsible for the Debt Securities. (Section 801)
- The merger or sale of assets must not cause a default on the Debt
Securities and we must not already be in default (unless the merger or
sale would cure the default). For purposes of
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this no-default test, a default would include an Event of Default that has
occurred and not been cured, as described on page 9 under "--What is An
Event of Default?" A default for this purpose would also include any event
that would be an Event of Default if the requirements for giving us
default notice or our default having to exist for a specific period of
time were disregarded. (Section 801)
- Under the Senior Indenture, no merger or sale of assets may be made if as
a result any of our property or assets or a Subsidiary's would become
subject to any mortgage, lien or other encumbrance unless either (1) such
mortgage, lien or other encumbrance could be created pursuant to Section
1006 of such Indenture (see "--Senior Indenture Provisions-- Limitation on
Liens" below) without equally and ratably securing the Indenture
Securities or (2) such Indenture Securities are secured equally and
ratably with or prior to the debt secured by such mortgage, lien or other
encumbrance. (Section 801)
- We must deliver certain certificates and documents to the Trustee.
(Section 801)
- We must satisfy any other requirements specified in the prospectus
supplement.
MODIFICATION OR WAIVER
There are three types of changes we can make to the Indenture and the Debt
Securities.
CHANGES REQUIRING YOUR APPROVAL. First, there are changes that cannot be
made to your Debt Securities without your specific approval. (Section 902)
Following is a list of those types of changes:
- change the Stated Maturity of the principal of or interest on a Debt
Security;
- reduce any amounts due on a Debt Security;
- reduce the amount of principal payable upon acceleration of the Maturity
of a Debt Security following a default;
- adversely affect any right of repayment at the Holder's option;
- change the place (except as otherwise described in this prospectus) or
currency of payment on a Debt Security;
- impair your right to sue for payment;
- adversely affect any right to convert or exchange a Debt Security in
accordance with its terms;
- modify the subordination provisions in the Subordinated Indenture in a
manner that is adverse to holders of the Subordinated Securities;
- reduce the percentage of Holders of Debt Securities whose consent is
needed to modify or amend the Indenture;
- reduce the percentage of Holders of Debt Securities whose consent is
needed to waive compliance with certain provisions of the Indenture or to
waive certain defaults;
- modify any other aspect of the provisions of the Indenture dealing with
modification and waiver of past defaults (Section 513) or changes to the
quorum or voting requirements of Section 1504 or waiver of certain
covenants (Section 1008 of the Senior Indenture and Section 1006 of the
Subordinated Indenture); and
- change any obligation of ours to pay Additional Amounts.
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CHANGES REQUIRING A MAJORITY VOTE. The second type of change to the
Indenture and the Outstanding Debt Securities is the kind that requires a vote
in favor by Holders of Outstanding Debt Securities owning a majority of the
principal amount of the particular series affected. Most changes fall into this
category, except for clarifying changes and certain other changes that would not
adversely affect Holders of the Outstanding Debt Securities in any material
respect. The same vote would be required for us to obtain a waiver of all or
part of certain covenants in the applicable Indenture (Section 1008 of the
Senior Indenture; Section 1006 of the Subordinated Indenture), or a waiver of a
past default. However, we cannot obtain a waiver of a payment default or any
other aspect of the Indentures or the Outstanding Debt Securities listed in the
first category described previously under "--Changes Requiring Your Approval"
unless we obtain your individual consent to the waiver.
CHANGES NOT REQUIRING APPROVAL. The third type of change does not require
any vote by Holders of Outstanding Debt Securities. This type is limited to
clarifications and certain other changes that would not adversely affect Holders
of the Outstanding Debt Securities in any material respect. (Section 901)
FURTHER DETAILS CONCERNING VOTING. When taking a vote, we will use the
following rules to decide how much principal amount to attribute to a Debt
Security:
- For Original Issue Discount Securities, we will use the principal amount
that would be due and payable on the voting date if the Maturity of the
Debt Securities were accelerated to that date because of a default.
- For Debt Securities whose principal amount is not known (for example,
because it is based on an index), we will use a special rule for that Debt
Security described in the prospectus supplement.
- For Debt Securities denominated in one or more foreign currencies or
currency units, we will use the U.S. dollar equivalent.
Debt Securities will not be considered Outstanding, and therefore not
eligible to vote, if we have deposited or set aside in trust for you money for
their payment or redemption. Debt Securities will also not be eligible to vote
if they have been fully defeased as described later under "Defeasance--Full
Defeasance." (Section 101)
We will generally be entitled to set any day as a record date for the
purpose of determining the Holders of Outstanding Indenture Securities that are
entitled to vote or take other action under the Indentures. If we set a record
date for a vote or other action to be taken by Holders of a particular series,
that vote or action may be taken only by persons who are Holders of Outstanding
Indenture Securities of that series on the record date and must be taken within
180 days following the record date or another period that we may specify. We may
shorten or lengthen this period from time to time. (Section 104)
IF YOUR SECURITIES ARE HELD BY A BANK OR BROKERAGE FIRM, YOU SHOULD CONSULT SUCH
BANK OR BROKERAGE FIRM FOR INFORMATION ON HOW APPROVAL MAY BE GRANTED OR DENIED
IF WE SEEK TO CHANGE THE INDENTURE OR THE DEBT SECURITIES OR REQUEST A WAIVER.
Each Indenture contains provisions for convening meetings of the Holders of
Debt Securities issued as Bearer Securities. (Section 1501) A meeting may be
called at any time by the applicable Trustee, and also, upon request, by us or
the Holders of at least 10% in principal amount of the Outstanding Debt
Securities of that series, upon notice given as provided in the applicable
Indenture. (Section 1502) Except for any consent that must be given by the
Holder of each Debt Security affected thereby, as described above, any
resolution presented at a meeting (or an adjourned
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meeting duly reconvened) at which a quorum is present may be adopted by the
Holders of a majority in principal amount of the Outstanding Debt Securities of
that series; except, that any resolution that the Holders of a specified
percentage (which is less than a majority in principal amount of the Outstanding
Debt Securities of a series) may adopt or may be adopted at a meeting (or an
adjourned meeting duly reconvened) at which a quorum is present by vote of the
specified percentage of Holders of the Outstanding Debt Securities of that
series. Any resolution passed or decision taken at any meeting of Holders of
Debt Securities of a series in accordance with the applicable Indenture will be
binding on all Holders of Debt 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 Debt
Securities of a series, except that if any action is to be taken at such meeting
which may be given by the Holders of not less than a specified percentage in
principal amount of the Outstanding Debt Securities of a series, the persons
holding or representing such specified percentage in principal amount of the
Outstanding Debt Securities of that series will constitute a quorum. (Section
1504)
Notwithstanding the above, if any action is to be taken at a meeting of
Holders of Debt Securities of a series that the applicable Indenture expressly
provides may be taken by the Holders of a specified percentage in principal
amount of all Outstanding Debt Securities affected thereby or of the Holders of
such series and one or more additional series: (1) there will be no minimum
quorum requirement for such meeting and (2) the principal amount of the
Outstanding Debt Securities of such series that vote in favor of such action
will be taken into account in determining whether such action has been made,
given or taken under such Indenture. (Section 1504)
DEFEASANCE
The following discussion of full defeasance and covenant defeasance will be
applicable to your series of Debt Securities only if we choose to have them
apply to that series. If we do so choose, we will specify the choice in the
prospectus supplement. (Section 1401)
FULL DEFEASANCE. If there is a change in federal tax law, as described
below, we can legally release ourselves from all payment and other obligations
on the Debt Securities (called "full defeasance") if we put in place the
following other arrangements for you to be repaid:
- We must deposit in trust for your benefit and the benefit of all other
direct Holders of the Debt Securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the Debt
Securities on their various due dates.
- We must deliver to the Trustee a legal opinion confirming that there has
been a change in current federal tax law or an IRS ruling that lets us
make the above deposit without causing you to be taxed on the Debt
Securities any differently than if we did not make the deposit at
Maturity. (Sections 1403 and 1404) (Under current federal tax law, the
deposit and our legal release from the Debt Securities would be treated as
though we paid you your share of the cash and notes or bonds at the time
such cash and notes or bonds are deposited in trust in exchange for your
Debt Securities and you would recognize gain or loss on the Debt
Securities at the time of the deposit.)
If we ever did accomplish full defeasance, as described above, you would have to
rely solely on the trust deposit for repayment of the Debt Securities. You could
not look to us for repayment in the unlikely event of any shortfall. Conversely,
the trust deposit would most likely be protected from claims of our lenders and
other creditors if we ever become bankrupt or insolvent. You would also be
released from the subordination provisions on the Subordinated Debt Securities
described later under "Subordination" on page 18.
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COVENANT DEFEASANCE. Under current federal tax law, we can make the same
type of deposit described above and be released from some of the restrictive
covenants in the Indentures. This is called "covenant defeasance." In that
event, you would lose the protection of those restrictive covenants but would
gain the protection of having money and debt securities set aside in trust to
repay the Debt Securities. You also would be released from the subordination
provisions on the Subordinated Securities described under "Subordination" on
page 18. In order to achieve covenant defeasance, we must do the following:
- We must deposit in trust for your benefit and the benefit of all other
direct Holders of the Debt Securities a combination of money and U.S.
government or U.S. government agency notes or bonds that will generate
enough cash to make interest, principal and any other payments on the Debt
Securities on their various due dates.
- We must deliver to the Trustee a legal opinion of our counsel confirming
that under current federal income tax law we may make the above deposit
without causing you to be taxed on the Debt Securities any differently
than if we did not make the deposit and just repaid the Debt Securities
ourselves.
If we accomplish covenant defeasance, you can still look to us for repayment
of the Debt Securities if there were a shortfall in the trust deposit or the
trustee is prevented from making payment. In fact, if one of the remaining
Events of Default occurred (such as our bankruptcy) and the Debt Securities
become immediately due and payable, there may be such a shortfall. Depending on
the event causing the default, you may not be able to obtain payment of the
shortfall.
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"). Global Securities will be registered in the name of a financial
institution we select, and the Debt Securities included in the Global Securities
may not be transferred to the name of any other direct Holder unless the special
circumstances described below occur. The financial institution that acts as the
sole direct Holder of the Global Security is called the "Depositary". Any person
wishing to own a Debt Security must do so indirectly by virtue of an account
with a broker, bank or other financial institution that, in turn, has an account
with the Depositary.
SPECIAL INVESTOR CONSIDERATIONS FOR GLOBAL SECURITIES. Our obligation, as
well as the obligations of the Trustee and those of any third parties employed
by us or the Trustee, run only to Persons who are registered as Holders of Debt
Securities. For example, once we make payment to the registered Holder, we have
no further responsibility for the payment even if that Holder is legally
required to pass the payment along to you but does not do so. As an indirect
holder, an investor's rights relating to a Global Security will be governed by
the account rules of the investor's financial institution and of the Depositary,
as well as general laws relating to debt securities transfers.
An investor should be aware that when Debt Securities are issued in the form
of Global Securities:
- The investor cannot get Debt Securities registered in his or her own name.
- The investor cannot receive physical certificates for his or her interest
in the Debt Securities.
- The investor must look to his or her own bank or brokerage firm for
payments on the Debt Securities and protection of his or her legal rights
relating to the Debt Securities.
14
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- The investor may not be able to sell interests in the Debt Securities to
some insurance companies and other institutions that are required by law
to hold the physical certificates of Debt Securities that they own.
- The Depositary's policies will govern payments, transfers, exchange and
other matters relating to the investor's interest in the Global Security.
We and the Trustee have no responsibility for any aspect of the
Depositary's actions or for its records of ownership interests in the
Global Security. We and the Trustee also do not supervise the Depositary
in any way.
- The Depositary will usually require that interests in a Global Security be
purchased or sold within its system using same-day funds.
DTC management is aware that some computer applications, systems, and the
like for processing data ("Systems") that are dependent upon calendar dates,
including dates before, on, and after January 1, 2000, may encounter "Year 2000
problems." DTC has informed its participants and other members of the financial
community (the "Industry") that it has developed and is implementing a program
so that its Systems, as the same relate to the timely payment of distributions
(including principal and income payments) to securityholders, book-entry
deliveries, and settlement of trades within DTC ("DTC Services"), continue to
function appropriately. This program includes a technical assessment and a
remediation plan, each of which is complete. Additionally, DTC's plan includes a
testing phase, which is expected to be completed within appropriate time frames.
However, DTC's ability to perform properly its services is also dependent
upon other parties, including but not limited to issuers and their agents, as
well as DTC's direct and indirect participants and third party vendors to whom
DTC licenses software and hardware, and third party vendors from whom DTC relies
for information or the provision of services, including telecommunication and
electrical utility service providers, among others. DTC has informed the
Industry that it is contacting (and will continue to contact) third party
vendors from whom DTC acquires services to: (i) impress upon them the importance
of such services being Year 2000 compliant; and (ii) determine the extent of
their efforts for Year 2000 remediation (and, as appropriate, testing) of their
services. In addition, DTC is in the process of developing such contingency
plans as it deems appropriate.
According to DTC, the foregoing information with respect to DTC has been
provided to the Industry for informational purposes only and is not intended to
serve as a representation, warranty, or contract modification of any kind.
SPECIAL SITUATIONS WHEN GLOBAL SECURITY WILL BE TERMINATED. In a few
special situations described later, the Global Security will terminate and
interests in it will be exchanged for physical certificates representing Debt
Securities. After that exchange, the choice of whether to hold Debt Securities
directly or indirectly through an account at its bank or brokerage firm will be
up to the investor. Investors must consult their own banks or brokers to find
out how to have their interests in Debt Securities transferred to their own
names, so that they will be direct Holders.
The special situations for termination of a Global Security are:
- When the Depositary notifies us that it is unwilling, unable or no longer
qualified to continue as Depositary (unless a replacement Depositary is
named).
- When an Event of Default on the Debt Securities has occurred and has not
been cured. (Defaults are discussed under "Events of Default" on page 9.)
- When and if we decide to terminate a Global Security.
The prospectus supplement may list situations for terminating a Global
Security that would apply only to the particular series of Debt Securities
covered by the prospectus supplement. When
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<PAGE>
a Global Security terminates, the Depositary (and not we or the Trustee) is
responsible for deciding the names of the institutions that will be the initial
direct Holders. 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. Section 302
IN THE "ADDITIONAL MECHANICS" SECTION OF THIS DESCRIPTION, "YOU" MEANS DIRECT
HOLDERS AND NOT INDIRECT HOLDERS OF DEBT SECURITIES.
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) 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 shall be a Trustee of a trust separate
and apart from the trust administered by any other such Trustee (Section 609),
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
We covenant in the Senior Indenture that we will not, nor will we 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 ours 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: (1) 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 to
any Important Property already owned by us or a Restricted Subsidiary other than
previously unimproved real property; (2) existing mortgages on any property
acquired from a corporation merged with or into, or substantially all of the
assets of which are acquired by, us or a Restricted Subsidiary; (3) mortgages on
property of any corporation existing at the time it becomes a Restricted
Subsidiary; (4) mortgages securing Debt owed by a Restricted Subsidiary to us or
to another Restricted Subsidiary; (5) 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; (6) sales of
receivables that are reflected as secured indebtedness; (7) certain other liens
not related to the borrowing of money; (8) extensions, renewals or replacements
of the foregoing; (9) mortgages on margin stock owned by us and Restricted
Subsidiaries to the extent such margin stock exceeds 25% of the fair market
value of Important Property of ours and the Restricted Subsidiaries plus certain
stock and indebtedness of the Restricted Subsidiaries; and (10) 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)
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The foregoing restrictions do not apply to the incurrence, assumption or
guarantee by us 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 (3) or (4) 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 (1)
above), does not exceed 5% of our Consolidated Net Tangible Assets including our
consolidated subsidiaries, as shown on the audited consolidated balance sheet
contained in the latest annual report to our stockholders. (Section 1006 of the
Senior Indenture)
The term "Restricted Subsidiary" is defined in the Senior Indenture to mean
any subsidiary (1) engaged in, or whose principal assets consist of property
used by us 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 we have, directly or indirectly, an investment under an
arrangement providing for the liquidation of such investment; or (2) which we
designate as a Restricted Subsidiary. (Section 1006 of the Senior Indenture)
The term "Important Property" is defined in the Senior Indenture to include:
(1) any manufacturing plant, including its machinery and equipment, used by us
or a Restricted Subsidiary primarily for the manufacture of products to be sold
by us or such Restricted Subsidiary; (2) our executive office and administrative
building in Moline, Illinois; and (3) 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 our Consolidated Net
Tangible Assets including our consolidated subsidiaries, as shown on the audited
consolidated balance sheet contained in the latest annual report to our
stockholders. (Section 1006 of the Senior Indenture)
LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS
We covenant in the Senior Indenture that we will not nor will we permit any
Restricted Subsidiary to enter into any arrangement with any Person providing
for the leasing to us 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 us 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 (1) we 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 (1) of the first paragraph under "Limitation
on Liens" above; (2) the Attributable Debt associated with such property would
be an amount permitted under the second paragraph under "Limitation on Liens"
above; (3) we apply an amount equal to the fair value of such Important Property
to the retirement of Indenture Securities or certain long-term indebtedness of
ours or a Restricted Subsidiary, as the case may be; or (4) we enter 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 Important Property.
(Section 1007 of the Senior Indenture)
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SUBORDINATED INDENTURE PROVISIONS
SUBORDINATION
Upon any distribution of our assets in the event of 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 our obligation 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 us 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 our assets, 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 of our general creditors may
recover more, ratably, than holders of the Subordinated Securities. The
Subordinated Indenture provides that the subordination provisions 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 (1) indebtedness of
ours (including indebtedness of others guaranteed by us), 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 (2) 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 and The Bank of New York are two of a number of
banks with which we maintain ordinary banking relationships and from which we
have obtained credit facilities and lines of credit. The Chase Manhattan Bank
also serves as trustee under other indentures under which we are the obligor or
John Deere Capital Corporation is the obligor. Hans W. Becherer, our Chairman
and the Chairman of John Deere Capital Corporation and John R. Stafford, one of
our directors, are also directors of The Chase Manhattan Bank and its parent,
The Chase Manhattan Bank Corporation. The Bank of New York also serves as
trustee under other indentures under which John Deere Capital Corporation is the
obligor.
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CERTAIN CONSIDERATIONS RELATING TO FOREIGN CURRENCIES
Debt Securities denominated or payable in foreign Currencies 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 and potential illiquidity in the
secondary market. These risks will vary depending upon the Currency or
Currencies involved and will be more fully described in the applicable
prospectus supplement.
DESCRIPTION OF DEBT WARRANTS
We may issue (either together with other Offered Securities or separately)
Debt Warrants to purchase Underlying Debt Securities ("Offered Debt Warrants").
Such Debt Warrants will be issued under warrant agreements (each a "Debt Warrant
Agreement") to be entered into between us and a bank or trust company, as
warrant agent (the "Debt Warrant Agent"), as described 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 the Debt Warrant
Agreement is not complete and is subject to, and are qualified in its entirety
by reference to, all the provisions of the Debt Warrant Agreement and the
accompanying Debt Warrant certificates, including the definitions therein of
certain terms.
GENERAL
You should read 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) Any optional redemption terms.
(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
Underlying Debt Securities will be separately transferable.
(9) Any other terms of such Debt Warrants.
If applicable, the prospectus supplement will also set forth information
concerning 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 we 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.
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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 expiration date, unexercised Debt
Warrants will become void.
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, 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, we 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
There are three types of changes we can make to the Debt Warrant Agreement
and the Offered Debt Warrants.
CHANGES REQUIRING YOUR APPROVAL. First, there are changes that cannot be
made to your Debt Warrants without your specific approval. Those types of
changes include modifications and amendments that:
- accelerate the expiration date,
- increase the exercise price,
- reduce the number of outstanding Debt Warrants, the consent of the holders
of which is required for any such modification or amendment,
- otherwise materially and adversely affect the rights of the holders of the
Debt Warrants.
CHANGES REQUIRING A MAJORITY VOTE. The second type of change to the Debt
Warrant Agreement and the Offered Debt Warrants is the kind that requires a vote
in favor by Holders of Debt Warrants owning a majority of the principal amount
of the particular series affected. Most changes fall into this category.
CHANGES NOT REQUIRING APPROVAL. The third type of change does not require
any vote by holders of Debt Warrants. This type of change is limited to
clarifications and other changes that would not materially and adversely affect
holders of the Debt Warrants.
NO RIGHTS AS HOLDERS OF UNDERLYING DEBT SECURITIES
Before the warrants are exercised, Holders of Debt Warrants are not entitled
to payments of principal of premium, or interest, if any, on the related
Underlying Debt Securities or to exercise any other rights whatsoever as holders
of the Underlying Debt Securities.
PLAN OF DISTRIBUTION
We may sell the Offered Securities (a) through agents; (b) to or through
underwriters; or (c) directly to other purchasers. Any underwriters or agents
will be identified and their compensation described in a prospectus supplement.
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We (directly or through agents) may sell, and the underwriters may resell,
the Offered Securities in one or more transactions, including negotiated
transactions, at a fixed public offering price or prices, which may be changed,
or at market prices prevailing at the time of sale, at prices related to such
prevailing market prices or at negotiated prices.
In connection with the sale of Offered Securities, the underwriters or
agents may receive compensation from us or from purchasers of the Offered
Securities for whom they may act as agents. The underwriters may sell Offered
Securities to or through dealers, who may also receive compensation from
purchasers of the Offered Securities for whom they may act as agents.
Compensation may be in the form of discounts, concessions or commissions.
Underwriters, dealers and agents that participate in the distribution of the
Offered Securities may be underwriters as defined in the Securities Act of 1933
(the "Act"), and any discounts or commissions received by them from us and any
profit on the resale of the Offered Securities by them may be treated as
underwriting discounts and commissions under the Act.
We will indemnify the underwriters and agents against certain civil
liabilities, including liabilities under the Act.
Underwriters, dealers and agents may engage in transactions with, or perform
services for, us or our affiliates in the ordinary course of their businesses.
If so indicated in the prospectus supplement relating to a particular series
or issue of Offered Securities, we will authorize underwriters, dealers or
agents to solicit offers by certain institutions to purchase such Offered
Securities from us 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 us by Shearman &
Sterling, 599 Lexington Avenue, New York, New York 10022, and for any
underwriters, dealers or agents by Brown & Wood LLP, One World Trade Center, New
York, New York 10048.
EXPERTS
The financial statements incorporated in this prospectus by reference from
our Annual Report on Form 10-K have been audited by Deloitte & Touche LLP,
independent auditors, as stated in their report, which is incorporated herein by
reference, and have been so incorporated in reliance upon the report of such
firm given upon their authority as experts in accounting and auditing.
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[logo]
U.S. $1,450,000,000
DEERE & COMPANY
MEDIUM-TERM NOTES,
SERIES C
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PROSPECTUS SUPPLEMENT
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MERRILL LYNCH & CO.
GOLDMAN, SACHS & CO.
, 1999
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<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........................................... $ 278,000
Printing and engraving............................................ 100,000
Legal fees and expenses........................................... 120,000
Fees of accountants............................................... 60,000
Fees of trustee................................................... 20,000
Blue sky fees and expenses........................................ 5,000
Rating agency fees................................................ 230,000
Miscellaneous..................................................... 5,000
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Total......................................................... $ 818,000
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</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 8 of the distribution agreement filed as Exhibit 1.1 to this
registration statement provides for indemnification of each agent and its
controlling persons by the registrant, against certain liabilities. Similar
provisions are contained in agreements entered into between the registrant and
groups of agents 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.
II-1
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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) 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.
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EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
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<S> <C>
1.1 Proposed form of distribution agreement
1.2 Proposed form of terms agreement and underwriting agreement basic provisions for Debt Securities (Exhibit
1.1 to registration statement on Form S-3 no. 33-54149*)
4.1 Senior indenture between the registrant and The Chase Manhattan Bank (successor by merger to The Chase
Manhattan Bank (National Association))
4.2 Proposed form of senior fixed rate medium-term note
4.3 Proposed form of senior fixed rate indexed medium-term note
4.4 Proposed form of senior floating rate medium-term note
4.5 Proposed form of senior floating rate indexed medium-term note
4.6 Proposed form of fixed rate redeemable or non-redeemable senior security (Exhibit 4.2 to registration
statement on Form S-3 no. 33-54149*)
4.7 Proposed form of subordinated indenture between the registrant and The Bank of New York
4.8 Proposed form of subordinated fixed rate medium-term note
4.9 Proposed form of subordinated floating rate medium-term note
4.10 Proposed form of fixed rate redeemable or non-redeemable subordinated security (Exhibit 4.4 to
registration statement on Form S-3 no. 33-54149*)
4.11 Proposed form of debt warrant agreement (Exhibit 4.12 to registration statement on Form S-3 no.
33-54149*)
5 Opinion of Shearman & Sterling
8 Opinion of Shearman & Sterling with respect to tax matters
12 Deere & Company and Consolidated Subsidiaries computation of ratio of earnings before fixed charges to
fixed charges (Exhibit 12 to Form 10-K for the fiscal year ended October 31, 1998*)
23.1 Consent of Deloitte & Touche LLP
23.2 Consent of Shearman & Sterling (included in their opinion filed as Exhibit 5)
23.3 Consent of Shearman & Sterling (included in their opinion filed as Exhibit 8)
24 Power of Attorney (included on signature page)
25.1 Statement of eligibility of The Chase Manhattan Bank 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
</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 March 3, 1999.
<TABLE>
<S> <C> <C>
DEERE & COMPANY
By: /s/ HANS W. BECHERER
-----------------------------------------
HANS W. BECHERER
CHAIRMAN AND CHIEF EXECUTIVE OFFICER
</TABLE>
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 Nathan
J. Jones, 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>
Chairman, Director and
/s/ HANS W. BECHERER Chief Executive Officer
- ------------------------------ (principal executive
HANS W. BECHERER officer)
/s/ JOHN R. BLOCK
- ------------------------------ Director March 3, 1999
JOHN R. BLOCK
/s/ LEONARD A. HADLEY
- ------------------------------ Director
LEONARD A. HADLEY
/s/ REGINA E. HERZLINGER
- ------------------------------ Director
REGINA E. HERZLINGER
/s/ SAMUEL C. JOHNSON
- ------------------------------ Director
SAMUEL C. JOHNSON
Senior Vice President,
/s/ NATHAN J. JONES Principal Financial
- ------------------------------ Officer and Principal
NATHAN J. JONES Accounting Officer
/s/ ARTHUR L. KELLY
- ------------------------------ Director
ARTHUR L. KELLY
/s/ ANTONIO MADERO B.
- ------------------------------ Director
ANTONIO MADERO B.
/s/ WILLIAM A. SCHREYER
- ------------------------------ Director
WILLIAM A. SCHREYER
/s/ JOHN R. STAFFORD
- ------------------------------ Director
JOHN R. STAFFORD
/s/ JOHN R. WALTER
- ------------------------------ Director
JOHN R. WALTER
/s/ ARNOLD R. WEBER
- ------------------------------ Director
ARNOLD R. WEBER
</TABLE>
II-4
<PAGE>
DEERE & COMPANY
Medium-Term Notes, Series C
Due from 9 Months to 30 Years from Date of Issue
DISTRIBUTION AGREEMENT
, 1999
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower, 10th Floor
New York, New York 10281-1310
GOLDMAN, SACHS & CO.
85 Broad Street
New York, New York 10004
Dear Sirs:
Deere & Company, a Delaware corporation (the "Company"), confirms its
agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith
Incorporated and Goldman, Sachs & Co. (each, an "Agent", and collectively,
the "Agents"), with respect to the issue and sale by the Company of its
Medium-Term Notes, Series C, Due from 9 Months to 30 Years from Date of Issue
described herein (the "Notes"). The Notes may be issued as senior
indebtedness (the "Senior Notes") or as subordinated indebtedness (the
"Subordinated Notes") of the Company. The Senior Notes are to be issued as a
series under an indenture, dated as of July 1, 1994 (the "Senior Indenture"),
between the Company and The Chase Manhattan Bank (successor by merger to The
Chase Manhattan Bank (National Association)), trustee (the "Senior Trustee")
and the Subordinated Notes are to be issued as a series under an indenture,
dated as of March 15, 1999 (the "Subordinated Indenture", and together with
the Senior Indenture, the "Indentures"), between the Company and The Bank of
New York, trustee (the "Subordinated Trustee", and together with the Senior
Trustee, the "Trustees"). As of the date hereof, the Company has authorized
the issuance and sale of up to U.S. $1,450,000,000 aggregate principal amount
(or its equivalent, based upon the applicable exchange rate at the time of
the applicable trade date, in one or more foreign currencies or currency
units or composite currencies designated by the Company) of Notes through or
to one or more of the Agents pursuant to the terms of this Agreement. It is
understood, however, that the Company may from time to time authorize the
issuance of additional Notes and that such additional Notes may be sold
through or to one or more of the Agents pursuant to the terms of this
Agreement, all as though the issuance of such Notes were authorized as of the
date hereof.
<PAGE>
This Agreement provides both for the sale of Notes by the Company
through the Agents directly to purchasers, in which case the Agents will act
as agents of the Company in soliciting purchases of the Notes, and (as may
from time to time be agreed to by the Company and an Agent) to an Agent as
principal for resale to investors and other purchasers. In addition,
notwithstanding anything herein to the contrary, the Company may, without the
consent of the Agents, solicit or accept offers to purchase Notes from any
person for their account ("direct placements"). It is understood that the
Agents are not acting as agents of the Company in direct placements.
The Company has filed with the Securities and Exchange Commission (the
"SEC") registration statements on Form S-3 (Nos. 33-54165 and 333- ) and
post-effective amendment No. 1 to the registration statement No. 33-54165 for
the registration of debt securities, including the Notes, and warrants to
purchase such debt securities, under the Securities Act of 1933, as amended
(the "1933 Act"), and the offering thereof from time to time in accordance
with Rule 415 of the rules and regulations of the SEC under the 1933 Act (the
"1933 Act Regulations"). Registration statement on Form S-3 (No. 333- )
and post-effective amendment No. 1 to the registration statement on Form S-3
(No. 33-54165) have been declared effective by the SEC and each Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act"). Such registration statements (and any further registration statements
which may be filed by the Company for the purpose of registering additional
Notes and in connection with which this Agreement is included as an exhibit)
and the prospectuses constituting a part thereof, and any prospectus
supplements relating to the Notes, including all documents incorporated
therein by reference, as from time to time amended or supplemented by the
filing of documents pursuant to the Securities Exchange Act of 1934, as
amended (the "1934 Act"), or as otherwise amended or supplemented pursuant to
the 1933 Act or otherwise, are referred to herein collectively as the
"Registration Statement" and the "Prospectus", respectively, except that if
any revised prospectus shall be provided to the Agents by the Company for use
in connection with the offering of the Notes which is not required to be
filed by the Company pursuant to Rule 424(b) of the 1933 Act Regulations, the
term "Prospectus" shall refer to such revised prospectus from and after the
time it is first provided to the Agents for such use.
The Company and the Agents acknowledge that the Distribution Agreement,
dated July 14, 1994, between the Company and the Agents is hereby terminated
subject to the provisions of Section 12(c) and Section 14 thereof.
SECTION 1. APPOINTMENT AS AGENTS.
(a) APPOINTMENT OF AGENTS. Subject to the terms and conditions
stated herein and subject to the reservation by the Company of the right to
sell Notes directly on its own behalf, without the consent of the Agents, the
Company hereby (i) appoints the Agents as agents for the purpose of
soliciting purchases of Notes from the Company by others and (ii) agrees that
whenever the Company determines to sell Notes directly to an Agent as
principal for resale to others, it will enter into a Terms Agreement
(hereafter defined) relating to such sale in accordance with the provisions
of Section 3(b) hereof. Subject to the provisions of Section 3(b), the
Agents are not authorized to appoint sub-agents or to engage the services of
any other broker or dealer in connection with the offer or sale of the Notes.
The Company may, without the consent of the Agents, appoint other persons as
agents for the purpose of soliciting purchases of
2
<PAGE>
Notes from the Company by others; provided, however, that in the event that
the Company so appoints one or more other persons, the Company and such
person or persons shall execute a counterpart to this Agreement, whereupon
from and after the date of such execution, the term "Agent" shall include
such person or persons and such person or persons shall be subject to the
terms and conditions stated herein.
(b) REASONABLE BEST EFFORTS SOLICITATIONS; RIGHT TO REJECT OFFERS.
Upon receipt of instructions from the Company, each Agent will use its
reasonable best efforts to solicit purchases of such principal amount of
Notes as the Company and such Agent shall agree upon from time to time during
the term of this Agreement, it being understood that the Company shall not
approve the solicitation of purchases of Notes in excess of the amount which
shall be authorized by the Company from time to time. Each Agent will
communicate to the Company, orally or in writing, each offer to purchase
Notes, other than those offers rejected by such Agent. Each Agent shall have
the right, in its discretion reasonably exercised, to reject any proposed
purchase of Notes, in whole or in part, and any such rejection shall not be
deemed a breach of such Agent's agreement contained herein. The Company may
accept or reject any proposed purchase of Notes, in whole or in part.
(c) SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL. In soliciting
purchases of Notes on behalf of the Company, each Agent shall act solely as
agent for the Company and not as principal. Each Agent shall make reasonable
efforts to assist the Company in obtaining performance by each purchaser
whose offer to purchase Notes has been solicited by such Agent and accepted
by the Company. Such Agent shall not have any liability to the Company in
the event that any such purchase is not consummated for any reason; provided,
however, that the foregoing shall not relieve any Agent for any liability
such Agent may have from a breach of its obligations hereunder. The Agents
shall not have any obligation to purchase Notes from the Company as
principal, but an Agent may agree from time to time to purchase Notes as
principal. Any such purchase of Notes by an Agent as principal shall be made
pursuant to a Terms Agreement in accordance with the provisions of Section
3(b) hereof.
(d) RELIANCE. The Company and the Agents agree that any Notes, the
placement of which an Agent arranges, shall be placed by such Agent, and any
Notes purchased by an Agent shall be purchased, in reliance upon the
representations, warranties, covenants and agreements of the Company
contained herein and on the terms and conditions and in the manner provided
herein.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to each Agent as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether through such Agent as agent or to such Agent as
principal), as of the date of each delivery of Notes (whether through such
Agent as agent or to such Agent as principal) (the date of each such delivery
to an Agent as principal being hereafter referred to as a "Settlement Date"),
and as of the times referred to in Section 7(b) hereof (each of the times
referenced above being referred to hereafter as a "Representation Date") as
follows:
3
<PAGE>
(i) The Registration Statement and the Prospectus, at the time the
Registration Statement became effective, complied and, as of the
applicable Representation Date, will comply in all material respects with
the requirements of the 1933 Act, the 1933 Act Regulations and the 1939
Act and the rules and regulations of the SEC promulgated thereunder. The
Registration Statement, at the time the Registration Statement became
effective, did not, and, at each time thereafter at which any amendment to
the Registration Statement becomes effective and any Annual Report on Form
10-K is filed by the Company with the SEC and as of each Representation
Date, will not, include 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 date
hereof, does not, and as of each Representation Date, 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 Agent expressly for use in the
Registration Statement or Prospectus or to that part of the Registration
Statement which constitutes the Statements of Eligibility under the 1939
Act on Form T-1 of each Trustee under the applicable Indenture.
(ii) The financial statements and the supporting schedules included
or incorporated by reference 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.
(iii) The documents incorporated by reference in the Prospectus, at
the time they were or hereafter are filed with the SEC, complied or when
so filed 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,
do 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.
(iv) 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,
(A) 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 (B) there have not been any
transactions entered into by the Company or its subsidiaries other than
(1) transactions in the ordinary course of business including borrowings
for the acquisition of receivables and other operations or
4
<PAGE>
(2) transactions which are not material in relation to the Company and its
subsidiaries considered as one enterprise.
(v) 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.
(vi) The execution and delivery of this Agreement and each
Indenture 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 or any of its subsidiaries, pursuant to any indenture, loan
agreement, contract or other agreement or instrument to which the Company
or any of its subsidiaries is a party or by which the Company or any such
subsidiary may be bound or to which any of the property or assets of the
Company or any such subsidiary is subject, nor will such action result in
any violation of the provisions of the charter or by-laws of the Company
or any of its subsidiaries or, to the best of its knowledge, any order,
rule or regulation applicable to the Company or any of its subsidiaries of
any court or of any federal, state or other regulatory authority or other
governmental body having jurisdiction over the Company or any such
subsidiary.
(vii) The Notes have been duly authorized for issuance and sale
pursuant to this Agreement and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and of the applicable
Indenture against payment of the consideration therefor in accordance with
this Agreement, the Notes 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 applicable
Indenture.
(viii) The statements in the Prospectus under the caption
"Description of Notes", "Special Provisions Relating to Foreign Currency
Notes" and "Description of Debt Securities", insofar as they purport to
summarize certain provisions of documents specifically referred to
therein, are accurate summaries of such provisions.
(ix) The accountants who certified the financial statements
included or incorporated by reference in the Registration Statement and
the Prospectus are independent public accountants within the meaning of
the 1933 Act and the 1933 Act Regulations.
(x) The Notes, when issued, authenticated and delivered pursuant
to the provisions of this Agreement and the applicable Indenture, will be
excluded or exempted from the provisions of the Commodity Exchange Act.
5
<PAGE>
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer
of the Company and delivered to the Agents or to counsel for the Agents in
connection with an offering of Notes or the sale of Notes to an Agent as
principal shall be deemed a representation and warranty by the Company to the
Agents as to the matters covered thereby on the date of such certificate and,
to the extent therein provided, at each Representation Date subsequent
thereto.
SECTION 3. SOLICITATIONS AS AGENT; PURCHASES AS PRINCIPAL.
(a) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein
set forth, each Agent agrees, as an agent of the Company, to use its
reasonable best efforts to solicit offers to purchase Notes upon the terms
and conditions set forth herein and in the Prospectus.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of Notes through the Agents, as agents, commencing
at any time for any period of time or permanently. Upon receipt of
instructions from the Company, the Agents will forthwith suspend solicitation
of purchases from the Company until such time as the Company has advised the
Agents that such solicitation may be resumed.
The Company agrees to pay each Agent a commission, in the form of a
discount or by such other means agreed to by the Company and such Agent,
equal to the applicable percentage of the price to the public of each Note
sold by the Company as a result of a solicitation made by such Agent as set
forth in Exhibit A hereto. Without the prior approval of the Company, the
Agents may not re-allow any portion of the commission payable pursuant hereto
to dealers or purchasers in connection with the offer and sale of any Notes
through any such Agent as agent.
The purchase price, interest rate or formula, maturity date and other
terms of the Notes shall be agreed upon by the Company and the applicable
Agent and set forth in a pricing supplement to the Prospectus to be prepared
following each acceptance by the Company of an offer for the purchase of
Notes. Except as may be otherwise provided in such supplement to the
Prospectus, the Notes will be issued in denominations of U.S. $1,000 or any
amount in excess thereof which is an integral multiple of U.S. $1,000. All
Notes sold through an Agent as agent will be sold at 100% of their principal
amount unless otherwise agreed to by the Company and such Agent.
(b) PURCHASES AS PRINCIPAL. Each sale of Notes to an Agent as
principal shall be made in accordance with the terms contained herein and
pursuant to a separate agreement which will provide for the sale of such
Notes to, and the purchase and reoffering thereof by, such Agent. Each such
separate agreement (which may be an oral agreement and confirmed in writing
as described below between the applicable Agent and the Company) is herein
referred to as a "Terms Agreement". Unless the context otherwise requires,
each reference contained herein to "this Agreement" shall be deemed to
include any applicable Terms Agreement between the Company and the applicable
Agent. Each such Terms Agreement, whether oral (and confirmed in writing,
which may be by facsimile transmission) or in writing, shall be with respect
to such information (as applicable) as is specified in Exhibit B hereto. An
Agent's commitment to purchase Notes as principal pursuant to any Terms
Agreement shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and
6
<PAGE>
shall be subject to the terms and conditions herein set forth. Each Terms
Agreement shall specify the principal amount of Notes to be purchased by the
applicable Agent pursuant thereto, the price to be paid to the Company for
such Notes, the time and place of delivery of and payment for such Notes and
such other provisions (including further terms of the Notes) as may be
mutually agreed upon. Such Terms Agreement shall also specify the
requirements for the officer's certificate, opinions of counsel, comfort
letter and stand-off agreement pursuant to Sections 7(b), 7(c), 7(d) and
4(j), respectively, hereof. In addition, the applicable Agent is authorized
to engage the services of any broker or dealer in connection with the offer
or sale of Notes which such Agent has purchased as principal. The applicable
Agent may sell such Notes to any broker or dealer at a price that includes
all or any portion of the discount to be received by such Agent from the
Company.
(c) ADMINISTRATIVE PROCEDURES. Administrative procedures with
respect to the sale of Notes shall be agreed upon from time to time by the
Agents and the Company (the "Procedures"). The Agents and the Company agree
to perform the respective duties and obligations specifically provided to be
performed by them in the Procedures.
SECTION 4. COVENANTS OF THE COMPANY.
The Company covenants with the Agents as follows:
(a) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents
immediately of (i) the effectiveness of any amendment to the Registration
Statement, (ii) the receipt of any comments from the SEC with respect to the
Registration Statement or the Prospectus, (iii) any request by the SEC for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) the issuance by the
SEC 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.
(b) NOTICE OF CERTAIN PROPOSED FILINGS. Except as otherwise provided
in this subsection or subsection (k) of this Section, the Company will (i)
give the Agents notice of its intention to file (a) any additional
registration statement with respect to the registration of additional Notes
to be distributed pursuant to this Agreement or (b) any amendment to the
Registration Statement or any amendment or supplement to the Prospectus,
whether by the filing of documents pursuant to the 1933 Act, the 1934 Act or
otherwise; (ii) furnish the Agents with copies of any document referred to in
clause (i) above proposed to be filed a reasonable time in advance of filing;
and (iii) make available to the Agents copies of documents so filed promptly
upon the filing thereof. Notwithstanding the foregoing, except as set forth
below, the Company shall not be required to give any Agent notice of its
intention to file, to furnish any Agent a copy of in advance of filing, or to
make available to any Agent, (i) Quarterly Reports on Form 10-Q, any Current
Report on Form 8-K that includes solely the financial and other information
referred to in subsection (e) or (f) of this Section (including a press
release containing such information) or any filings pursuant to Section 14 of
the 1934 Act, provided that the Company shall make available to each Agent
copies of such documents promptly after the filing thereof, and provided,
further, that if any such document is to be filed in order that the
Prospectus does not include an
7
<PAGE>
untrue statement of a material fact or omit to state a material fact
necessary in order to make the statements therein not misleading in light of
the circumstances then existing, then the Company shall give immediate notice
(prior to the filing of any such document) to each Agent to cease
solicitations of offers to purchase the Notes in its capacity as agent and to
cease sales of any Notes an Agent may then own as principal pursuant to a
Terms Agreement, (ii) any pricing supplement to the Prospectus in connection
with a sale of Notes (except that a pricing upplement shall be provided to
the Agent who solicits the Notes to which such pricing supplement relates),
(iii) any amendment or supplement to the Prospectus that relates exclusively
to an offering of debt securities other than Notes or (iv) any Current Report
on Form 8-K filed solely for the purpose of incorporating an exhibit by
reference into a registration statement except that the Company shall make
available to each Agent any such Current Report on Form 8-K promptly after
the filing thereof.
(c) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to each Agent one signed and as many 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 such
Agent may reasonably request. The Company will furnish to each Agent as many
copies of the Prospectus (as amended or supplemented) as such Agent shall
reasonably request so long as an Agent is required to deliver a Prospectus in
connection with sales or solicitations of offers to purchase the Notes.
(d) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. Except as otherwise
provided in subsection (k) of this Section, if at any time during the term of
this Agreement any event shall occur or condition exist as a result of which
it is necessary, in the opinion of the Company or in the reasonable opinion
of counsel for the Agents 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 in order to make the statements therein not misleading in the light
of the circumstances existing at the time the Prospectus is delivered to a
purchaser, or if it shall be necessary, in the opinion of the Company or in
the reasonable opinion of either such counsel, to amend or supplement the
Registration Statement or the Prospectus in order to comply with the
requirements of the 1933 Act or the 1933 Act Regulations, the Company shall
give immediate notice to each Agent to cease the solicitation of offers to
purchase the Notes in its capacity as agent and to cease sales of any Notes
it may then own as principal pursuant to a Terms Agreement, and the Company
will promptly prepare and file with the SEC such amendment or supplement,
whether by filing documents pursuant to the 1934 Act, the 1933 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.
(e) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. Except
as otherwise provided in subsection (k) of this Section, promptly after there
shall be released to the general public, interim financial statement
information related to the Company with respect to each of the first three
quarters of any fiscal year or preliminary financial statement information
with respect to any fiscal year, the Company shall cause the Registration
Statement and the Prospectus to be amended or supplemented to include or
incorporate by reference capsule financial information with respect thereto
and corresponding information for the comparable period of the preceding
fiscal year, as well as such other information and explanations as shall be
8
<PAGE>
necessary for an understanding thereof or as shall be required by the 1933
Act or the 1933 Act Regulations.
(f) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. Except as
otherwise provided in subsection (k) of this Section, promptly after there
shall be released to the general public, financial information included in or
derived from the audited financial statements of the Company for the
preceding fiscal year, the Company shall cause the Registration Statement and
the Prospectus to be amended, whether by the filing of documents pursuant to
the 1934 Act, the 1933 Act or otherwise, to include or incorporate by
reference such audited financial statements and the report or reports, and
consent or consents to such inclusion or incorporation by reference, of the
independent accountants with respect thereto, as well as such other
information and explanations as shall be necessary for an understanding of
such financial statements or as shall be required by the 1933 Act or the 1933
Act Regulations.
(g) EARNINGS STATEMENTS. 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 each
twelve 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 such Rule 158) of the Registration Statement with respect to each sale of
Notes.
(h) BLUE SKY QUALIFICATIONS. The Company will endeavor, in
cooperation with the Agents, to qualify the Notes for offering and sale under
the applicable securities laws of such states and other jurisdictions of the
United States as the Agents may designate, and will maintain such
qualifications in effect for as long as may be required for the distribution
of the Notes; provided, however, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation in any jurisdiction in which it is not so qualified. The Company
will file such statements and reports as may be required by the laws of each
jurisdiction in which the Notes have been qualified as above provided. The
Company will promptly advise the Agents of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Notes
for sale in any such state or jurisdiction or the initiating or threatening
of any proceeding for such purpose.
(i) 1934 ACT FILINGS. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act, will file promptly
all documents required to be filed with the SEC pursuant to Sections 13(a) or
14 of the 1934 Act.
(j) STAND-OFF AGREEMENT. If required pursuant to the terms of a
Terms Agreement, between the date of any Terms Agreement and the Settlement
Date with respect to such Terms Agreement, the Company will not, without the
applicable Agent's prior consent, offer or sell in the United States, or
enter into any agreement to so sell, any debt securities of the Company
(other than the Notes that are to be sold pursuant to such Terms Agreement
and debt securities with maturities of less than nine months in the ordinary
course of business).
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (b), (d), (e) or (f) of
this Section during any period from the time (i) the Agents shall have
suspended solicitation of purchases of the Notes in its capacity as
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agent pursuant to a request from the Company and (ii) neither Agent shall
hold any Notes as principal purchased pursuant to a Terms Agreement, to the
time the Company shall determine that solicitation of purchases of the Notes
should be resumed or shall subsequently enter into a new Terms Agreement with
an Agent.
SECTION 5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents as agents of the Company to solicit offers
to purchase the Notes, the obligations of any purchasers of the Notes sold
through an Agent as agent, and any obligation of an Agent as principal to
purchase Notes pursuant to a Terms Agreement will be subject to the accuracy of
the representations and warranties on the part of the Company herein and to the
accuracy of the statements of the Company's officers made in any certificate
furnished pursuant to the provisions hereof, to the performance and observance
by the Company of all its covenants and agreements herein contained and to the
following additional conditions precedent:
(a) LEGAL OPINIONS. On the date hereof, the Agents shall have received
the following legal opinions, dated as of the date hereof and in form and
substance satisfactory to the Agents:
(1) OPINION OF COMPANY COUNSEL. The opinion of Shearman &
Sterling, counsel to the Company, 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 has been duly authorized, executed and
delivered by the Company.
(iii) Each Indenture has been duly authorized, executed and
delivered by the Company and, assuming due authorization, execution
and delivery by the applicable Trustee, constitutes a valid and
binding obligation of the Company, enforceable in accordance with
its terms, except as enforcement thereof may be limited by
bankruptcy, insolvency (including, without limitation, all laws
relating to fraudulent transfers), 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 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 Notes have been duly authorized by the Company and,
when duly executed by the Company and completed and authenticated by
the applicable Trustee in accordance with the applicable Indenture
and delivered against payment pursuant to this Agreement, the Notes,
in the forms certified by an authorized officer of the Company, will
be valid and binding obligations of the Company entitled to the
benefits of such Indenture and enforceable in accordance with their
terms, except as enforcement thereof may be limited by bankruptcy,
insolvency (including, without limitation, all laws relating to
fraudulent transfers), reorganization or other similar laws
affecting enforcement of creditors' rights
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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 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 statements in the Prospectus under the captions
"Description of Notes", "Description of Debt Securities" and
"Special Provisions Relating to Foreign Currency Notes", insofar as
they purport to summarize certain provisions of documents
specifically referred to therein, are accurate summaries of such
provisions.
(vi) Each Indenture has been duly qualified under the 1939
Act.
(vii) 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 1933 Act or proceedings therefor initiated or
threatened by the SEC.
(viii) The Registration Statement and the Prospectus (except
for the financial statements and other financial data included
therein or omitted therefrom and the Statements of Eligibility of
the respective Trustees 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 1933 Act Regulations.
(ix) Each document 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 date it was filed with the SEC,
appears on its face to have been appropriately responsive in all
material respects to the requirements of the 1934 Act and the rules
and regulations of the SEC thereunder.
(x) 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.
(xi) The information contained in the Prospectus under the
caption "United States Taxation", to the extent that it constitutes
matters of law or legal conclusions, has been reviewed by such
counsel and is correct.
(2) OPINION OF GENERAL COUNSEL TO THE COMPANY. The opinion of
Frank S. Cottrell (or his successor), General Counsel of the Company, or
Michael A. Harring, Assistant 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 of Illinois and Iowa, (ii) the execution
and delivery of this Agreement and each Indenture, the fulfillment of the
terms herein and therein set forth and the consummation of the
transactions herein and
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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 any of them is bound,
or any law, administrative regulation or administrative or court order
known to him applicable to the Company or any of its subsidiaries.
(3) OPINION OF COUNSEL TO THE AGENTS. The opinion of Brown & Wood
LLP, counsel to the Agents, covering the matters referred to in subsection
(a)(1) of this Section under the subheadings (i) to (viii), inclusive.
(4) DISCLOSURE OPINION. In giving their opinions required by
subsections (a)(1) and (a)(3) of this Section, Shearman & Sterling and
Brown & Wood LLP shall each additionally 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 Section 5(a)(1)(v) and Section 5(a)(1)(xi) (in the case of Shearman &
Sterling only). Such counsel has, however, generally reviewed and
discussed such statements with certain officers and employees of the
Company and with its auditors. In the course of such review and
discussion, no facts have come to the attention of such counsel to lead
them to believe that (A) the Registration Statement (except for the
financial statements and other financial data included therein or omitted
therefrom and the Statements of Eligibility of the respective Trustees on
Form T-1, as to which such counsel has not been requested to 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 by the Company
(whichever is later), or at the date of any 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 (B) the Prospectus (except for the financial statements
and other financial data included therein or omitted therefrom, as to
which such counsel has not been requested to comment), at the time the
Prospectus was issued, at the time any amendment or supplement to the
Prospectus was issued or at the date hereof, 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.
(b) OFFICER'S CERTIFICATE. At the date hereof and at each Settlement
Date with respect to any Terms Agreement, there shall not have been, since the
respective dates as of which information is given in the Prospectus or since the
date of such Terms Agreement, 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, not reflected in or contemplated by
the Prospectus, whether or not arising in the ordinary course of business; and
on the date hereof, the Agents shall have received a certificate of the
President, any Executive Vice President, any Senior Vice President or any Vice
President and the principal financial or principal accounting officer of the
Company to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties of the Company contained in Section 2
hereof are true and correct with the same force and effect as though expressly
made at and as of the date of such certificate, (iii) the Company has performed
or complied with all agreements and satisfied all conditions on
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its part to be performed or satisfied at or prior to the date of such
certificate, and (iv) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that purpose
have been initiated or threatened by the SEC. For purposes of this Section
5(b) only, the term "Prospectus" shall mean the Prospectus in the form first
provided by the Company to the Agents for delivery with confirmations of
sales of Notes to or through such Agents.
(c) COMFORT LETTER. On the date hereof, the Agents shall have
received a letter from Deloitte & Touche LLP, dated as of the date hereof and
in form and substance satisfactory to the Agents, to the effect that:
(i) they are independent public accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and the
1933 Act Regulations;
(ii) in their opinion, the consolidated financial statements and
supporting schedule(s) of the Company and its subsidiaries examined by
them and included or incorporated by reference in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the 1933 Act and the 1933 Act Regulations with
respect to registration statements on Form S-3 and the 1934 Act and the
1934 Act Regulations;
(iii) they have performed specified procedures, not constituting an
audit, including a reading of the latest available interim financial
statements of the Company and its indicated subsidiaries, a reading of the
minute books of the Company and such subsidiaries since the end of the
most recent fiscal year with respect to which an audit report has been
issued, inquiries of and discussions with certain officials of the Company
and such subsidiaries responsible for financial and accounting matters
with respect to the unaudited consolidated financial statements included
in the Registration Statement and Prospectus and the latest available
interim unaudited financial statements of the Company and its
subsidiaries, and such other inquiries and procedures as may be specified
in such letter, and on the basis of such inquiries and procedures nothing
came to their attention that caused them to believe that: (A) the
unaudited consolidated financial statements of the Company and its
subsidiaries included in the Registration Statement and Prospectus do not
comply as to form in all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations or were not
fairly presented in conformity with generally accepted accounting
principles in the United States applied on a basis substantially
consistent with that of the audited financial statements included therein,
or (B) at a specified date not more than five days prior to the date of
such letter, there was any change in the consolidated capital stock or any
increase in consolidated long-term debt of the Company and its
subsidiaries or any decrease in the consolidated net assets of the Company
and its subsidiaries, in each case as compared with the amounts shown on
the most recent consolidated balance sheet of the Company and its
subsidiaries included in the Registration Statement and Prospectus or,
during the period from the date of such balance sheet to a specified date
not more than five days prior to the date of such letter, there were any
dereases, as compared with the corresponding period in the preceding year,
in consolidated revenues or net income of the Company and its
subsidiaries, except in each such case as set forth in or contemplated by
the Registration
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Statement and Prospectus or except for such exceptions enumerated in such
letter as shall have been agreed to by the Agents and the Company; and
(iv) in addition to the examination referred to in their report
included or incorporated by reference in the Registration Statement and
the Prospectus, and the limited procedures referred to in clause (iii)
above, they have carried out certain other specified procedures, not
constituting an audit, with respect to certain amounts, percentages and
financial information which are included or incorporated by reference in
the Registration Statement and Prospectus and which are specified by the
Agents, and have found such amounts, percentages and financial information
to be in agreement with the relevant accounting, financial and other
records of the Company and its subsidiaries identified in such letter.
(d) OTHER DOCUMENTS. On the date hereof and on each Settlement Date
with respect to any applicable Terms Agreement, counsel to the Agents shall have
been furnished with such documents and opinions as such counsel may reasonably
require for the purpose of enabling such counsel to pass upon the issuance and
sale of Notes 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
Notes as herein contemplated shall be satisfactory in form and substance to the
Agents and to counsel to the Agents.
If any condition specified in this Section 5 shall not have been fulfilled
when and as required to be fulfilled, this Agreement (or, at the option of the
applicable Agent, any applicable Terms Agreement) may be terminated by any Agent
as to itself, and any Terms Agreement may be terminated by the Agent party
thereto, by notice to the Company at any time and any such termination shall be
without liability of any party to any other party, except that the covenant
regarding provision of an earnings statement set forth in Section 4(g) hereof,
the provisions concerning payment of expenses under Section 10 hereof, the
indemnity and contribution agreement set forth in Sections 8 and 9 hereof, the
provisions concerning the representations, warranties and agreements to survive
delivery of Section 11 hereof and the provisions set forth under "Parties" of
Section 15 hereof shall remain in effect.
SECTION 6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH THE AGENTS.
Delivery of Notes sold through an Agent as agent shall be made by the
Company to such Agent for the account of any purchaser only against payment
therefor in immediately available funds. In the event that a purchaser shall
fail either to accept delivery of or to make payment for a Note on the date
fixed for settlement, the applicable Agent shall promptly notify the Company and
deliver the Note to the Company, and, if such Agent has theretofore paid the
Company for such Note, the Company will promptly return such funds to such
Agent. If such failure occurred for any reason other than default by the
applicable Agent in the performance of its obligations hereunder, the Company
will reimburse such Agent on an equitable basis for its loss of the use of the
funds for the period such funds were credited to the Company's account.
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SECTION 7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
it of an offer for the purchase of Notes, and each delivery of Notes to an Agent
pursuant to a Terms Agreement, shall be deemed to be an affirmation that the
representations and warranties of the Company contained in this Agreement and,
to the extent therein provided, in any certificate theretofore delivered to the
Agents pursuant hereto are true and correct at the time of such acceptance or
sale, as the case may be, and an undertaking that such representations and
warranties will be true and correct at the time of delivery to the purchaser or
his agent, or to the Agents, of the Note or Notes relating to such acceptance or
sale, as the case may be, as though made at and as of each such time (and it is
understood that such representations and warranties shall relate to the
Registration Statement and Prospectus as amended and supplemented to each such
time).
(b) SUBSEQUENT DELIVERY OF CERTIFICATES. Each time that (1) the
Registration Statement or the Prospectus shall be amended or supplemented or
there is filed with the SEC any document incorporated by reference into the
Prospectus (other than (i) any amendment, supplement or document that is not
required to be made available by the Company to any Agent pursuant to Section
4(b), (ii) any Current Report on Form 8-K filed solely for the purpose of
incorporating an exhibit by reference into another document, and (iii) any
Quarterly Report on Form 10-Q relating exclusively to a presentation of
periodic financial information (including management's discussion and
analysis), a true and accurate summary of which has been previously filed in
a Current Report on Form 8-K, if a certificate described below was delivered
in connection with the filing on such Form 8-K) or (2) (if required pursuant
to the terms of a Terms Agreement) the Company sells Notes to an Agent
pursuant to a Terms Agreement then the Company shall furnish or cause to be
furnished to the Agents forthwith a certificate dated the date of
effectiveness of such amendment, the date of filing with the SEC of such
supplement or document, or the date of such sale, as the case may be, in form
and substance satisfactory to the Agents to the effect that the statements
contained in the certificate referred to in Section 5(b) hereof which were
last furnished to the Agents are true and correct at the time of such
amendment, supplement, filing or sale, as the case may be, as though made at
and as of such time (except that such statements shall be deemed to relate to
the Registration Statement and the Prospectus as amended and supplemented to
such time) or, in lieu of such certificate, a certificate of the same tenor
as the certificate referred to in said Section 5(b), modified as necessary to
relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such certificate; provided, however,
that in the event that the sale of Notes whose principal, premium, if any,
and/or interest payments are determined by reference to any index, formula or
other method ("Indexed Notes") shall be authorized by the Company, such
certificate shall also include as an exhibit thereto a true and correct
specimen of the form of Indexed Notes being issued and shall cover such other
matters as the Agents may reasonably request.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that (1) the
Registration Statement or the Prospectus shall be amended or supplemented (other
than (i) by an amendment or supplement relating solely to the interest rates,
interest payment dates or maturity dates of the Notes or similar information,
(ii) solely for the inclusion of additional financial information
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(including any management's discussion and analysis), (iii) by an amendment
made by the filing of a Quarterly Report on Form 10-Q and any Current Report
on Form 8-K (except in the circumstances hereinafter described) and (iv) by
an amendment or supplement which is not required to be made available by the
Company to any Agent pursuant to Section 4(b)) or (2) there is filed with the
SEC the Company's Annual Report on Form 10-K and such Annual Report is
incorporated by reference into the Prospectus or (3) (if required pursuant to
the terms of a Terms Agreement) the Company sells Notes to an Agent pursuant
to a Terms Agreement, the Company shall furnish or cause to be furnished
forthwith to the Agents and to counsel to the Agents the written opinions of
Shearman & Sterling, counsel to the Company, and the General Counsel for the
Company, or other counsel satisfactory to the Agents, dated the date of
effectiveness of such amendment, the date of filing with the SEC of such
supplement or document, or the date of such sale, as the case may be, in form
and substance satisfactory to the Agents, of the same tenor as the opinions
referred to in Section 5(a)(1) and Section 5(a)(2), respectively, hereof, but
modified, as necessary, to relate to the Registration Statement and the
Prospectus as amended and supplemented to the time of delivery of such
opinions or, in lieu of such opinions, counsel last furnishing such opinions
to the Agents shall each furnish the Agents with a letter to the effect that
the Agents may rely on such last opinion to the same extent as though it was
dated the date of such letter authorizing reliance (except that statements in
such last opinion shall be deemed to relate to the Reistration Statement and
the Prospectus as amended and supplemented to the time of delivery of such
letter authorizing reliance); provided, however, that in the event that the
sale of Indexed Notes shall be authorized by the Company, Shearman &
Sterling, counsel for the Company, and Brown & Wood LLP, counsel for the
Agents, or other counsel satisfactory to the Company and the Agents, shall
deliver their written opinions, dated the date of such sale, confirming the
exclusion or exemption of such Indexed Notes from the Commodity Exchange Act
and covering such other matters as the Company and/or the Agents may
reasonably request. If one or more of the Agents reasonably determine that
the information included in a filing by the Company in a Quarterly Report
filed on Form 10-Q or a Current Report filed on Form 8-K is of such
importance that a legal opinion should be delivered to the Agents in
conjunction therewith, such Agent or Agents shall notify the Company promptly
upon such determination. The Company will thereupon deliver to the Agents an
opinion of the General Counsel for the Company as to matters set forth in
Section 5(a)(2) and such portions of Section 5(a)(1) as the Agents may
reasonably designate and to the further effect of the opinions delivered
pursuant to Section 5(a)(4), modified, as necessary, to relate to the
Registration Statement and Prospectus as amended or supplemented to the time
of delivery of such opinion.
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that (1) the
Registration Statement or the Prospectus shall be amended or supplemented to
include additional financial information or (2) there is filed with the SEC any
document incorporated by reference into the Prospectus which contains additional
financial information or (3) (if required pursuant to the terms of a Terms
Agreement) the Company sells Notes to an Agent pursuant to a Terms Agreement,
the Company shall cause Deloitte & Touche LLP, or their successors, forthwith to
furnish the Agents a letter, dated the date of effectiveness of such amendment,
supplement or document with the SEC , or the date of such sale, as the case may
be, in form satisfactory to the Agents, of the same tenor as the portions of the
letter referred to in clauses (i) and (ii) of Section 5(c) hereof but modified
to relate to the Registration Statement and Prospectus, as amended and
supplemented to the date of such letter, and of the same general tenor as the
portions of the letter
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referred to in clauses (iii) and (iv) of said Section 5(c) with such changes
as may be necessary to reflect changes in the financial statements and other
information derived from the accounting records of the Company; provided,
however, that if the Registration Statement or the Prospectus is amended or
supplemented solely to include financial information as of and for a fiscal
quarter, Deloitte & Touche LLP, or their successors, may limit the scope of
such letter to the unaudited financial statements included in such amendment
or supplement unless any other information included therein of an accounting,
financial or statistical nature is of such a nature that, in the reasonable
judgment of the Agents, such letter should cover such other information. For
purposes of this Section 7(d), the filing of a Current Report on Form 8-K for
the exclusive purpose of presenting interim periodic financial information
pursuant to Section 4(e) will not, in and of itself, give rise to an
obligation to deliver a letter from Deloitte & Touche LLP or their successors
pursuant to this Section 7(d).
SECTION 8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENTS. The Company agrees to indemnify and
hold harmless the Agents and each person, if any, who controls an Agent 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
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 a preliminary prospectus or the Prospectus 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 Agent expressly for use in the Registration
Statement or any such preliminary prospectus or the Prospectus, or was
made in reliance upon the Statements of Eligibility under the 1939 Act on
Form T-1 of each Trustee under the applicable 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.
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This indemnity agreement is subject to the condition that, insofar as
it relates to any preliminary prospectus, it shall not inure to the benefit
of any Agent from whom the person asserting any loss, liability, claim or
damage purchased the Notes which are the subject thereof (or to the benefit
of any person who controls such Agent) if such Agent failed to send or give a
copy of the Prospectus (excluding documents incorporated by reference) to
such person prior to or together with the written confirmation of the sale of
such Notes to such person. In no case shall the Company be liable under this
indemnity agreement with respect to any claim made against any Agent 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 Agent or Agents 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 Agent or Agents 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 of any such action (including impleaded parties) include both the
Company and one or more Agents and any such Agent 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
tose available to the Company, the Company shall not have the right to assume
the defense of such action on behalf of such Agent and will reimburse such
Agent and any person controlling such Agent 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 Agents and
controlling persons, which firm shall be designated in writing by the Agents.
The Company agrees to notify the Agents 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 Notes.
(b) Each Agent 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 free of the condition set
forth in the first sentence of the second paragraph of Section 8(a) and only
with respect to statements or omissions made in a preliminary prospectus, the
Prospectus or the Registration Statement in reliance upon and in conformity
with written information furnished to the Company by or on behalf of such
Agent expressly for use in the Registration Statement or in any such
preliminary prospectus or the Prospectus. In case any action shall be
brought against the Company or any person so indemnified based on the
Registration Statement or such preliminary prospectus or the Prospectus and
in respect of which indemnity may be sought against any Agent, such Agent
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
Agents, by the provisions of subsection (a) of this Section.
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SECTION 9. CONTRIBUTION.
If the indemnification provisions provided in Section 8 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 each of the Agents from the offering of the Notes which are the
subject of the action and also the relative fault of the Company and each of
such Agents 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 each of the applicable Agents
shall be deemed to be in the same proportion as (A) in the case of Notes to
be resold on a fixed public offering price basis, the total net proceeds from
the offering (before deducting expenses) received by the Company and the
total underwriting discounts and commissions received by each of such Agents,
in each case as set forth in the Prospectus, bear to the aggregate public
offering price of the Notes which are the subject of the action or (B) in the
case of Notes to be resold on a varying price basis, the total net proceeds
from the offering (before deducting expenses) received by the Company and the
total net proceeds received by each of such Agents from the distribution of
such Notes in excess of the purchase price paid by such Agents to the Company
bear to the public offering price paid to such Agents for such Notes. The
relative fault shall be determined by reference to, among other things,
whether the indemnified party failed to give the notice required under
Section 8 above including the consequences of such failure, and whether the
untrue or alleged utrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
the Company or an Agent and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
omission of the Company and such Agents. With respect to any Agent, such
relative fault shall also be determined by reference to the extent (if any)
to which such losses, liabilities, claims, damages or expenses (or actions in
respect thereof) with respect to any preliminary prospectus supplement result
from the fact that such Agent sold Notes to a person to whom there was not
sent or given, at or prior to the written confirmation of such sale, a copy
of the Prospectus (excluding documents incorporated by reference) if the
Company has previously furnished copies thereof to such Agent. The Company
and the Agents agree that it would not be just and equitable if contribution
pursuant to this Section 9 were determined by per capita allocation (even if
the Agents 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 9. 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 9 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 9, no Agent shall be required to contribute any
amount in excess of the amount by which the total price at which the Notes
sold by the Company as a result of a solicitation made by such Agent or
purchased by such Agent pursuant to a Terms Agreement and distributed to the
public were offered to the public exceeds the amount of any damages which
such Agent has otherwise been required to pay by reason of such unrue or
alleged untrue statement or omission or alleged omission. No person guilty
of fraudulent misrepresentation (within the meaning of Section 11 of
19
<PAGE>
the 1933 Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Each Agent's obligation in this
Section 9 to contribute is several in proportion to the amount of gross
proceeds received by the Company from the sale of the Notes which are the
subject of the action as a result of a solicitation made by such Agent or
purchased by such Agent pursuant to a Terms Agreement and not joint.
The obligations of the Company under this Section 9 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 Agent within the meaning of the 1933 Act; and the obligations of
the Agents under this Section 9 shall be in addition to any liability which
the respective Agents may otherwise have and shall extend, upon the same
terms and conditions, to each officer who signs the Registration Statement,
to each director of the Company and to each person, if any, who controls the
Company within the meaning of the 1933 Act.
SECTION 10. PAYMENT OF EXPENSES.
The Company will pay all expenses incident to the performance of its
obligations under this Agreement, including:
(i) The preparation and filing of the Registration Statement and
all amendments thereto and the Prospectus and any amendments or
supplements thereto;
(ii) The preparation, filing and reproduction of this Agreement;
(iii) The preparation, printing, issuance and delivery of the Notes,
including any fees and expenses relating to the use of Notes issued in
book-entry form;
(iv) The fees and disbursements of the Company's accountants and
counsel, of the Trustees and their respective counsel, and of any
calculation agent or exchange rate agent;
(v) The reasonable fees and disbursements of counsel to the Agents
incurred from time to time in connection with the transactions
contemplated hereby;
(vi) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(h) hereof, including filing
fees and the reasonable fees and disbursements of counsel for the Agents
in connection therewith and in connection with the preparation of any Blue
Sky Survey and any Legal Investment Survey;
(vii) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and any
amendments thereto, and of the Prospectus and any amendments or
supplements thereto, and the delivery by the Agents of the Prospectus and
any amendments or supplements thereto in connection with solicitations or
confirmations of sales of the Notes;
(viii) The preparation, printing and delivery to the Agents of copies
of each Indenture and all supplements and amendments thereto;
20
<PAGE>
(ix) Any fees charged by rating agencies for the rating of the
Notes;
(x) The fees and expenses, if any, incurred with respect to any
filing with the National Association of Securities Dealers, Inc.; and
(xi) Any advertising and other out-of-pocket expenses of the Agents
incurred with the express consent of the Company.
SECTION 11. REPRESENTATIONS, WARRANTIES AND AGREEMENTS TO SURVIVE
DELIVERY.
All representations, warranties and agreements contained in this Agreement
or in certificates of officers of the Company submitted pursuant hereto or
thereto, shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of an Agent or any controlling person of an
Agent, or by or on behalf of the Company, and shall survive each delivery of and
payment for any of the Notes.
SECTION 12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any Terms
Agreement) may be terminated for any reason at any time by either the Company,
as to any Agent, or by an Agent, as to itself, upon the giving of 30 days'
written notice of such termination to the other parties hereto.
(b) TERMINATION OF A TERMS AGREEMENT. The Agent party to a Terms
Agreement may terminate such Terms Agreement, immediately upon notice to the
Company, at any time prior to the Settlement Date relating thereto (i) if there
has been, since the date of such 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 shall have
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 in the
country or countries of origin of any foreign currency or currencies in which
the Notes are denominated, indexed or payable is such as to make it, in the
judgment of such Agent, impracticable to market the Notes or enforce contracts
for the sale of the Notes, or (iii) if trading in any securities of the Company
has been suspended by the SEC or a national securities exchange, or if trading
generally on either the American Stock Exchange or the New York Stock Exchange
shall have 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 SEC or any other governmental authority, or
if a banking moratorium shall have been declared by either Federal or New York
authorities or if a banking moratorium shall have been declared by the relevant
authorities in the country or countries of origin of any foreign currency or
currencies in which the Notes are denominated, indexed or payable, or (iv) if
the rating assigned by any nationally recognized securities rating agency to any
debt securities of the Company as of the date of any applicable Terms Agreement
shall have been lowered since that date or if any such ating agency shall have
publicly announced that it has placed any debt securities of the Company on what
is commonly termed a "watch list" for
21
<PAGE>
possible downgrading, or (v) if there shall have come to such Agent's
attention any facts that would cause it to believe that the Prospectus, at
the time it was required to be delivered to a purchaser of Notes, included an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at the time of such delivery, not misleading. For the
purposes of this Section 12(b) only, the term "Prospectus" shall mean the
Prospectus in the form first provided by the Company to such Agent for
delivery with confirmations of sales of Notes purchased by such Agent as
principal.
(c) GENERAL. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) each Agent
shall be entitled to any commission with respect to Notes sold by the Company
as a result of a solicitation made by such Agent and earned in accordance
with the third paragraph of Section 3(a) hereof, (ii) if at the time of
termination (a) an Agent shall own any Notes purchased pursuant to a Terms
Agreement with the intention of reselling them or (b) an offer to purchase
any of the Notes has been accepted by the Company but the time of delivery to
the purchaser or his agent of the Note or Notes relating thereto has not
occurred, the covenants set forth in Sections 4 and 7 hereof shall remain in
effect until such Notes are so resold or delivered, as the case may be, and
(iii) the covenant set forth in Section 4(g) hereof, the provisions of
Section 5 hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, and the provisions of Sections 11 and 15 hereof
shall remain in effect.
SECTION 13. NOTICES.
Unless otherwise provided herein, all notices required under the terms and
provisions hereof shall be in writing, either delivered by hand, by registered
mail or by telex, telecopier or telegram, and any such notice shall be effective
when received at the address specified below.
If to the Company:
Deere & Company
One John Deere Place
Moline, Illinois 61265
Attention: Treasurer
Telecopier: (309) 765-5021
22
<PAGE>
If to Merrill Lynch, Pierce, Fenner & Smith
Incorporated:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
World Financial Center
North Tower - 10th Floor
New York, New York 10281-1310
Attention: MTN Product Management
Telecopier: (212) 449-2234
If to Goldman, Sachs & Co.:
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Attention: Credit Department
Telecopier: (212) 358-8680
or at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 13.
SECTION 14. GOVERNING LAW.
THIS AGREEMENT AND ALL THE RIGHTS AND OBLIGATIONS OF THE PARTIES 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 SUCH STATE. ANY SUIT,
ACTION OR PROCEEDING BROUGHT BY THE COMPANY AGAINST AN AGENT IN CONNECTION WITH
OR ARISING UNDER THIS AGREEMENT SHALL BE BROUGHT SOLELY IN THE STATE OR FEDERAL
COURT OF APPROPRIATE JURISDICTION LOCATED IN THE BOROUGH OF MANHATTAN, THE CITY
OF NEW YORK.
SECTION 15. PARTIES.
This Agreement shall inure to the benefit of and be binding upon the
Agents and the Company 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 and their respective
successors and the controlling persons and officers and directors referred to in
Sections 8 and 9 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
hereto and 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 Notes shall be deemed to be
a successor by reason merely of such purchase.
23
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument along with all counterparts will become a binding
agreement between the Agents and the Company in accordance with its terms.
Very truly yours,
DEERE & COMPANY
By:______________________________________
Name:
Title:
CONFIRMED AND ACCEPTED, as of the
date first above written:
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
By: _________________________________
_______________________________________
(Goldman, Sachs & Co.)
24
<PAGE>
EXHIBIT A
As compensation for the services of an Agent hereunder, the Company shall
pay such Agent (on a discount basis or by other means agreed to by the Company
and such Agent) a commission for the sale by such Agent as agent of a Senior
Note equal to the price to the public of such Note multiplied by the appropriate
percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
<S> <C>
From 9 months but less than 1 year....................... .125%
From 1 year but less than 18 months...................... .150%
From 18 months but less than 2 years..................... .200%
From 2 years but less than 3 years....................... .250%
From 3 years but less than 4 years....................... .350%
From 4 years but less than 5 years....................... .450%
From 5 years but less than 6 years....................... .500%
From 6 years but less than 7 years....................... .550%
From 7 years but less than 10 years...................... .600%
From 10 years to less than 15 years...................... .625%
From 15 years to less than 20 years.................... .650%
From 20 years to 30 years.............................. .675%
</TABLE>
The above Schedule shall also apply to commissions paid in connection with
sales of Subordinated Notes unless otherwise agreed to by the Company and all of
the Agents.
Unless otherwise specified in the applicable Terms Agreement, the discount
payable to an Agent shall be determined on the basis of the commission schedule
set forth above.
A-1
<PAGE>
EXHIBIT B
The following terms, if applicable, shall be agreed to by an Agent and the
Company pursuant to each Terms Agreement:
Principal Amount: $_______ (or principal amount of foreign currency)
Interest Rate:
If Fixed Rate Note, Interest Rate:
If Floating Rate Note:
Interest Rate Basis:
Initial Interest Rate:
Initial Interest Reset Date:
Spread, Spread Multiplier or Other Formula, if any:
Index Maturity:
Interest Reset Date(s):
Interest Payment Date(s):
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Interest Reset Period:
Interest Payment Period:
Calculation Agent:
Redemption provisions, if any:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction:
Repayment provisions if any:
Optional Repayment Date(s):
Date of Maturity:
Purchase Price: ___%
Settlement Date and Time:
Currency of Denomination:
Denominations (if currency is other than U.S. dollars):
Currency of Payment:
Additional Terms:
Also, agreement as to whether the following will be required:
Officer's Certificate pursuant to Section 7(b) of the Distribution
Agreement.
Legal Opinion pursuant to Section 7(c) of the Distribution Agreement.
Comfort Letter pursuant to Section 7(d) of the Distribution Agreement.
Stand-off Agreement pursuant to Section 4(j) of the Distribution
Agreement.
B-1
<PAGE>
EXHIBIT 4.1
- -------------------------------------------------------------------------------
DEERE & COMPANY
TO
THE CHASE MANHATTAN BANK
(National Association),
Trustee
------------------------
Indenture
Dated as of July 1, 1994
------------------------
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 July 1, 1994
<TABLE>
<CAPTION>
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
<S> <C>
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
</TABLE>
___________________
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
<TABLE>
<CAPTION>
<S> <C>
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
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
SECTION 605. Money Held in Trust.. . . . . . . . . . . . . . . . . . . . . 52
<PAGE>
iii
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. . . . . 59
SECTION 802. Successor Person Substituted. . . . . . . . . . . . . . . . . 60
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders. . . . . . 60
SECTION 902. Supplemental Indentures with Consent of Holders.. . . . . . . 62
SECTION 903. Execution of Supplemental Indentures. . . . . . . . . . . . . 63
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
SECTION 1004. Additional Amounts.. . . . . . . . . . . . . . . . . . . . . 67
<PAGE>
iv
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. . . . . . . . . . . . . . . . . 78
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
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
<PAGE>
v
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
EXHIBIT A
EXHIBIT A-1
EXHIBIT A-2
</TABLE>
<PAGE>
INDENTURE, dated as of July 1, 1994, between DEERE & COMPANY, a
Delaware corporation (hereinafter called the "Company"), having its principal
office at John Deere Road, Moline, Illinois 61265 and THE CHASE MANHATTAN
BANK (National Association), a national banking association organized and
existing under the laws of the United States of America, as Trustee
(hereinafter called the "Trustee"), having its Corporate Trust Office at 4
Chase MetroTech Center, Brooklyn, New York 11245.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its unsecured and unsubordinated indebtedness, which may or may
not be convertible into or exchangeable for any securities of any Person
(including the Company), and has duly authorized the execution and delivery
of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear such rates of interest,
to mature at such times and to have such other provisions as shall be fixed
as hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of
the Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities and
coupons, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. DEFINITIONS. For all purposes of this Indenture,
except as otherwise expressly provided or unless the context otherwise
requires:
(1) the terms defined in this Article have the meanings assigned
to them in this Article, and include the plural as well as the singular;
(2) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA
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Section 311, shall have the meanings assigned to them in the rules of the
Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five,
Article Six and Article Ten, are defined in those Articles.
"ACT", when used with respect to any Holder, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of
certain taxes imposed on certain Holders and which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"AUTHENTICATING AGENT" means any authenticating agent appointed
by the Trustee pursuant to Section 611.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English language
or in an official language of the country of publication, customarily
published on each Business Day, whether or not published on Saturdays,
Sundays or holidays, and of general circulation in each place in connection
with which the term is used or in the financial community of each such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in
different newspapers in the same city meeting the foregoing requirements and
in each case on any Business Day.
"BEARER SECURITY" means any Security established pursuant to
Section 201 which is payable to bearer.
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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 Mobilires, S.A.,
or its successor.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a
written request or order signed in the name of the Company by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Comptroller or an Assistant Comptroller, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"CONVERSION DATE" has the meaning specified in Section 312(d).
"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community, (ii) the ECU
both within the European Monetary System and for the settlement of
transactions by public institutions of or within the European Communities or
(iii) any currency unit (or composite currency) other than the ECU for the
purposes for which it was established.
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"CORPORATE TRUST OFFICE" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be
principally administered, which office at the date hereof is located at 4
Chase MetroTech Center, Brooklyn, New York 11245.
"CORPORATION" includes corporations, associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer
Security.
"CURRENCY" means any currency or currencies, composite currency
or currency unit or currency units, including, without limitation, the ECU,
issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"DEFAULT" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ECU" means the European Currency Unit as defined and revised
from time to time by the Council of the European Communities.
"ELECTION DATE" has the meaning specified in Section 312(h).
"EUROCLEAR" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"EUROPEAN COMMUNITIES" means the European Union, the European
Coal and Steel Community and the European Atomic Energy Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the
European Communities.
"EVENT OF DEFAULT" has the meaning specified in Article Five.
"EXCHANGE RATE AGENT", with respect to Securities of or within
any series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant
to Section 301 or Section 313.
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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
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6
which such Person is Trustee established as contemplated by Section 301,
exclusive, however, of any provisions or terms which relate solely to other
series of Securities for which such Person is not Trustee, regardless of when
such terms or provisions were adopted, and exclusive of any provisions or
terms adopted by means of one or more indentures supplemental hereto
executed and delivered after such Person had become such Trustee but to which
such Person, as such Trustee, was not a party.
"INDEXED SECURITY" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are
determined by reference to prices, changes in prices, or differences between
prices, of securities, Currencies, intangibles, goods, articles or
commodities or by such other objective price, economic or other measures as
are specified in Section 301 hereof.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security
which provides for the payment of Additional Amounts pursuant to Section
1004, includes such Additional Amounts.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MARKET EXCHANGE RATE" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency
on the other, the exchange rate between the relevant currency unit and
Dollars or such Foreign Currency calculated by the method specified pursuant
to Section 301 for the Securities of the relevant series, (ii) for any
conversion of Dollars into any Foreign Currency, the noon buying rate for
such Foreign Currency for cable transfers quoted in New York City as
certified for customs purposes by the Federal Reserve Bank of New York and
(iii) for any conversion of one Foreign Currency into Dollars or another
Foreign Currency, the spot rate at noon local time in the relevant market at
which, in accordance with normal banking procedures, the Dollars or Foreign
Currency into which conversion is being made could be purchased with the
Foreign Currency from which conversion is being made from major banks located
in either New York City, London or any other principal market for Dollars or
such purchased Foreign Currency, in each case determined by the Exchange Rate
Agent. Unless otherwise specified with respect to any Securities pursuant to
Section 301, in the event of the unavailability of any of the exchange rates
provided for in the foregoing clauses (i), (ii) and (iii), the Exchange Rate
Agent shall use, in its sole discretion and without liability on its part,
such quotation of the Federal Reserve Bank of New York as of the most recent
available date, or quotations from one or more major banks in New York City,
London or other principal market for such currency or currency unit in
question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there
is more than one market for dealing in any currency or currency unit by
reason of foreign exchange regulations
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7
or otherwise, the market to be used in respect of such currency or currency
unit shall be that upon which a nonresident issuer of securities designated
in such currency or currency unit would purchase such currency or currency
unit in order to make payments in respect of such securities.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment, notice of exchange or conversion or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the
Chairman, the President or any Vice President and by the Treasurer, an
Assistant Treasurer, the Comptroller or an Assistant Comptroller, the
Secretary or an Assistant Secretary of the Company, and delivered to the
Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may
be counsel for the Company or who may be an employee of or other counsel for
the Company.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant
to Section 502.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto, PROVIDED
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
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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 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 such
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11
Security) and as set forth in such Security in accordance with generally
accepted United States bond yield computation principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all
such conditions precedent, if any, have been complied with, except that in
the case of any such application or request as to which the furnishing of
such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1005) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any
case where several matters are required to be certified by, or covered by an
opinion of, any specified Person, it is not necessary that all such matters
be certified by, or covered by the opinion of, only one such Person, or that
they be so certified or covered by only one document, but one such Person may
certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or
a certificate or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate
or representations
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12
may be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information as to such factual matters is in the possession
of the Company, unless such counsel knows, or in the exercise of reasonable
care should know, that the certificate or opinion or representations as to
such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities
of all series or one or more series, as the case may be, may be embodied in
and evidenced by one or more instruments of substantially similar tenor
signed by such Holders in person or by agents duly appointed in writing. If
Securities of a series are issuable as Bearer Securities, any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be given or taken by Holders of Securities of
such series may, alternatively, be embodied in and evidenced by the record of
Holders of Securities of such series voting in favor thereof, either in
person or by proxies duly appointed in writing, at any meeting of Holders of
Securities of such series duly called and held in accordance with the
provisions of Article Fifteen, or a combination of such instruments and any
such record. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments or record or both
are delivered to the Trustee and, where it is hereby expressly required, to
the Company. Such instrument or instruments and any such record (and the
action embodied therein and evidenced thereby) are herein sometimes referred
to as the "Act" of the Holders signing such instrument or instruments or so
voting at any such meeting. Proof of execution of any such instrument or of
a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
conclusive in favor of the Trustee and the Company and any agent of the
Trustee or the Company, if made in the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(b) The fact and date of the execution of any such instrument
or writing, or the authority of the Person executing the same, may be proved
in any manner that the Trustee deems reasonably sufficient.
(c) The ownership of Registered Securities shall be proved by
the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the
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13
Trustee to be satisfactory, showing that at the date therein mentioned such
Person had on deposit with such depositary, or exhibited to it, the Bearer
Securities therein described; or such facts may be proved by the certificate
or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4) such
Bearer Security is no longer Outstanding. The ownership of Bearer Securities
may also be proved in any other manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or pursuant
to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified in or pursuant to such Board Resolution,
which shall be a date not earlier than the date 30 days prior to the first
solicitation of Holders generally in connection therewith and not later than
the date such solicitation is completed. If such a record date is fixed,
such request, demand, authorization, direction, notice, consent, waiver or
other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented
to such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be computed
as of such record date; PROVIDED that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless
it shall become effective pursuant to the provisions of this Indenture not
later than eleven months after the record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee, any Security Registrar, any Paying Agent, any Authenticating Agent
or the Company in reliance thereon, whether or not notation of such action is
made upon such Security.
SECTION 105. NOTICES, ETC., TO TRUSTEE AND COMPANY. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed
in writing to or with the
<PAGE>
14
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration Division, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to the
Company addressed to it at the address of its principal office specified
in the first paragraph of this Indenture or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 106. NOTICE TO HOLDERS; WAIVER. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address
as it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as provided
herein. Any notice mailed to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder, whether or not
such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to
give such notice by mail, then such notification to Holders of Registered
Securities as shall be made with the approval of the Trustee shall constitute
a sufficient notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be
specified in such Securities on a Business Day, such publication to be not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. Any such notice shall be deemed to
have been given on the date of such publication or, if published more than
once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of
such notice with respect to other Holders of Bearer
<PAGE>
15
Securities or the sufficiency of any notice to Holders of Registered
Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such
notice, either before or after the event, and such waiver shall be the
equivalent of such notice. Waivers of notice by Holders shall be filed with
the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The
Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying
Agent, any Authenticating Agent and their successors hereunder and the
Holders any benefit or any legal or equitable right, remedy or claim under
this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities
and coupons shall be governed by and construed in accordance with the law of
the State of New York without regard to principles of conflicts of laws.
This Indenture is subject to the provisions of the Trust Indenture Act that
are required to be part of this Indenture and shall, to the extent
applicable, be governed by such provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date,
Stated Maturity or Maturity of any Security shall not be a Business Day at
any Place of Payment, then (notwithstanding any other provision of this
Indenture or any Security or coupon other than a provision in the Securities
of any series which specifically states that such provision shall apply
<PAGE>
16
in lieu of this Section), payment of principal (or premium, if any) or
interest, if any, need not be made at such Place of Payment on such date, but
may be made on the next succeeding Business Day at such Place of Payment with
the same force and effect as if made on the Interest Payment Date, Redemption
Date, Repayment Date or sinking fund payment date, or at the Stated Maturity
or Maturity; PROVIDED that no interest shall accrue on the amount so payable
for the period from and after such Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity, as
the case may be.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. FORMS OF SECURITIES. The Registered Securities, if
any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established
in one or more indentures supplemental hereto or approved from time to time
by or pursuant to a Board Resolution in accordance with Section 301, shall
have such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture or any indenture
supplemental hereto, and may have such letters, numbers or other marks of
identification or designation and such legends or endorsements placed thereon
as the Company may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage.
Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities or
coupons, as evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
Subject to Section 611, the Trustee's certificate of authentication shall be
in substantially the following form:
<PAGE>
17
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
By___________________________
Authorized Officer
SECTION 203. SECURITIES ISSUABLE IN GLOBAL FORM. If Securities
of or within a series are issuable in global form, as specified as
contemplated by Section 301, then, notwithstanding clause (8) of Section 301
and the provisions of Section 302, any such Security shall represent such of
the Outstanding Securities of such series as shall be specified therein and
may provide that it shall represent the aggregate amount of Outstanding
Securities of such series from time to time endorsed thereon and that the
aggregate amount of Outstanding Securities of such series represented thereby
may from time to time be increased or decreased to reflect exchanges. Any
endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions
given by such Person or Persons as shall be specified therein or in the
Company Order to be delivered to the Trustee pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304, the
Trustee shall deliver and redeliver any Security in permanent global form in
the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order. If a Company Order pursuant to
Section 303 or 304 has been, or simultaneously is, delivered, any
instructions by the Company with respect to endorsement, delivery or
redelivery of a Security in global form shall be in writing but need not
comply with Section 102 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to
any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if
<PAGE>
18
any, on any Security in permanent global form shall be made to the Person or
Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent
of the Company and the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security
(i) in the case of a permanent global Security in registered form, the Holder
of such permanent global Security in registered form, or (ii) in the case of
a permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited.
The Securities shall rank equally and pari passu and may be
issued in one or more series. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board
Resolutions and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable (each of which (except for
the matters set forth in clauses (1), (2) and (15) below), if so provided,
may be determined from time to time by the Company with respect to unissued
Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of the Securities
of the series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be
<PAGE>
19
determined, the Interest Payment Dates on which such interest will be
payable and the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, or the method
by which such date shall be determined, and the basis upon which such
interest shall be calculated if other than that of a 360-day year of
twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the Currency or Currencies in which, and other terms and
conditions upon which Securities of the series may be redeemed, in whole
or in part, at the option of the Company, if the Company is to have the
option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or prices
at which, the Currency or Currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other than
denominations of $5,000, the denomination or denominations in which any
Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency or Currencies in which
payment of the principal of (or premium, if any) or interest, if any, on
the Securities of the series shall be made or in which the Securities of
the series shall be denominated and the
<PAGE>
20
particular provisions applicable thereto in accordance with, in addition
to or in lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in one or more Currencies other than that
in which such Securities are denominated or stated to be payable, the
period or periods within which (including the Election Date), and the
terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency or
Currencies in which such Securities are denominated or stated to be
payable and the Currency or Currencies in which such Securities are to be
paid, in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section 1008) of
the Company with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided
in Section 305, and, if Registered Securities of the series are to be
issuable as a global Security, the identity of the depository for such
series;
<PAGE>
21
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner
in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature,
and the extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(21) whether, under what circumstances and the Currency in which,
the Company will pay Additional Amounts as contemplated by Section 1004 on
the Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so, whether
the Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(22) the designation of the initial Exchange Rate Agent, if any;
(23) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities will be so convertible or
exchangeable; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirements of
the Trust Indenture Act).
All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the
<PAGE>
22
same time and, unless otherwise provided, a series may be reopened, without
the consent of the Holders, for issuances of additional Securities of such
series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy
of an appropriate record of such action(s) shall be certified by the
Secretary or an Assistant Secretary of the Company and delivered to the
Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the Securities of such series.
SECTION 302. DENOMINATIONS. The Securities of each series shall
be issuable in such denominations as shall be specified as contemplated by
Section 301. With respect to Securities of any series denominated in
Dollars, in the absence of any such provisions with respect to the Securities
of any series, the Registered Securities of such series, other than
Registered Securities issued in global form (which may be of any
denomination) shall be issuable in denominations of $1,000 and any integral
multiple thereof, and the Bearer Securities of such series, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in a denomination of $5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities and any coupons appertaining thereto shall be executed on
behalf of the Company by its Chairman, its President or one of its Vice
Presidents, under its corporate seal reproduced thereon, and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities and coupons may be manual or facsimile signatures
of the present or any future such authorized officer and may be imprinted or
otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company, to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with the Company Order shall authenticate and deliver such Securities;
PROVIDED, HOWEVER, that, in connection with its original issuance, no Bearer
Security shall be mailed or otherwise delivered to any location in the United
States; and PROVIDED FURTHER that, unless otherwise specified with respect to
any series of Securities pursuant to Section 301, a Bearer Security may be
delivered in connection with its original issuance only if the Person
entitled to receive such Bearer Security shall have furnished a certificate
in the form set forth in Exhibit A-1 to this Indenture or such other
certificate as may be specified with respect to
<PAGE>
23
any series of Securities pursuant to Section 301, dated no earlier than 15
days prior to the earlier of the date on which such Bearer Security is
delivered and the date on which any temporary Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such
temporary Security and this Indenture. If any Security shall be represented
by a permanent global Bearer Security, then, for purposes of this Section and
Section 304, the notation of a beneficial owner's interest therein upon
original issuance of such Security or upon exchange of a portion of a
temporary global Security shall be deemed to be delivery in connection with
its original issuance of such beneficial owner's interest in such permanent
global Security. Except as permitted by Section 306, the Trustee shall not
authenticate and deliver any Bearer Security unless all appurtenant coupons
for interest then matured have been detached and cancelled. If all the
Securities of any series are not to be issued at one time and if the Board
Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this
Indenture in relation to such Securities, the Trustee shall be entitled to
receive, and (subject to TIA Section 315(a) through 315(d)) shall be fully
protected in relying upon,
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any
coupons have been established in conformity with the provisions of
this Indenture;
(b) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid
and binding obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, to
general equitable principles and to such other qualifications as
such counsel shall conclude do not materially affect the rights of
Holders of such Securities and any coupons; and
(ii) an Officers' Certificate stating, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
<PAGE>
24
Notwithstanding the provisions of Section 301 and of this Section
303, if all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order, Opinion of Counsel or Officers'
Certificate otherwise required pursuant to the preceding paragraph at the
time of issuance of each Security of such series, but such order, opinion and
certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
If such form or terms have been so established, the Trustee shall
not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the generality of the foregoing, the Trustee will not be
required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties
with respect to such Securities.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date
specified as contemplated by Section 301.
No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder and is entitled to the benefits of this Indenture. Notwithstanding
the foregoing, if any Security shall have been authenticated and delivered
hereunder but never issued and sold by the Company, and the Company shall
deliver such Security to the Trustee for cancellation as provided in Section
310 together with a written statement (which need not comply with Section 102
and need not be accompanied by an Opinion of Counsel) stating that such
Security has never been issued and sold by the Company, for all purposes of
this Indenture such Security shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the preparation
of definitive Securities of any series, the Company may execute, and upon
Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued, in
registered form, or, if authorized, in bearer form with one or more coupons
or without coupons, and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities
may determine, as conclusively evidenced by their
<PAGE>
25
execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with Section 304(b) or as otherwise provided
in or pursuant to a Board Resolution), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in
a Place of Payment for that series, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities of any
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations; PROVIDED, HOWEVER, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and PROVIDED FURTHER that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of such
series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary
or common depositary (the "Common Depositary"), for the benefit of Euroclear
and CEDEL, for credit to the respective accounts of the beneficial owners of
such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
On or after the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the Company's agent
for such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall authenticate and
deliver, in exchange for each portion of such temporary global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in
bearer form, registered form, permanent global bearer form or permanent
global registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so specified,
as requested by
<PAGE>
26
the beneficial owner thereof; PROVIDED, HOWEVER, that, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by
Euroclear as to the portion of such temporary global Security held for its
account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form
set forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and PROVIDED FURTHER that definitive
Bearer Securities shall be delivered in exchange for a portion of a temporary
global Security only in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for definitive Securities of the same
series and of like tenor following the Exchange Date when the account holder
instructs Euroclear or CEDEL, as the case may be, to request such exchange on
his behalf and delivers to Euroclear or CEDEL, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and CEDEL, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any
such exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like unless such Person takes delivery of such definitive Securities in
person at the offices of Euroclear or CEDEL. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 301, interest payable on a
temporary global Security on an Interest Payment Date for Securities of such
series occurring prior to the applicable Exchange Date shall be payable to
Euroclear and CEDEL on such Interest Payment Date upon delivery by Euroclear
and CEDEL to the Trustee of a certificate or certificates in the form set
forth in Exhibit A-2 to this Indenture (or in such other forms as may be
established pursuant to Section 301), for credit without further interest on
or after such Interest Payment Date to the respective accounts of Persons who
are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euroclear or CEDEL, as the case
may be, a certificate dated no earlier than 15 days prior to the Interest
Payment Date occurring prior to such Exchange Date in the form set forth as
Exhibit A-1 to this Indenture (or in such other forms as may be established
pursuant to Section 301). Notwithstanding anything to the contrary herein
contained, the certifications made pursuant to this paragraph shall satisfy
the certification requirements of the preceding
<PAGE>
27
two paragraphs of this Section 304(b) and of the third paragraph of Section
303 of this Indenture and the interests of the Persons who are the beneficial
owners of the temporary global Security with respect to which such
certification was made will be exchanged for definitive Securities of the
same series and of like tenor on the Exchange Date or the date of
certification if such date occurs after the Exchange Date, without further
act or deed by such beneficial owners. Except as otherwise provided in this
paragraph, no payments of principal (or premium, if any) or interest, if any,
owing with respect to a beneficial interest in a temporary global Security
will be made unless and until such interest in such temporary global Security
shall have been exchanged for an interest in a definitive Security. Any
interest so received by Euroclear and CEDEL and not paid as herein provided
shall be returned to the Trustee prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND
EXCHANGE. The Company shall cause to be kept at the Corporate Trust Office of
the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such
office or in any such office or agency of the Company in a Place of Payment
being herein sometimes referred to collectively as the "Security Register")
in which, subject to such reasonable regulations as it may prescribe, the
Company shall provide for the registration of Registered Securities and of
transfers of Registered Securities. The Security Register shall be in
written form or any other form capable of being converted into written form
within a reasonable time. The Trustee, at its Corporate Trust Office, is
hereby initially appointed "Security Registrar" for the purpose of
registering Registered Securities and transfers of Registered Securities on
such Security Register as herein provided. In the event that the Trustee
shall cease to be Security Registrar, it shall have the right to examine the
Security Register at all reasonable times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Registered Securities of the same series, of any
authorized denominations and of a like aggregate principal amount, bearing a
number not contemporaneously outstanding and containing identical terms and
provisions.
At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series, of any
authorized denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions, upon surrender of the
Registered Securities to be exchanged at any such office or agency. Whenever
any Registered Securities are so surrendered for exchange, the Company shall
execute, and the Trustee shall authenticate and deliver, the Registered
Securities which the Holder making the exchange is entitled to receive.
Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301, Bearer Securities may not be issued in exchange
for Registered Securities.
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28
If (but only if) permitted by the applicable Board Resolution and
(subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor, upon
surrender of the Bearer Securities to be exchanged at any such office or
agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any
such unmatured coupon or coupons or matured coupon or coupons in default, any
such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent any such missing coupon
in respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; PROVIDED, HOWEVER, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the
same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of
an interest in a permanent global Security is entitled to exchange such
interest for Securities of such series and of like tenor and principal amount
of another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in
any event not later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the Trustee definitive
<PAGE>
29
Securities in aggregate principal amount equal to the principal amount of
such beneficial owner's interest in such permanent global Security, executed
by the Company. On or after the earliest date on which such interests may be
so exchanged, such permanent global Security shall be surrendered by the
Common Depositary or such other depositary as shall be specified in the
Company Order with respect thereto to the Trustee, as the Company's agent for
such purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge and the Trustee shall authenticate and
deliver, in exchange for each portion of such permanent global Security, an
equal aggregate principal amount of definitive Securities of the same series
of authorized denominations and of like tenor as the portion of such
permanent global Security to be exchanged which, unless the Securities of the
series are not issuable both as Bearer Securities and as Registered
Securities, as specified as contemplated by Section 301, shall be in the form
of Bearer Securities or Registered Securities, or any combination thereof, as
shall be specified by the beneficial owner thereof; PROVIDED, HOWEVER, that
no such exchanges may occur during a period beginning at the opening of
business 15 days before any selection of Securities to be redeemed and ending
on the relevant Redemption Date if the Security for which exchange is
requested may be among those selected for redemption; and PROVIDED FURTHER
that no Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for any
portion of a permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing
the same debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company
or the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly
authorized in writing.
No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed
in connection with any registration of transfer or
<PAGE>
30
exchange of Securities, other than exchanges pursuant to Section 304, 906,
1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business
15 days before selection of the Securities to be redeemed under Section 1103
and ending at the close of business on (A) if such Securities are issuable
only as Registered Securities, the day of the mailing of the relevant notice
of redemption and (B) if such Securities are issuable as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if
such Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the portion thereof not to be redeemed, or
(iii) to exchange any Bearer Security so selected for redemption except that
such a Bearer Security may be exchanged for a Registered Security of that
series and like tenor, PROVIDED that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not
to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
If any mutilated Security or a Security with a mutilated coupon appertaining
to it is surrendered to the Trustee or the Company, together with, in proper
cases, such security or indemnity as may be required by the Company or the
Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security of the same series and principal amount,
containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (ii) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in
the absence of notice to the Company or the Trustee that such Security or
coupon has been acquired by a bona fide purchaser, the Company shall execute
and upon its request the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security or in exchange for the Security
to which a destroyed, lost or stolen coupon appertains (with all appurtenant
coupons not destroyed, lost or stolen), a new Security of the same series and
principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to such destroyed, lost or stolen Security or
to the Security to which such destroyed, lost or stolen coupon appertains.
<PAGE>
31
Notwithstanding the provisions of the previous two paragraphs, in
case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or
stolen coupon appertains, pay such Security or coupon; PROVIDED, HOWEVER,
that payment of principal of (and premium, if any) and interest, if any, on
Bearer Securities shall, except as otherwise provided in Section 1002, be
payable only at an office or agency located outside the United States and,
unless otherwise specified as contemplated by Section 301, any interest on
Bearer Securities shall be payable only upon presentation and surrender of
the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security,
or in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of
that series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET. (a) Except as otherwise specified with respect to
a series of Securities in accordance with the provisions of Section 301,
interest, if any, on any Registered Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be
paid to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 1002; PROVIDED, HOWEVER, that each installment of
interest, if any, on any Registered Security may at the Company's option be
paid by (i) mailing a check for such interest, payable to or upon the written
order of the Person entitled thereto pursuant to Section 309, to the address
of such Person as it appears on the Security Register or (ii) transfer to an
account maintained by the payee inside the United States.
<PAGE>
32
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account maintained
by the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with
respect to that portion of such permanent global Security held for its
account by the Common Depositary, for the purpose of permitting each of
Euroclear and CEDEL to credit the interest, if any, received by it in respect
of such permanent global Security to the accounts of the beneficial owners
thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on
the next succeeding Interest Payment Date, such Bearer Security shall be
surrendered without the coupon relating to such Interest Payment Date and
interest will not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but will be
payable only to the Holder of such coupon when due in accordance with the
provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on
any Registered Security of any series that is payable, but is not punctually
paid or duly provided for, on any Interest Payment Date (herein called
"Defaulted Interest") shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been
such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment (which shall not be less than 20 days
after such notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the Currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
<PAGE>
33
Persons entitled to such Defaulted Interest as in this clause provided.
Thereupon the Trustee shall fix a Special Record Date for the payment
of such Defaulted Interest which shall be not more than 15 days and not
less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the
proposed payment. The Trustee shall promptly notify the Company of
such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor to be mailed, first-class
postage prepaid, to each Holder of Registered Securities of such series
at his address as it appears in the Security Register not less than 10
days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefor having
been mailed as aforesaid, such Defaulted Interest shall be paid to the
Persons in whose names the Registered Securities of such series (or
their respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be payable
pursuant to the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of Payment for
such series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on the
related proposed date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such
proposed date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions
of this Indenture.
(2) The Company may make payment of any Defaulted Interest on
the Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required
by such exchange, if, after notice given by the Company to the Trustee
of the proposed payment pursuant to this clause, such manner of payment
shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to
such Section 301). The interest rate (or the spread or spread multiplier used
to calculate such interest rate, if applicable) on any Security of such
series may be reset by the Company on the date or dates specified on the face
of such Security (each an "Optional Reset Date"). The Company may exercise
such option with respect to such Security by notifying the Trustee of such
exercise at least 45 but not more than 60 days prior to an Optional Reset
Date for such Security. Not later than 40 days prior to each Optional Reset
Date, the Trustee shall transmit, in the manner provided for in Section 106,
to the Holder of any such Security a notice (the "Reset Notice") indicating
whether the Company has elected to reset the interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable), and
if so (i) such new interest rate (or such new spread or spread
<PAGE>
34
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset
Date or if there is no such next Optional Reset Date, to the Stated Maturity
Date of such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which
and the price or prices at which such redemption may occur during the
Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest
rate, if applicable) provided for in the Reset Notice and establish an
interest rate (or a spread or spread multiplier used to calculate such
interest rate, if applicable) that is higher than the interest rate (or the
spread or spread multiplier, if applicable) provided for in the Reset Notice,
for the Subsequent Interest Period by causing the Trustee to transmit, in the
manner provided for in Section 106, notice of such higher interest rate (or
such higher spread or spread multiplier, if applicable) to the Holder of such
Security. Such notice shall be irrevocable. All Securities with respect to
which the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable) is reset on an Optional Reset Date, and
with respect to which the Holders of such Securities have not tendered such
Securities for repayment (or have validly revoked any such tender) pursuant
to the next succeeding paragraph, will bear such higher interest rate (or
such higher spread or spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an
Optional Reset Date, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders except that the
period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 days prior to such Optional Reset Date and except that, if
the Holder has tendered any Security for repayment pursuant to the Reset
Notice, the Holder may, by written notice to the Trustee, revoke such tender
or repayment until the close of business on the tenth day before such
Optional Reset Date.
Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry
the rights to interest accrued and unpaid, and to accrue, which were carried
by such other Security.
SECTION 308. OPTIONAL EXTENSION OF MATURITY. The provisions of
this Section 308 may be made applicable to any series of Securities pursuant
to Section 301 (with such modifications, additions or substitutions as may be
specified pursuant to such Section 301). The Stated Maturity of any Security
of such series may be extended at the option of the Company for the period or
periods specified on the face of such Security (each an "Extension Period")
up to but not beyond the date (the "Final Maturity") set forth on the
<PAGE>
35
face of such Security. The Company may exercise such option with respect to
any Security by notifying the Trustee of such exercise at least 45 but not
more than 60 days prior to the Stated Maturity of such Security in effect
prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity,
(ii) the new Stated Maturity, (iii) the interest rate, if any, applicable to
the Extension Period and (iv) the provisions, if any, for redemption during
such Extension Period. Upon the Trustee's transmittal of the Extension
Notice, the Stated Maturity of such Security shall be extended automatically
and, except as modified by the Extension Notice and as described in the next
paragraph, such Security will have the same terms as prior to the transmittal
of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate provided for in the Extension Notice and establish a
higher interest rate for the Extension Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate to the Holder of such Security. Such notice shall be
irrevocable. All Securities with respect to which the Stated Maturity is
extended will bear such higher interest rate.
If the Company extends the Stated Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal
amount thereof, plus interest accrued to such date. In order to obtain
repayment on the Original Stated Maturity once the Company has extended the
Stated Maturity thereof, the Holder must follow the procedures set forth in
Article Thirteen for repayment at the option of Holders, except that the
period for delivery or notification to the Trustee shall be at least 25 but
not more than 35 days prior to the Original Stated Maturity and except that,
if the Holder has tendered any Security for repayment pursuant to an
Extension Notice, the Holder may by written notice to the Trustee revoke such
tender for repayment until the close of business on the tenth day before the
Original Stated Maturity.
SECTION 309. PERSONS DEEMED OWNERS. Prior to due presentment of
a Registered Security for registration of transfer, the Company, the Trustee
and any agent of the Company or the Trustee may treat the Person in whose
name such Registered Security is registered as the owner of such Security for
the purpose of receiving payment of principal of (and premium, if any) and
(subject to Sections 305 and 307) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such
Registered Security be overdue, and neither the Company, the Trustee nor any
agent of the Company or the Trustee shall be affected by notice to the
contrary.
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the
Company or the Trustee may treat
<PAGE>
36
the bearer of any Bearer Security and the bearer of any coupon as the
absolute owner of such Security or coupon for the purpose of receiving
payment thereof or on account thereof and for all other purposes whatsoever,
whether or not such Security or coupon be overdue, and neither the Company,
the Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect
of the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining,
supervising or reviewing any records relating to such beneficial ownership
interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent
of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depositary, as a
Holder, with respect to such global Security or impair, as between such
depositary and owners of beneficial interests in such global Security, the
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 310. CANCELLATION. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and Securities
and coupons surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered
shall be promptly cancelled by the Trustee. If the Company shall so acquire
any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation.
No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it.
SECTION 311. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest, if any, on the Securities of each series shall be computed
on the basis of a 360-day year consisting of twelve 30-day months.
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37
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF
SECURITIES. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series
not permitting the election provided for in paragraph (b) below or the
Holders of which have not made the election provided for in paragraph (b)
below, and with respect to Bearer Securities of any series, except as
provided in paragraph (d) below, payment of the principal of (and premium, if
any) and interest, if any, on any Registered or Bearer Security of such
series will be made in the Currency in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this
Section 312 may be modified or superseded with respect to any Securities
pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of
(or premium, if any) or interest, if any, on such Registered Securities in
any of the Currencies which may be designated for such election by delivering
to the Trustee for such series of Registered Securities a written election
with signature guarantees and in the applicable form established pursuant to
Section 301, not later than the close of business on the Election Date
immediately preceding the applicable payment date. If a Holder so elects to
receive such payments in any such Currency, such election will remain in
effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee for such series of
Registered Securities (but any such change must be made not later than the
close of business on the Election Date immediately preceding the next payment
date to be effective for the payment to be made on such payment date and no
such change of election may be made with respect to payments to be made on
any Registered Security of such series with respect to which an Event of
Default has occurred or with respect to which the Company has deposited funds
pursuant to Article Four or Fourteen or with respect to which a notice of
redemption has been given by the Company or a notice of option to elect
repayment has been sent by such Holder or such transferee). Any Holder of
any such Registered Security who shall not have delivered any such election
to the Trustee of such series of Registered Securities not later than the
close of business on the applicable Election Date will be paid the amount due
on the applicable payment date in the relevant Currency as provided in
Section 312(a). The Trustee for each such series of Registered Securities
shall notify the Exchange Rate Agent as soon as practicable after the
Election Date of the aggregate principal amount of Registered Securities for
which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not
later than the fourth Business Day after the Election Date for each payment
date for Registered Securities of any series, the Exchange Rate Agent will
deliver to the Company a written notice specifying the Currency in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any) and interest, if any, on the
Registered Securities to be paid on such
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38
payment date, specifying the amounts in such Currency so payable in respect
of the Registered Securities as to which the Holders of Registered Securities
denominated in any Currency shall have elected to be paid in another Currency
as provided in paragraph (b) above. If the election referred to in paragraph
(b) above has been provided for pursuant to Section 301 and if at least one
Holder has made such election, then, unless otherwise specified pursuant to
Section 301, on the second Business Day preceding such payment date the
Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency
or Currencies amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate
in effect on the second Business Day (the "Valuation Date") immediately
preceding each payment date, and such determination shall be conclusive and
binding for all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then
with respect to each date for the payment of principal of (and premium, if
any) and interest, if any on the applicable Securities denominated or payable
in such Foreign Currency occurring after the last date on which such Foreign
Currency was used (the "Conversion Date"), the Dollar shall be the currency
of payment for use on each such payment date. Unless otherwise specified
pursuant to Section 301, the Dollar amount to be paid by the Company to the
Trustee of each such series of Securities and by such Trustee or any Paying
Agent to the Holders of such Securities with respect to such payment date
shall be, in the case of a Foreign Currency other than a currency unit, the
Dollar Equivalent of the Foreign Currency or, in the case of a currency unit,
the Dollar Equivalent of the Currency Unit, in each case as determined by the
Exchange Rate Agent in the manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above,
and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election; and if a Conversion Event occurs with
respect to the Currency in which payment would have been made in the absence
of such election, such Holder shall receive payment in Dollars as provided in
paragraph (d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each
subsequent payment date by converting the specified Foreign Currency into
Dollars at the Market Exchange Rate on the Conversion Date.
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39
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of
paragraph (h) below shall be the sum of each amount obtained by converting
the Specified Amount of each Component Currency into Dollars at the Market
Exchange Rate for such Component Currency on the Valuation Date with respect
to each payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "COMPONENT CURRENCY" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the ECU.
A "SPECIFIED AMOUNT" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by
an amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall thereafter
be a Specified Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of
such two or more currencies, having an aggregate Dollar Equivalent
value at the Market Exchange Rate on the date of such replacement
equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately
before such division, and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency
unit, including, but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on
the Conversion Date of such Component Currency.
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40
"ELECTION DATE" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior
to Maturity, as the case may be, or such other prior date for any
series of Registered Securities as specified pursuant to clause 13
of Section 301 by which the written election referred to in
Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar
Equivalent of the Currency Unit, the Market Exchange Rate and changes in the
Specified Amounts as specified above shall be in its sole discretion and
shall, in the absence of manifest error, be conclusive for all purposes and
irrevocably binding upon the Company, the Trustee for the appropriate series
of Securities and all Holders of such Securities denominated or payable in
the relevant Currency. The Exchange Rate Agent shall promptly give written
notice to the Company and the Trustee for the appropriate series of
Securities of any such decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the
appropriate series of Securities and to the Exchange Rate Agent (and such
Trustee will promptly thereafter give notice in the manner provided in
Section 106 to the affected Holders) specifying the Conversion Date. In the
event the Company so determines that a Conversion Event has occurred with
respect to the ECU or any other currency unit in which Securities are
denominated or payable, the Company will immediately give written notice
thereof to the Trustee of the appropriate series of Securities and to the
Exchange Rate Agent (and such Trustee will promptly thereafter give notice in
the manner provided in Section 106 to the affected Holders) specifying the
Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event the Company determines in good faith that any
subsequent change in any Component Currency as set forth in the definition of
Specified Amount above has occurred, the Company will similarly give written
notice to the Trustee of the appropriate series of Securities and to the
Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received
by it from the Company and the Exchange Rate Agent and shall not otherwise
have any duty or obligation to determine the accuracy or validity of such
information independent of the Company or the Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE
RATE AGENT. (a) Unless otherwise specified pursuant to Section 301, if and
so long as the Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make
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41
the necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the
applicable rate of exchange and, if applicable, for the purpose of converting
the issued Foreign Currency into the applicable payment Currency for the
payment of principal (and premium, if any) and interest, if any, pursuant to
Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor
Exchange Rate Agent as evidenced by a written instrument delivered to the
Company and the Trustee of the appropriate series of Securities accepting
such appointment executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with
respect to the Securities of that or those series (it being understood that
any such successor Exchange Rate Agent may be appointed with respect to the
Securities of one or more or all of such series and that, unless otherwise
specified pursuant to Section 301, at any time there shall only be one
Exchange Rate Agent with respect to the Securities of any particular series
that are originally issued by the Company on the same date and that are
initially denominated and/or payable in the same Currency).
SECTION 314. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so,
the Trustee shall indicate the "CUSIP" numbers of the Securities in notices
of redemption as a convenience to Holders; PROVIDED that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of
redemption and that reliance may be placed only on the other identification
numbers printed on the Securities, and any such redemption shall not be
affected by any defect in or omission of such numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon Company Request cease to be of further effect with
respect to any series of Securities specified in such Company Request (except
as to any surviving rights of registration of transfer or exchange of
Securities of such series expressly provided for herein or pursuant hereto
and any right to receive Additional Amounts, as provided in Section 1004),
and the Trustee, upon receipt of a Company Order, and at the expense of the
Company, shall execute
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42
proper instruments acknowledging satisfaction and discharge of this Indenture
as to such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Section 305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106,
and (iv) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of
the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in the Currency in
which the Securities of such series are payable, sufficient to pay
and discharge the entire indebtedness on such Securities and such
coupons not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and interest, if any, to the
date of such deposit (in the case of Securities which have become
due and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
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43
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 and, if money shall have been deposited with the Trustee pursuant
to subclause (B) of clause (1) of this Section, the obligations of the
Trustee under Section 402 and the last paragraph of Section 1003 shall
survive.
SECTION 402. APPLICATION OF TRUST FUNDS. Subject to the
provisions of the last paragraph of Section 1003, all money deposited with
the Trustee pursuant to Section 401 shall be held in trust and applied by it,
in accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited
with or received by the Trustee, but such money need not be segregated from
other funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. EVENTS OF DEFAULT. "Event of Default", wherever
used herein with respect to any particular series of Securities, means any
one of the following events (whatever the reason for such Event of Default
and whether or not it shall be voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body):
(1) default in the payment of any interest upon any Security of
that series or of any coupon appertaining thereto, when such interest or
coupon becomes due and payable, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable at
its Maturity; or
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44
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company in this Indenture with respect to any Security of
that series (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60
days after there has been given, by registered or certified mail, to the
Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in principal amount of the Outstanding Securities of that
series a written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of Default"
hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary
case,
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days; or
(7) any other Event of Default provided with respect to
Securities of that series.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or other similar official under any
Bankruptcy Law.
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45
SECTION 502. ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default with respect to Securities of any series at the time
Outstanding occurs and is continuing, then and in every such case the Trustee
or the Holders of not less than 25% in principal amount of the Outstanding
Securities of that series may declare the principal (or, if any Securities
are Original Issue Discount Securities or Indexed Securities, such portion of
the principal as may be specified in the terms thereof) of all the Securities
of that series to be due and payable immediately, by a notice in writing to
the Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal or specified portion thereof shall become
immediately due and payable.
At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of
the Outstanding Securities of that series, by written notice to the Company
and the Trustee, may rescind and annul such declaration and its consequences
if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)):
(A) all overdue installments of interest, if any, on all
Outstanding Securities of that series and any related coupons,
(B) the principal of (and premium, if any, on) all
Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium, if any)
or interest on Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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46
SECTION 503. COLLECTION OF INDEBTEDNESS AND SUITS FOR
ENFORCEMENT BY TRUSTEE. The Company covenants that if:
(1) default is made in the payment of any installment of interest
on any Security of any series and any related coupon when such interest
becomes due and payable and such default continues for a period of 30
days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of Securities of such series and coupons, the
whole amount then due and payable on such Securities and coupons for
principal (and premium, if any) and interest, if any, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of
such interest shall be legally enforceable, upon any overdue installments of
interest, if any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and
may enforce the same against the Company or any other obligor upon Securities
of such series and collect the moneys adjudged or decreed to be payable in
the manner provided by law out of the property of the Company or any other
obligor upon such Securities of such series, wherever situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings
as the Trustee shall deem most effectual to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities
or the property of the Company or of such other obligor or their creditors,
the Trustee (irrespective of whether the principal of the Securities of any
series shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any
demand on the Company for the payment of any overdue principal, premium or
interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise:
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47
(i) to file and prove a claim for the whole amount of principal
(or in the case of Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be provided for in the
terms thereof) (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized
by each Holder of Securities of such series and coupons to make such payments
to the Trustee, and in the event that the Trustee shall consent to the making
of such payments directly to the Holders, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee and any predecessor Trustee, their agents and
counsel, and any other amounts due the Trustee or any predecessor Trustee
under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder of a
Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
SECURITIES OR COUPONS. All rights of action and claims under this Indenture
or any of the Securities or coupons may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such
proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities and coupons in respect of
which such judgment has been recovered.
SECTION 506. APPLICATION OF MONEY COLLECTED. Any money
collected by the Trustee pursuant to this Article shall be applied in the
following order, at the date or dates fixed by the Trustee and, in case of
the distribution of such money on account of principal (or premium, if any)
or interest, if any, upon presentation of the Securities or coupons, or both,
as the case may be, and the notation thereon of the payment if only partially
paid and upon surrender thereof if fully paid:
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48
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest,
if any, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities and
coupons for principal (and premium, if any) and interest, if any,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company or
any other Person or Persons entitled thereto.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of
any series or any related coupon shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall
have any right in any manner whatever by virtue of, or by availing of, any
provision of this Indenture to affect, disturb or prejudice the rights of any
other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
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49
SECTION 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and
premium, if any) and (subject to Sections 305 and 307) interest, if any, on
such Security or payment of such coupon on the respective due dates expressed
in such Security or coupon (or, in the case of redemption, on the Redemption
Date) and to institute suit for the enforcement of any such payment, and such
rights shall not be impaired without the consent of such Holder.
SECTION 509. RESTORATION OF RIGHTS AND REMEDIES. If the Trustee
or any Holder of a Security or coupon has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case the Company, the
Trustee and the Holders of Securities and coupons shall, subject to any
determination in such proceeding, be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding had
been instituted.
SECTION 510. RIGHTS AND REMEDIES CUMULATIVE. Except as
otherwise provided with respect to the replacement or payment of mutilated,
destroyed, lost or stolen Securities or coupons in the last paragraph of
Section 306, no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be
exclusive of any other right or remedy, and every right and remedy shall, to
the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
SECTION 511. DELAY OR OMISSION NOT WAIVER. No delay or omission
of the Trustee or of any Holder of any Security or coupon to exercise any
right or remedy accruing upon any Event of Default shall impair any such
right or remedy or constitute a waiver of any such Event of Default or an
acquiescence therein. Every right and remedy given by this Article or by law
to the Trustee or to the Holders may be exercised from time to time, and as
often as may be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
SECTION 512. CONTROL BY HOLDERS OF SECURITIES. The Holders of a
majority in principal amount of the Outstanding Securities of any series
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee with respect to the Securities of such series,
PROVIDED that
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50
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it
in personal liability or be unjustly prejudicial to the Holders of
Securities of such series not consenting.
SECTION 513. WAIVER OF PAST DEFAULTS. The Holders of not less
than a majority in principal amount of the Outstanding Securities of any
series may on behalf of the Holders of all the Securities of such series and
any related coupons waive any past default hereunder with respect to such
series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related coupons,
or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right
consequent thereon.
SECTION 514. WAIVER OF STAY OR EXTENSION LAWS. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or
at any time hereafter in force, which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of
any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
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51
ARTICLE SIX
THE TRUSTEE
SECTION 601. NOTICE OF DEFAULTS. Within 90 days after the
occurrence of any Default hereunder with respect to the Securities of any
series, the Trustee shall transmit in the manner and to the extent provided
in TIA Section 313(c), notice of such Default hereunder known to the Trustee,
unless such Default shall have been cured or waived; PROVIDED, HOWEVER, that,
except in the case of a Default in the payment of the principal of (or
premium, if any) or interest, if any, on any Security of such series, or in
the payment of any sinking or purchase fund installment with respect to the
Securities of such series, the Trustee shall be protected in withholding such
notice if and so long as the board of directors, the executive committee or a
trust committee of directors and/or Responsible Officers of the Trustee in
good faith determines that the withholding of such notice is in the interests
of the Holders of the Securities and coupons of such series; and PROVIDED
FURTHER that in the case of any Default or breach of the character specified
in Section 501(4) with respect to the Securities and coupons of such series,
no such notice to Holders shall be given until at least 60 days after the
occurrence thereof.
SECTION 602. CERTAIN RIGHTS OF TRUSTEE. Subject to the
provisions of TIA Section 315(a) through 315(d):
(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(2) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as provided
therein) and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution.
(3) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon a Board Resolution, an Opinion of Counsel
or an Officers' Certificate.
(4) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect
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52
of any action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(5) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(6) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
(7) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(8) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth
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53
therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar, Authenticating
Agent or such other agent.
SECTION 605. MONEY HELD IN TRUST. Money held by the Trustee in
trust hereunder need not be segregated from other funds except to the extent
required by law. The Trustee shall be under no liability for interest on any
money received by it hereunder except as otherwise agreed with the Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) To pay to the Trustee from time to time such compensation for
all services rendered by it hereunder as has been agreed upon in writing
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust).
(2) Except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith.
(3) To indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its own part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (or premium, if any) or
interest, if any, on particular Securities or any coupons.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There
shall at all times be a Trustee hereunder which shall be eligible to act as
Trustee under TIA
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54
Section 310(a)(1) and shall have a combined capital and surplus of at least
$50,000,000. If such corporation publishes reports of condition at least
annually, pursuant to law or the requirements of Federal, State, Territorial
or District of Columbia supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set
forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of
this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 607(a) and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who has been
a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court
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55
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving
of a notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed may petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series). If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner hereinafter provided, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to
<PAGE>
56
such successor Trustee all the rights, powers and trusts of the retiring
Trustee, and shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder,
subject nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be necessary
or desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates, (2) if the retiring Trustee is
not retiring with respect to all Securities, shall contain such provisions as
shall be deemed necessary or desirable to confirm that all the rights,
powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring Trustee is not
retiring shall continue to be vested in the retiring Trustee, and (3) shall
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, it being understood that nothing herein
or in such supplemental indenture shall constitute such Trustees co-trustees
of the same trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts hereunder
administered by any other such Trustee; and upon the execution and delivery
of such supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates; but, on request of the Company
or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or
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consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part
of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating
Trustee may adopt such authentication and deliver the Securities or coupons
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force
and effect which this Indenture provides for the certificate of
authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. Any
such appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be
promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and, except as may otherwise be provided pursuant
to Section 301, shall at all times be a bank or trust company or corporation
organized and doing business and in good standing under the laws of the
United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $1,500,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. In case at
any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger,
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58
conversion or consolidation to which such Authenticating Agent shall be a
party, or any corporation succeeding to the corporate agency or corporate
trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for such series
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve in the manner set forth in Section 106. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
By __________________________
as Authenticating Agent
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59
By __________________________
Authorized Officer
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA
Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after May 15 of
each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to
all Holders of Securities as provided in TIA Section 313(c) a brief report
dated as of such May 15 if required by TIA Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee of the listing of the
Securities on any stock exchange.
SECTION 703. REPORTS BY COMPANY. The Company will:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or copies of
such portions of any of the foregoing as the Commission may from time to
time by rules and regulations prescribe) which the Company may be required
to file with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to
file information, documents or reports pursuant to either of such
Sections, then it will file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by the
Commission, such of the supplementary and periodic information, documents
and reports which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
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60
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company with the conditions and covenants of this Indenture as may
be required from time to time by such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required by rules and
regulations prescribed from time to time by the Commission.
SECTION 704. CALCULATION OF ORIGINAL ISSUE DISCOUNT. Upon
request of the Trustee, the Company shall file with the Trustee promptly at
the end of each calendar year a written notice specifying the amount of
original issue discount (including daily rates and accrual periods), if any,
accrued on Outstanding Securities as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge with or into any other
corporation or convey or transfer its properties and assets substantially as
an entirety to any Person, unless:
(1) either the Company shall be the continuing corporation, or
the corporation (if other than the Company) formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company
substantially as an entirety shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest, if any, on all the Securities and
the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing;
(3) if as a result thereof any property or assets of the Company
or a Restricted Subsidiary would become subject to any mortgage, lien,
pledge, charge or other encumbrance not permitted by (i) through (xi) of
paragraph (a) of Section 1006 or paragraph (b) of Section 1006, compliance
shall be effected with the first clause of paragraph (a) of Section 1006;
and
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(4) the Company and the successor Person have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor had been named as the Company herein; and in the
event of any such conveyance or transfer, the Company shall be discharged
from all obligations and covenants under this Indenture and the Securities
and coupons and may be dissolved and liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Securities or coupons, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee, at any
time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company
herein and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to
be for the benefit of less than all series of Securities, stating that
such covenants are expressly being included solely for the benefit of such
series) or to surrender any right or power herein conferred upon the
Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of
Default are to be for the benefit of less than all series of Securities,
stating that such Events of Default are expressly being included solely
for the benefit of such series); PROVIDED, HOWEVER, that in respect of any
such additional Events of Default such supplemental indenture may provide
for a particular period of grace after default (which period may be
shorter or longer than that
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62
allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to
the Trustee upon such default or may limit the right of the Holders of
a majority in aggregate principal amount of that or those series of
Securities to which such additional Events of Default apply to waive
such default; or
(4) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of
Section 801 or 1006, or otherwise; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including
the provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; PROVIDED that such action shall not adversely affect
the interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; PROVIDED that any such action shall
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not adversely affect the interests of the Holders of Securities of such
series and any related coupons or any other series of Securities in any
material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of all Outstanding Securities affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on,
any Security; or reduce the principal amount thereof or the rate of
interest thereon, or any premium payable upon the redemption thereof,
or change any obligation of the Company to pay Additional Amounts
pursuant to Section 1004 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the portion of the principal of
an Original Issue Discount Security or Indexed Security that would be
due and payable upon a declaration of acceleration of the Maturity
thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any
Place of Payment where, or the Currency in which, any Security or any
premium or interest thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at
the option of the Holder, on or after the Redemption Date or the
Repayment Date, as the case may be), or adversely affect any right to
convert or exchange any Security as may be provided pursuant to Section
301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements
of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
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It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not
such Holders remain Holders after such record date; provided, that unless
such consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the date which is 90 days after such
record date, any such consent previously given shall automatically and
without further action by any Holder be cancelled and of no further effect.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
shall be fully protected in relying upon, an Opinion of Counsel stating that
the execution of such supplemental indenture is authorized or permitted by
this Indenture. The Trustee may, but shall not be obligated to, enter into
any such supplemental indenture which affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise.
SECTION 904. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
SECTION 905. CONFORMITY WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities of any series authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall, if
required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company
shall so determine, new Securities of any series so modified as to conform,
in the opinion of the Trustee and the Company, to any such supplemental
indenture may be
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65
prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The
Company covenants and agrees for the benefit of the Holders of each series of
Securities that it will duly and punctually pay the principal of (and
premium, if any) and interest, if any, on the Securities of that series in
accordance with the terms of such series of Securities, any coupons
appertaining thereto and this Indenture. Any interest due on Bearer
Securities on or before Maturity, other than Additional Amounts, if any,
payable as provided in Section 1004 in respect of principal of (or premium,
if any, on) such a Security, shall be payable only upon presentation and
surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. Unless otherwise specified with
respect to Securities of any series pursuant to Section 301, at the option of
the Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security. Unless otherwise specified as contemplated by
Section 301 with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable only upon
presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY. If Securities of
a series are issuable only as Registered Securities, the Company shall
maintain in each Place of Payment for any series of Securities an office or
agency where Securities of that series may be presented or surrendered for
payment, where Securities of that series may be surrendered for registration
of transfer or exchange, where Securities of that series that are convertible
or exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. If Securities of
a series are issuable as Bearer Securities, the Company will maintain (A) in
the Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, where notices and demands to or upon the Company in respect of
the Securities of that series and this Indenture may be served and where
Bearer Securities of that series and related coupons may be presented or
surrendered for payment in the circumstances described in the following
paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside
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66
the United States, an office or agency where Securities of that series and
related coupons may be presented and surrendered for payment; PROVIDED,
HOWEVER, that if the Securities of that series are listed on the Luxembourg
Stock Exchange or any other stock exchange located outside the United States
and such stock exchange shall so require, the Company will maintain a Paying
Agent for the Securities of that series in Luxembourg or any other required
city located outside the United States, as the case may be, so long as the
Securities of that series are listed on such exchange, and (C) subject to any
laws or regulations applicable thereto, in a Place of Payment for that series
located outside the United States an office or agency where any Registered
Securities of that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where notices and
demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. The Company will give prompt written
notice to the Trustee of the location, and any change in the location, of
each such office or agency. If at any time the Company shall fail to
maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of that series and the related coupons may be
presented and surrendered for payment at the offices specified in the
Security, in London, England, and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and
demands, and the Company hereby appoints the Trustee its agent to receive all
such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are payable in
Dollars, payment of principal of (and premium, if any) and interest, if any,
on any Bearer Security shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest,
as the case may be, at all offices or agencies outside the United States
maintained for such purpose by the Company in accordance with this Indenture,
is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of such purposes, and may from time
to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any Securities
pursuant
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to Section 301 with respect to a series of Securities, the Company hereby
designates as Places of Payment for each series of Securities the office or
agency of the Company in the Borough of Manhattan, The City of New York, and
initially appoints the Trustee at its Corporate Trust Office as Paying Agent
in such city and as its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i)
are denominated in a currency other than Dollars or (ii) may be payable in a
currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one Exchange Rate
Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect to
any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (or premium, if any) or interest, if any,
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency in which
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68
the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to
pay the principal of (and premium, if any) and interest, if any, on
Securities of such series so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest, if any, so becoming due, such sum to be held in
trust for the benefit of the Persons entitled to such principal, premium or
interest and (unless such Paying Agent is the Trustee) the Company will
promptly notify the Trustee of its action or failure so to act.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by
the Trustee upon the same trusts as those upon which such sums were held by
the Company or such Paying Agent; and, upon such payment by any Paying Agent
to the Trustee, such Paying Agent shall be released from all further
liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series and remaining unclaimed for
two years after such principal, premium or interest has become due and
payable shall be paid to the Company upon Company Request or (if then held by
the Company) shall be discharged from such trust; and the Holder of such
Security shall thereafter, as an unsecured general creditor, look only to the
Company for payment of such principal, premium or interest on any Security,
without interest thereon, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; PROVIDED, HOWEVER, that the Trustee
or such Paying Agent, before being required to make any such repayment, may
at the expense of the Company cause to be published once, in an Authorized
Newspaper, notice that such money remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed balance of such money then remaining will be
repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS. If the Securities of a series
provide for the payment of Additional Amounts, the Company will pay to the
Holder of a Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as
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contemplated by Section 301. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series or payment of any related
coupon or the net proceeds received on the sale or exchange of any Security
of any series, such mention shall be deemed to include mention of the payment
of Additional Amounts provided by the terms of such series established
pursuant to Section 301 to the extent that, in such context, Additional
Amounts are, were or would be payable in respect thereof pursuant to such
terms and express mention of the payment of Additional Amounts (if
applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is
not made.
Except as otherwise specified as contemplated by Section 301, if
the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal
and any premium is made), and at least 10 days prior to each date of payment
of principal, premium or interest if there has been any change with respect
to the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal, premium or interest on the Securities of that series
shall be made to Holders of Securities of that series or any related coupons
who are not United States persons without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities
of the series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities of that series
or related coupons and the Company will pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of such Securities. In
the event that the Trustee or any Paying Agent, as the case may be, shall not
so receive the above-mentioned certificate, then the Trustee or such Paying
Agent shall be entitled (i) to assume that no such withholding or deduction
is required with respect to any payment of principal or interest with respect
to any Securities of a series or related coupons until it shall have received
a certificate advising otherwise and (ii) to make all payments of principal
and interest with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised. The Company
covenants to indemnify the Trustee and any Paying Agent for, and to hold them
harmless against, any loss, liability or expense reasonably incurred without
negligence or bad faith on their part arising out of or in connection with
actions taken or omitted by any of them in reliance on any Officers'
Certificate furnished pursuant to this Section or in reliance on the
Company's not furnishing such an Officers' Certificate.
SECTION 1005. STATEMENT AS TO COMPLIANCE. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this
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Indenture. For purposes of this Section 1005, such compliance shall be
determined without regard to any period of grace or requirement of notice
under this Indenture.
SECTION 1006. LIMITATION ON LIENS. (a) The Company will not,
nor will it permit any Restricted Subsidiary to, issue, incur, assume or
guarantee any debt (hereinafter in this Article Ten referred to as "Debt")
secured by any mortgage, security interest, pledge, lien or other encumbrance
(hereinafter called "mortgage" or "mortgages") upon any Important Property of
the Company or of a Restricted Subsidiary or upon any shares of stock or
indebtedness of any Restricted Subsidiary (whether such Important Property,
shares of stock or indebtedness is now owned or hereafter acquired) without
in any such case effectively providing, concurrently with the issuance,
incurrence, assumption or guaranty of any such Debt, that the Securities
(together with, if the Company shall so determine, any other indebtedness of
or guaranteed by the Company or such Restricted Subsidiary ranking equally
with the Securities and then existing or thereafter created) shall be secured
equally and ratably with or prior to such Debt; PROVIDED, HOWEVER, that the
foregoing restrictions shall not apply to
(i) mortgages on any property acquired, constructed or improved
by the Company or any Restricted Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with, or within
120 days after, such acquisition, construction or improvement to secure or
provide for the payment of all or any part of the purchase price of such
property or the cost of such construction or improvement incurred after
the date of this Indenture, or (in addition to mortgages contemplated by
clauses (ii), (iii) and (iv) below) mortgages on any property existing at
the time of acquisition thereof; PROVIDED that such mortgages shall not
apply to any Important Property theretofore owned by the Company or any
Restricted Subsidiary other than, in the case of any such construction or
improvement, any theretofore unimproved real property on which the
property so constructed, or the improvement, is located;
(ii) mortgages on any property, shares of stock, or indebtedness
existing at the time of acquisition thereof from a corporation which is
consolidated with or merged into, or substantially all of the assets of
which are acquired by, the Company or a Restricted Subsidiary;
(iii) mortgages on property of a corporation existing at the time
such corporation becomes a Restricted Subsidiary;
(iv) mortgages to secure Debt of a Restricted Subsidiary to the
Company or to another Restricted Subsidiary;
(v) mortgages in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, to
secure partial, progress, advance or other
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payments pursuant to any contract or statute or to secure any
indebtedness incurred for the purpose of financing all or any part of
the purchase price or the cost of constructing or improving the
property subject to such mortgages and mortgages given to secure
indebtedness incurred in connection with the financing of construction
of pollution control facilities, the interest on which indebtedness is
exempt from income taxes under the Internal Revenue Code of the United
States of America;
(vi) any deposit or pledge of assets (1) with any surety
company or clerk of any court, or in escrow, as collateral in
connection with, or in lieu of, any bond on appeal from any judgment or
decree against the Company or a Restricted Subsidiary, or in connection
with other proceedings or actions at law or in equity by or against the
Company or a Restricted Subsidiary, or (2) as security for the
performance of any contract or undertaking not directly or indirectly
related to the borrowing of money or the securing of indebtedness, if
made in the ordinary course of business, or (3) with any governmental
agency, which deposit or pledge is required or permitted to qualify the
Company or a Restricted Subsidiary to conduct business, to maintain
self-insurance, or to obtain the benefits of any law pertaining to
workers' compensation, unemployment insurance, old age pensions, social
security, or similar matters, or (4) made in the ordinary course of
business to obtain the release of mechanics', workmen's, repairmen's,
warehousemen's or similar liens, or the release of property in the
possession of a common carrier;
(vii) mortgages existing on property acquired by the Company or
a Restricted Subsidiary through the exercise of rights arising out of
defaults on receivables acquired in the ordinary course of business;
(viii) judgment liens, so long as the finality of such judgment is
being contested in good faith and execution thereon is stayed;
(ix) mortgages for the sole purpose of extending, renewing or
replacing in whole or in part Debt secured by any mortgage referred to in
the foregoing clauses (i) to (viii), inclusive, or in this clause (ix);
PROVIDED, HOWEVER, that the principal amount of Debt secured thereby shall
not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which
secured the mortgage so extended, renewed or replaced (plus improvements
on such property);
(x) liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by appropriate
proceedings; landlord's liens on property held under lease; and any other
liens of a nature similar to those hereinabove described in this clause
(x) which do not, in the opinion of the Company, materially impair the
use
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of such property in the operation of the business of the Company or a
Restricted Subsidiary or the value of such property for the purposes of
such business;
(xi) any transaction characterized as a sale of receivables
(retail or wholesale) but reflected as secured indebtedness on a balance
sheet in conformity with generally accepted accounting principles then in
effect;
(xii) mortgages on Margin Stock owned by the Company and its
Restricted Subsidiaries to the extent such Margin Stock so mortgaged
exceeds 25% of the fair market value of the sum of the Important Property
of the Company and the Restricted Subsidiaries plus the shares of stock
(including Margin Stock) and indebtedness issued or incurred by the
Restricted Subsidiaries; and
(xiii) mortgages on any Important Property of, or any shares of
stock or indebtedness issued or incurred by, any Restricted Subsidiary
organized under the laws of Canada.
(b) The provisions of paragraph (a) of this Section 1006 shall
not apply to the issuance, incurrence, assumption or guarantee by the Company
or any Restricted Subsidiary of Debt secured by a mortgage which would
otherwise be subject to the foregoing restrictions up to an aggregate amount
which, together with all other Debt of the Company and its Restricted
Subsidiaries that is secured by mortgages (other than mortgages permitted by
paragraph (a) of this Section 1006) and would otherwise be subject to the
foregoing restrictions and the Attributable Debt in respect of Sale and
Lease-back Transactions (as defined in Section 1007) in existence at such
time (other than Sale and Lease-back Transactions which, if the Attributable
Debt in respect of such Sale and Lease-back had been a mortgage, would have
been permitted by subdivision (i) of paragraph (a) of this Section 1006 and
other Sale and Lease-back Transactions the proceeds of which have been
applied or committed to be applied in accordance with paragraph (b) or (c) of
Section 1007) does not at the time exceed 5% of Consolidated Net Tangible
Assets, as shown on the audited consolidated balance sheet contained in the
latest annual report to stockholders of the Company.
The term "RESTRICTED SUBSIDIARY" shall mean any Subsidiary (i)
engaged in, or whose principal assets consist of property used by the Company
or any Restricted Subsidiary in, the manufacture of products within the
United States of America or Canada, or in the sale of products principally to
customers located in the United States of America or Canada except any
corporation which is a retail dealer in which the Company has, directly or
indirectly, an investment under an arrangement providing for the liquidation
of such investment, or (ii) which the Company shall designate as a Restricted
Subsidiary in an Officers' Certificate delivered to the Trustee.
The term "IMPORTANT PROPERTY" shall mean (i) any manufacturing
plant, including land, all buildings and other improvements thereon, and all
manufacturing
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machinery and equipment located therein, used by the Company or a Restricted
Subsidiary primarily for the manufacture of products to be sold by the
Company or such Restricted Subsidiary, (ii) the executive office and
administrative building of the Company in Moline, Illinois, and (iii)
research and development facilities, including land and buildings and other
improvements thereon and research and development machinery and equipment
located therein, except in any case property of which the aggregate fair
value as determined by the Board of Directors does not at the time exceed 1%
of Consolidated Net Tangible Assets, as shown on the audited consolidated
balance sheet contained in the latest annual report to stockholders of the
Company.
The term "CONSOLIDATED NET TANGIBLE ASSETS" shall mean the
aggregate amount of assets (less applicable reserves and other items properly
deductible in accordance with generally accepted accounting principles) of
the Company and of its consolidated Subsidiaries after deducting therefrom
(a) all current liabilities (excluding any constituting funded debt, as
defined in Section 1007, by reason of their being renewable or extendable)
and (b) all goodwill, trade names, trademarks, patents, unamortized debt
discount and expense and other like intangibles.
The term "ATTRIBUTABLE DEBT" shall mean, as of any particular
time, the present value, discounted at a rate per annum equal to the weighted
average interest rate of all Securities Outstanding at the time under this
Indenture compounded semiannually, of the obligation of a lessee for rental
payments during the remaining term of any lease (including any period for
which such lease has been extended or may, at the option of the lessor, be
extended); the net amount of rent required to be paid for any such period
shall be the total amount of the rent payable by the lessee with respect to
such period, but may exclude amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges; and, in the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so
terminated.
(c) If, upon any consolidation or merger of any Restricted
Subsidiary with or into any other corporation, or upon any consolidation or
merger of any other corporation with or into the Company or any Restricted
Subsidiary or upon any sale or conveyance of the property of any Restricted
Subsidiary as an entirety or substantially as an entirety to any other
Person, or upon any acquisition by the Company or any Restricted Subsidiary
by purchase or otherwise of all or any part of the property of any other
Person, any Important Property theretofore owned by the Company or such
Restricted Subsidiary would thereupon become subject to any mortgage not
permitted by the terms of paragraph (a) or (b) of this Section 1006, the
Company, prior to such consolidation, merger, sale or conveyance, or
acquisition, will, or will cause such Restricted Subsidiary to, secure
payment of the principal of and interest on the Securities (equally and
ratably with or prior to any other indebtedness of the Company or such
Subsidiary then entitled thereto) by a direct lien on all such property
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74
prior to all liens other than any liens theretofore existing thereon by
supplemental indenture hereto or otherwise.
(d) If at any time the Company or any Restricted Subsidiary
shall issue, incur, assume or guarantee any Debt secured by any mortgage not
permitted by this Section 1006, to which the covenant in paragraph (a) of
this Section 1006 is applicable, the Company will promptly deliver to the
Trustee
(i) an Officers' Certificate stating that the covenant of the
Company contained in paragraph (a) or (c) of this Section 1006 has been
complied with; and
(ii) an Opinion of Counsel to the effect that such covenant has
been complied with, and that any instruments executed by the Company in
the performance of such covenant comply with the requirements of such
covenant.
In the event that the Company shall hereafter secure the
Securities equally and ratably with or prior to any other obligation or
indebtedness pursuant to the provisions of this Section 1006, the Trustee is
hereby authorized to enter into an indenture or agreement supplemental hereto
and to take such action, if any, as it may deem advisable to enable it to
enforce effectively the rights of the holders of the Securities so secured,
equally and ratably with or prior to such other obligations or indebtedness.
SECTION 1007. LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS.
The Company will not, nor will it permit any Restricted Subsidiary to, enter
into any arrangement with any Person providing for the leasing to the Company
or any Restricted Subsidiary of any Important Property owned or hereafter
acquired by the Company or such Restricted Subsidiary (except for temporary
leases for a term, including any renewal thereof, of not more than three
years and except for leases between the Company and a Restricted Subsidiary
or between Restricted Subsidiaries), which Important Property has been or is
to be sold or transferred by the Company or such Restricted Subsidiary to
such Person (herein referred to as a "Sale and Lease-back Transaction")
unless the net proceeds of such sale are at least equal to the fair value (as
determined by the Board of Directors) of such property and either (a) the
Company or such Restricted Subsidiary would be entitled, pursuant to the
provisions of (1) clause (i) of paragraph (a) of Section 1006 or (2)
paragraph (b) of Section 1006 hereof, to incur Debt secured by a mortgage on
the Important Property to be leased without equally and ratably securing the
Securities, or (b) the Company shall, and in any such case the Company
covenants that it will, within 120 days of the effective date of any such
arrangement, apply an amount equal to the fair value (as so determined) of
such property to the redemption pursuant to Section 1101 hereof or the
purchase and retirement of Securities or to the payment or other retirement
of funded debt for money borrowed, incurred or assumed by the Company which
ranks senior to or pari passu with the Securities or of funded debt for money
borrowed, incurred or assumed by any Restricted Subsidiary (other than, in
either case, funded debt owned by the Company or any Restricted Subsidiary),
or (c) the Company shall, at or prior to
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the time of entering into the Sale and Lease-back Transaction, enter into a
bona fide commitment or commitments to expend for the acquisition or
improvement of an Important Property an amount at least equal to the fair
value (as so determined) of such property. For this purpose, funded debt
means any Debt which by its terms matures at or is extendable or renewable at
the sole option of the obligor without requiring the consent of the obligee
to a date more than twelve months after the date of the creation of such Debt.
SECTION 1008. WAIVER OF CERTAIN COVENANTS. The Company may omit
in any particular instance to comply with any term, provision or condition
set forth in Sections 1006, 1007 and, as specified pursuant to Section
301(15) for Securities of any series, in any covenants of the Company added
to Article Ten pursuant to Section 301(14) or Section 301(15) in connection
with Securities of a series, if before or after the time for such compliance
the Holders of at least a majority in principal amount of all outstanding
Securities, by Act of such Holders, waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no
such waiver shall extend to or affect such term, provision or condition
except to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee in
respect of any such term, provision or condition shall remain in full force
and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in accordance with
this Article.
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE. The
election of the Company to redeem any Securities shall be evidenced by or
pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series issued on the same day with the
same terms are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 60 days
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prior to the Redemption Date by the Trustee, from the Outstanding Securities
of such series issued on such date with the same terms not previously called
for redemption, by such method as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
the minimum authorized denomination for Securities of that series or any
integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall
be given in the manner provided in Section 106, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301, to
each Holder of Securities to be redeemed, but failure to give such notice in
the manner herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption
of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities
in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without a charge, a new Security
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or Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or the
portion thereof, to be redeemed and, if applicable, that interest thereon
shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing
after the Redemption Date, are to be surrendered for payment of the
Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made, and
(10) the CUSIP number of such Security, if any.
Notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and
at the expense of the Company.
SECTION 1105. DEPOSIT OF REDEMPTION PRICE. On or prior to any
Redemption Date, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, which it may not
do in the case of a sinking fund payment under Article Twelve, segregate and
hold in trust as provided in Section 1003) an amount of money in the Currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an
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Interest Payment Date) accrued interest on, all the Securities or portions
thereof which are to be redeemed on that date.
SECTION 1106. SECURITIES PAYABLE ON REDEMPTION DATE. Notice of
redemption having been given as aforesaid, the Securities so to be redeemed
shall, on the Redemption Date, become due and payable at the Redemption Price
therein specified in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) (together with accrued interest, if any, to the
Redemption Date), and from and after such date (unless the Company shall
default in the payment of the Redemption Price and accrued interest, if any)
such Securities shall if the same were interest-bearing cease to bear
interest and the coupons for such interest appertaining to any Bearer
Securities so to be redeemed, except to the extent provided below, shall be
void. Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; PROVIDED, HOWEVER, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable
only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons
for such interest; and PROVIDED FURTHER that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee
if there be furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; PROVIDED, HOWEVER, that interest represented by coupons shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of those
coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in
such Security or, in the case of Original Issue Discount Security, at the
Yield to Maturity of such Security.
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SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the
Security so surrendered. However, if less than all the Securities of any
series with differing issue dates, interest rates and stated maturities are
to be redeemed, the Company in its sole discretion shall select the
particular Securities to be redeemed and shall notify the Trustee in writing
thereof at least 45 days prior to the relevant redemption date.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein referred
to as an "optional sinking fund payment". If provided for by the terms of
any Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be applied to the redemption of Securities of any
series as provided for by the terms of Securities of such series.
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH
SECURITIES. The Company may, in satisfaction of all or any part of any
mandatory sinking fund payment with respect to the Securities of a series,
(1) deliver Outstanding Securities of such series (other than any previously
called for redemption) together in the case of any Bearer Securities of such
series with all unmatured coupons appertaining thereto and (2) apply as a
credit Securities of such series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through
the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, as provided for by the terms of such Securities;
PROVIDED that such Securities so delivered or applied as a credit have not
been previously so credited. Such Securities shall be received and credited
for such purpose by the Trustee at the applicable Redemption Price specified
in such Securities for redemption through
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operation of the sinking fund and the amount of such mandatory sinking fund
payment shall be reduced accordingly.
SECTION 1203. REDEMPTION OF SECURITIES FOR SINKING FUND. Not
less than 60 days prior to each sinking fund payment date for Securities of
any series, the Company will deliver to the Trustee an Officers' Certificate
specifying the amount of the next ensuing mandatory sinking fund payment for
that series pursuant to the terms of that series, the portion thereof, if
any, which is to be satisfied by payment of cash in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable,
as provided in Sections 312(b), 312(d) and 312(e)) and the portion thereof,
if any, which is to be satisfied by delivering and crediting Securities of
that series pursuant to Section 1202, and the optional amount, if any, to be
added in cash to the next ensuing mandatory sinking fund payment, and will
also deliver to the Trustee any Securities to be so delivered and credited.
If such Officers' Certificate shall specify an optional amount to be added in
cash to the next ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not less than 30
days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be
given in the name of and at the expense of the Company in the manner provided
in Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. APPLICABILITY OF ARTICLE. Repayment of Securities
of any series before their Stated Maturity at the option of Holders thereof
shall be made in accordance with the terms of such Securities and (except as
otherwise specified by the terms of such series established pursuant to
Section 301) in accordance with this Article.
SECTION 1302. REPAYMENT OF SECURITIES. Securities of any series
subject to repayment in whole or in part at the option of the Holders thereof
will, unless otherwise provided in the terms of such Securities, be repaid at
the Repayment Price thereof, together with interest, if any, thereon accrued
to the Repayment Date specified in or pursuant to the terms of such
Securities. The Company covenants that on or before the Repayment Date it
will deposit with the Trustee or with a Paying Agent (or, if the Company is
acting as its own Paying Agent, segregate and hold in trust as provided in
Section 1003) an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applicable, as provided
in Sections 312(b), 312(d) and 312(e)) sufficient to pay the Repayment Price
of, and (except if
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the Repayment Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof, as the case may be, to be repaid on
such date.
SECTION 1303. EXERCISE OF OPTION. Securities of any series
subject to repayment at the option of the Holders thereof will contain an
"Option to Elect Repayment" form on the reverse of such Securities. To be
repaid at the option of the Holder, any Security so providing for such
repayment, with the "Option to Elect Repayment" form on the reverse of such
Security duly completed by the Holder (or by the Holder's attorney duly
authorized in writing), must be received by the Company at the Place of
Payment therefor specified in the terms of such Security (or at such other
place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire Repayment Price of such
Security is to be repaid in accordance with the terms of such Security, the
portion of the Repayment Price of such Security to be repaid, in increments
of the minimum denomination for Securities of such series, and the
denomination or denominations of the Security or Securities to be issued to
the Holder for the portion of such Security surrendered that is not to be
repaid, must be specified. Any Security providing for repayment at the
option of the Holder thereof may not be repaid in part if, following such
repayment, the unpaid principal amount of such Security would be less than
the minimum authorized denomination of Securities of the series of which such
Security to be repaid is a part. Except as otherwise may be provided by the
terms of any Security providing for repayment at the option of the Holder
thereof, exercise of the repayment option by the Holder shall be irrevocable
unless waived by the Company.
SECTION 1304. WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE
AND PAYABLE. If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest
and the coupons for such interest appertaining to any Bearer Securities so to
be repaid, except to the extent provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the Repayment Price of such Security so to be
repaid shall be paid by the Company, together with accrued interest, if any,
to the Repayment Date; PROVIDED, HOWEVER, that coupons whose Stated Maturity
is on or prior to the Repayment Date shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified pursuant to Section 301, only
upon presentation and surrender of such coupons; and PROVIDED FURTHER that,
in the case of Registered Securities, installments of interest, if any, whose
Stated Maturity is on or prior to the Repayment Date shall be payable (but
without interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Securities, or one or more Predecessor
Securities, registered as
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such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date,
such Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such
missing coupons, or the surrender of such missing coupon or coupons may be
waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; PROVIDED,
HOWEVER, that interest represented by coupons shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security surrendered for repayment shall not be so repaid
upon surrender thereof, the Repayment Price shall, until paid, bear interest
from the Repayment Date at the rate of interest set forth in such Security
or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal
to and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 301
provision is made for either or both of (a) defeasance of the Securities of
or within a series under Section 1402 or (b) covenant defeasance of the
Securities of or within a series under Section 1403, then the provisions of
such Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time,
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with respect to such Securities and any coupons appertaining thereto, elect
to have Section 1402 (if applicable) or Section 1403 (if applicable) be
applied to such Outstanding Securities and any coupons appertaining thereto
upon compliance with the conditions set forth below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities
and any coupons appertaining thereto on the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "defeasance"). For this purpose,
such defeasance means that the Company shall be deemed to have paid and
discharged the entire indebtedness represented by such Outstanding Securities
and any coupons appertaining thereto, which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) of this Section, and to
have satisfied all its other obligations under such Securities and any
coupons appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to receive,
solely from the trust fund described in Section 1404 and as more fully set
forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1004, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option
under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403. COVENANT DEFEASANCE. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released from its obligations
under Sections 1006 and 1007, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto on and after the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "covenant
defeasance"), and such Securities and any coupons appertaining thereto shall
thereafter be deemed to be not "Outstanding" for the purposes of any
direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with Sections 1006 and 1007, or
such other covenant, but shall continue to be deemed "Outstanding" for all
other purposes hereunder. For this purpose, such covenant defeasance means
that, with respect to such Outstanding Securities and any coupons
appertaining thereto, the Company may omit to comply with and shall have no
liability in respect of any term, condition or limitation set forth
<PAGE>
84
in any such Section or such other covenant, whether directly or indirectly,
by reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant
to any other provision herein or in any other document and such omission to
comply shall not constitute a Default or an Event of Default under Section
501(4) or 501(7) or otherwise, as the case may be, but, except as specified
above, the remainder of this Indenture and such Securities and any coupons
appertaining thereto shall be unaffected thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities and
any coupons appertaining thereto, (1) an amount (in such Currency in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity), or (2) Government Obligations applicable to
such Securities and coupons appertaining thereto (determined on the basis
of the Currency in which such Securities and coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof in an amount, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any) and interest, if any, on such Outstanding Securities
and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Default or Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such
<PAGE>
85
deposit or, insofar as Sections 501(5) and 501(6) are concerned, at any
time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that
(i) the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner
and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD
IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the proceeds
thereof) deposited with the Trustee (or other
<PAGE>
86
qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of any Outstanding Securities
of any series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities
and any coupons appertaining thereto and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as
its own Paying Agent) as the Trustee may determine, to the Holders of such
Securities and any coupons appertaining thereto of all sums due and to become
due thereon in respect of principal (and premium, if any) and interest, if
any, but such money need not be segregated from other funds except to the
extent required by law.
Unless otherwise specified with respect to any Security pursuant
to Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was made
is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 312(d)
or 312(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 1404(a) has been made, the indebtedness represented by
such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest, if any, on such Security as
the same becomes due out of the proceeds yielded by converting (from time to
time as specified below in the case of any such election) the amount or other
property deposited in respect of such Security into the Currency in which
such Security becomes payable as a result of such election or Conversion
Event based on the applicable Market Exchange Rate for such Currency in
effect on the second Business Day prior to each payment date, except, with
respect to a Conversion Event, for such Currency in effect (as nearly as
feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
<PAGE>
87
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. If
Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at
such place in the Borough of Manhattan, The City of New York or in London as
the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
New York or in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities of any series shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
PROVIDED, HOWEVER, that if any action is to be
<PAGE>
88
taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a
quorum. In the absence of a quorum within 30 minutes of the time appointed
for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such meeting. In
the absence of a quorum at any such adjourned meeting, such adjourned meeting
may be further adjourned for a period of not less than 10 days as determined
by the chairman of the meeting prior to the adjournment of such adjourned
meeting. Notice of the reconvening of any adjourned meeting shall be given
as provided in Section 1502(a), except that such notice need be given only
once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of any adjourned
meeting shall state expressly the percentage, as provided above, of the
principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum
is present as aforesaid may be adopted by the affirmative vote of the Holders
of a majority in principal amount of the Outstanding Securities of that
series; PROVIDED, HOWEVER, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if
any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of
such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
<PAGE>
89
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS. (a) Notwithstanding any provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy shall
be proved in the manner specified in Section 104 or by having the signature
of the Person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding
of Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting
shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
<PAGE>
90
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the fact, setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
<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 /S/ NATHAN J. JONES
----------------------
[SEAL] Treasurer
Attest:
/s/ Michael A. Harring
- -------------------------
[Assistant Secretary]
THE CHASE MANHATTAN BANK
(National Association),
as Trustee
By /s/ Valerie Dunbar
-----------------------
Second Vice President
[SEAL]
Attest:
/s/ Mary Lewicki
- -----------------------------
Assistant Secretary
<PAGE>
STATE OF ILLINOIS )
) ss:
COUNTY OF ROCK ISLAND )
On the 8th day of July, 1994, before me personally came Nathan J.
Jones, to me known, who, being by me duly sworn, did depose and say that he
resides at 1805 Harding Court, Bettendorf, Iowa; 52722; that he is Treasurer
of Deere & Company, one of the corporations described in and which executed
the foregoing instrument; that he knows the seal of said corporation; that
the seal affixed to said instrument is such corporate seal; that it was so
affixed by authority of the Board of Directors of said corporation; and that
he signed his name thereto by like authority.
[Notarial Seal]
/s/ Marsha L. Mack
--------------------
Notary Public
COMMISSION EXPIRES
STATE OF NEW YORK )
) ss:
COUNTY OF KINGS )
On the 14th day of July, 1994, before me personally came Valerie
Dunbar, to me known, who, being by me duly sworn, did depose and say that she
resides in Yonkers, New York; that she is a Second Vice President of The
Chase Manhattan Bank (National Association), one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation; and that she signed his name thereto by like authority.
[Notarial Seal]
/s/ Della K. Benjamin
---------------------------
Notary Public
COMMISSION EXPIRES
<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.
<PAGE>
A-1-2
As used herein, "UNITED STATES" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct
on such date, and in the absence of any such notification it may be assumed
that this certification applies as of such date.
This certificate excepts and does not relate to [U.S.$] _________
of such interest in the above-captioned Securities in respect of which we are
not able to certify and as to which we understand an exchange for an interest
in a Permanent Global Security or an exchange for and delivery of definitive
Securities (or, if relevant, collection of any interest) cannot be made until
we do so certify.
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated: , 19
______________ ____
[To be dated no earlier than the 15th day prior to (i) the Exchange Date or
(ii) the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
_______________________
(Authorized Signatory)
Name:
Title:
<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.
<PAGE>
A-2-2
We further certify that (i) we are not making available herewith
for exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member Organizations and
(ii) as of the date hereof we have not received any notification from any of
our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted
herewith for exchange (or, if relevant, collection of any interest) are no
longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If administrative or
legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such
proceedings.
Dated: , 19
_______________ ____
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of
New York, Brussels Office,]
as Operator of the Euroclear System
[Cedel S.A.]
By __________________________
<PAGE>
[FACE OF NOTE]
CUSIP NO.
REGISTERED
PRINCIPAL AMOUNT
No. FX -
DEERE & COMPANY
MEDIUM-TERM NOTE, SERIES C,
Due from 9 Months to 30 Years from Date of Issue
(FIXED RATE)
If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "DEPOSITORY") or a nominee of the Depository, this
Security is a Global Security and the following two legends apply:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
<PAGE>
2
ISSUE PRICE: OPTION TO ELECT REPAYMENT: [ ] YES [ ] NO
ORIGINAL ISSUE DATE: OPTIONAL REPAYMENT DATE[S]:
STATED MATURITY DATE: MINIMUM DENOMINATION:
[ ] $1,000
[ ] Other:
SPECIFIED CURRENCY: ADDITIONAL AMOUNTS:
United States Dollars:
[ ] YES [ ] NO DEFEASANCE: [ ] YES [ ] NO
Foreign Currency: COVENANT DEFEASANCE: [ ] YES [ ] NO
EXCHANGE RATE AGENT: TOTAL AMOUNT OF OID:
OPTION TO RECEIVE PAYMENTS IN YIELD TO MATURITY:
SPECIFIED CURRENCY OTHER THAN
U.S. DOLLARS: [ ] YES [ ] NO INITIAL ACCRUAL PERIOD OID:
INTEREST RATE: OPTIONAL INTEREST RATE RESET:
[ ] YES [ ] NO
INTEREST PAYMENT DATES IF OPTIONAL INTEREST RATE RESET
OTHER THAN MARCH 15 AND DATES:
SEPTEMBER 15:
REGULAR RECORD DATES IF OTHER SINKING FUND:
THAN MARCH 1 AND SEPTEMBER 1:
OPTIONAL REDEMPTION: [ ] YES
[ ] NO
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE
REDUCTION:
OTHER/DIFFERENT PROVISIONS:
<PAGE>
3
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 ___________________________ on the Stated Maturity Date shown above
(except to the extent redeemed or repaid prior to the Stated Maturity Date)
and to pay interest, if any, thereon at the Interest Rate shown above from
the Original Issue Date shown above or from the most recent Interest Payment
Date to which interest, if any, has been paid or duly provided for,
semi-annually on March 15 and September 15 of each year (unless other
Interest Payment Dates are shown on the face hereof) (each, an "INTEREST
PAYMENT DATE") until the principal hereof is paid or made available for
payment and on the Stated Maturity Date, any Redemption Date or Repayment
Date (such terms are together hereinafter referred to as the "MATURITY DATE"
with respect to the principal repayable on such date); PROVIDED, HOWEVER,
that any payment of principal (or premium, if any) or interest, if any, to be
made on any Interest Payment Date or on the Maturity Date that is not a
Business Day (as defined below) shall be made on the next succeeding Business
Day with the same force and effect as if made on such Interest Payment Date
or the Maturity Date, as the case may be, and no additional interest, if any,
shall accrue on the amount so payable as a result of such delayed payment.
For purposes of this Security, unless otherwise specified on the face hereof,
"BUSINESS DAY" means any day that is not a Saturday or Sunday and that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New
York; PROVIDED, HOWEVER, that, if the Specified Currency from above is a
foreign currency, such day is also not a day on which commercial banks are
authorized or required by law, regulation or executive order to close in the
Principal Financial Center (as defined) of the country issuing the Specified
Currency (or, if the Specified Currency is the euro, such day is also a day
on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open). "Principal Financial Center" means the
capital city of the country issuing the Specified Currency except that with
respect to United States dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, South African rand and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Sydney and
(solely in the case of the Specified Currency) Melbourne, Toronto, Frankfurt,
Amsterdam, Johannesburg and Zurich, respectively.
Any interest hereon is accrued from, and including, the immediately
preceding Interest Payment Date in respect of which interest, if any, has been
paid or duly provided for (or from, and including, the Original Issue Date if no
interest has been paid) to, but excluding, the succeeding Interest Payment Date
or the Maturity Date, as the case may be. The interest, if any, so payable, and
punctually paid or duly provided for, on any Interest Payment Date
<PAGE>
4
will, as provided in the Indenture and subject to certain exceptions described
herein (referred to on the reverse hereof), be paid to the person (the "HOLDER")
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the March 1 or September 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date (unless other Regular Record Dates are specified on the face hereof) (each,
a "REGULAR RECORD DATE"); PROVIDED, HOWEVER, that, if this Security was issued
between a Regular Record Date and the initial Interest Payment Date relating to
such Regular Record Date, interest, if any, for the period beginning on the
Original Issue Date and ending on such initial Interest Payment Date shall be
paid on the Interest Payment Date following the next succeeding Regular Record
Date to the Holder hereof on such next succeeding Regular Record Date; and
PROVIDED FURTHER that interest, if any, payable on the Maturity Date will be
payable to the person to whom the principal hereof shall be payable. Any such
interest not so punctually paid or duly provided for on any Interest Payment
Date other than the Maturity Date ("DEFAULTED INTEREST") will forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a special record date (the "SPECIAL
RECORD DATE") for the payment of such Defaulted Interest to be fixed by the
Trustee (referred to on the reverse hereof), notice whereof shall be given to
the Holder of this Security not less than ten days prior to such Special Record
Date, or may be paid at any time in any other lawful manner, all as more fully
provided in the Indenture.
Unless otherwise specified above, all payments in respect of this
Security will be made in U.S. dollars regardless of the Specified Currency shown
above unless the Holder hereof makes the election described below. If the
Specified Currency shown above is other than U.S. dollars, the Exchange Rate
Agent (referred to on the reverse hereof) will arrange to convert any such
amounts so payable in respect hereof into U.S. dollars in the manner described
on the reverse hereof; PROVIDED, HOWEVER, that the Holder hereof may, if so
indicated above, elect to receive all or any specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Security in such
Specified Currency by delivery of a written request to the corporate trust
office of the Trustee in The City of New York, on or prior to the applicable
Regular Record Date or at least twelve days prior to the Maturity Date, as the
case may be. Such request may be in writing (mailed or hand delivered) or by
cable, telex or other form of facsimile transmission. The Holder hereof may
elect to receive payment in such Specified Currency for all principal, premium,
if any, and interest, if any, payments and need not file a separate election for
each payment. Such election will remain in effect until revoked by written
notice to the Trustee, but written notice of any such revocation must be
received by the Trustee on or prior to the applicable Regular Record Date or at
least fifteen days prior to the Maturity Date, as the case may be.
In the event of an official redenomination of the Specified Currency,
the obligations of the Company with respect to payments on this Security shall,
in all cases, be
<PAGE>
5
deemed immediately following such redenomination to provide for payment of that
amount of redenominated currency representing the amount of such obligations
immediately before such redenomination. In no event shall any adjustment be
made to any amount payable hereunder as a result of any change in the value of
the Specified Currency shown above relative to any other currency due solely to
fluctuations in exchange rates.
Until this Security is paid in full or payment therefor in full is
duly provided for, the Company will at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in The City of New York (which, unless
otherwise specified above, shall be the "Place of Payment"). The Company has
initially appointed The Chase Manhattan Bank at its office in The City of New
York as Paying Agent.
Unless otherwise shown above, payment of interest on this Security
(other than on the Maturity Date) will be made by check mailed to the registered
address of the Holder hereof; PROVIDED, HOWEVER, that, if (i) the Specified
Currency is U.S. dollars and this is a Global Security or (ii) the Specified
Currency is a Foreign Currency, and the Holder has elected to receive payments
in such Specified Currency as provided for above, such interest payments will be
made by transfer of immediately available funds, but only if appropriate
instructions have been received in writing by the Trustee on or prior to the
applicable Regular Record Date. Simultaneously with any election by the Holder
hereof to receive payments in respect hereof in the Specified Currency (if other
than U.S. dollars), such Holder may provide appropriate instructions to the
Trustee, and all such payments will be made in immediately available funds to an
account maintained by the payee with a bank, but only if such bank has
appropriate facilities therefor. Unless otherwise specified above, the
principal hereof (and premium, if any) and interest, if any, hereon payable on
the Maturity Date will be paid in immediately available funds upon surrender of
this Security at the office of the Trustee maintained for that purpose in the
Borough of Manhattan, The City and State of New York (or at such other location
as may be specified above). The Company will pay any administrative costs
imposed by banks in making payments in immediately available funds but, except
as otherwise provided under Additional Amounts above, any tax, assessment or
governmental charge imposed upon payments will be borne by the Holders of the
Securities in respect of which such payments are made.
Interest on this Security, if any, will be computed on the basis of a
360-day year of twelve 30-day months.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
<PAGE>
6
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security 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.
DEERE & COMPANY
By:
---------------------------------
Authorized Officer
Attest:
-----------------------------
Secretary
Dated: 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,
as Trustee
By:
---------------------------------
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
DEERE & COMPANY
MEDIUM-TERM NOTE, SERIES C
Section 1. GENERAL. This Security is one of a duly authorized issue
of securities (herein called the "SECURITIES") of the Company, issued and to be
issued in one or more series under an indenture, dated as of July 1, 1994, as
it may be supplemented from time to time (herein called the "INDENTURE"),
between the Company and The Chase Manhattan Bank (successor by merger to The
Chase Manhattan Bank (National Association)), Trustee (herein called the
"TRUSTEE", which term includes any successor trustee under the Indenture with
respect to a series of which this Security 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. This
Security is one of the series designated on the face hereof which is unlimited
in aggregate principal amount.
Section 2. PAYMENTS. If the Specified Currency is other than U.S.
dollars and the Holder hereof fails to elect payment in such Specified Currency,
the amount of U.S. dollar payments to be made in respect hereof will be
determined by the Exchange Rate Agent specified on the face hereof or a
successor thereto (the "EXCHANGE RATE AGENT") based on the highest bid quotation
in The City of New York at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date by the Exchange Rate
Agent for the purchase by the Exchange Rate Agent from three recognized foreign
exchange dealers (one of whom may be the Exchange Rate Agent) selected by the
Exchange Rate Agent and approved by the Company for the purchase by the quoting
dealer of the Specified Currency for U.S. dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Securities scheduled to receive U.S. dollar payments and at which the applicable
dealer commits to execute a contract. If three such bid quotations are not
available, payments will be made in the Specified Currency. All currency
exchange costs will be borne by the Holder of the Securities by deductions from
such payments.
Except as set forth below, if the Specified Currency is other than
U.S. dollars and the Specified Currency is not available due to the imposition
of exchange controls or to other circumstances beyond the Company's control, the
Company will be entitled to satisfy its obligations to the Holder of this
Security by making such payment in U.S. dollars on the basis of the noon buying
rate in The City of New York for cable transfers of such Specified Currency as
certified for customs purposes (or, if not so certified, as otherwise
determined) by the Federal Reserve Bank of New York (the "MARKET EXCHANGE RATE")
for such Specified Currency as computed by the Exchange Rate Agent on the second
Business Day prior to the applicable payment date or, if the Market Exchange
Rate is then not available, on the basis of the most recently available Market
Exchange Rate or as otherwise indicated above.
<PAGE>
2
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion (except to the extent expressly provided that
any determination is subject to approval by the Company) and, in the absence of
manifest error, shall be conclusive for all purposes and binding on the Holder
of this Security and the Exchange Rate Agent shall have no liability therefor.
All currency exchange costs will be borne by the Company unless the
Holder of this Security has made the election to receive payments in the
Specified Currency. In that case, the Holder shall bear its pro rata portion of
currency exchange costs, if any, by deductions from payments otherwise due to
such Holder.
References herein to "U.S. DOLLARS" or "U.S. $" or "$" are to the
currency of the United States of America.
Section 3. REDEMPTION. If so specified on the face hereof, the
Company may at its option redeem this Security in whole or from time to time in
part in increments of $1,000 (provided that any remaining principal amount of
this Security shall not be less than the Minimum Denomination specified on the
face hereof) on or after the date designated as the Initial Redemption Date on
the face hereof at 100% of the unpaid principal amount hereof or the portion
thereof redeemed (or, if this Security is a Discount Security, such lesser
amount as is provided for below) multiplied by the Initial Redemption Percentage
specified on the face hereof, together with accrued interest, if any, to the
Redemption Date. Such Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by an amount equal to the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
redemption price is 100% of the unpaid principal amount hereof. The Company may
exercise such option by causing the Trustee to mail a notice of such redemption
at least 30 but not more than 60 days prior to the Redemption Date. In the
event of redemption of this Security in part only, a new Security or Securities
for the unredeemed portion hereof shall be issued in the name of the Holder
hereof upon the cancellation hereof. If less than all of the Securities with
like tenor and terms to this Security are to be redeemed, the Securities to be
redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate. However, if less than all the Securities of the
series, of which this Security is a part, with differing issue dates, interest
rates or formula 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.
Section 4. REPAYMENT. If so specified on the face hereof, this
Security shall be repayable prior to the Stated Maturity Date at the option of
the Holder on each applicable Optional Repayment Date shown on the face hereof
at a repayment price equal to 100% of the principal amount to be repaid,
together with accrued interest, if any, to the Repayment Date.
<PAGE>
3
In order for this Security to be repaid, the Trustee must receive at least 30
but not more than 60 days prior to an Optional Repayment Date, this Security
with the form attached hereto entitled "OPTION TO ELECT REPAYMENT" duly
completed. Any tender of this Security for repayment shall be irrevocable. The
repayment option may be exercised by the Holder of this Security in whole or in
part in increments of $1,000 (provided that any remaining principal amount of
this Security shall not be less than the Minimum Denomination specified on the
face hereof). Upon any partial repayment, this Security shall be canceled and a
new Security or Securities for the remaining principal amount hereof shall be
issued in the name of the Holder of this Security.
Section 5. SINKING FUND. Unless otherwise specified on the face
hereof, this Security will not be subject to any sinking fund.
Section 6. DISCOUNT SECURITIES. If this Security (such a Security
being referred to as a "DISCOUNT SECURITY") (a) has been issued at an Issue
Price lower, by more than a DE MINIMIS amount (as determined under United States
federal income tax rules applicable to original issue discount instruments),
than the principal amount hereof and (b) would be considered an original issue
discount security for United States federal income tax purposes, then the amount
payable on this Security in the event of redemption by the Company, repayment at
the option of the Holder or acceleration of the maturity hereof, in lieu of the
principal amount due at the Stated Maturity Date hereof, shall be the Amortized
Face Amount (as defined below) of this Security as of the date of such
redemption, repayment or acceleration. The "AMORTIZED FACE AMOUNT" of this
Security shall be the amount equal to the sum of (a) the Issue Price (as set
forth on the face hereof) plus (b) the aggregate of the portions of the original
issue discount (the excess of the amounts considered as part of the "stated
redemption price at maturity" of this Security within the meaning of
Section 1273(a)(2) of the Internal Revenue Code of 1986, as amended (the
"CODE"), whether denominated as principal or interest, over the Issue Price of
this Security) which shall theretofore have accrued pursuant to Section 1272 of
the Code (without regard to Section 1272(a)(7) of the Code) from the date of
issue of this Security to the date of determination, minus (c) any amount
considered as part of the "stated redemption price at maturity" of this Security
which has been paid on this Security from the date of issue to the date of
determination.
Section 7. MODIFICATION AND WAIVERS; OBLIGATION OF THE COMPANY
ABSOLUTE. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series. Such
amendment may be effected 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 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, on behalf of the Holders of all
Outstanding Securities, to waive
<PAGE>
4
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 all Outstanding Securities of any series to waive on behalf
of all of the Holders of Securities of such series certain past defaults under
the Indenture and their consequences. Any such consent or waiver shall be
conclusive and binding upon the Holder of this Security and upon all future
Holders of this Security and of any Security 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 Security.
The Securities are unsecured and rank pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
No reference herein to the Indenture and no provision of this Security
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 Security at the times, place and rate, and in the
Currency herein prescribed.
Section 8. DEFEASANCE AND COVENANT DEFEASANCE. The Indenture
contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Security and (b) certain restrictive covenants and the
related defaults and Events of Default, upon compliance by the Company with
certain conditions set forth therein, which provisions apply to this Security,
unless otherwise specified on the face hereof.
Section 9. MINIMUM DENOMINATION. Unless otherwise provided on the
face hereof, this Security is issuable only in registered form without coupons
in denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000. If this Security is denominated in a Specified Currency
other than U.S. Dollars or is a Discount Security, this Security shall be
issuable in the denominations set forth on the face hereof.
Section 10. REGISTRATION OF TRANSFER. As provided in the Indenture
and subject to certain limitations herein and therein set forth, the transfer of
this Security is registrable in the Security Register upon surrender of this
Security for registration of transfer at a Place of Payment for the series of
Securities of which this Security forms a part, 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 his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of like authorized denominations and for the same aggregate principal amount,
will be issued to the designated transferee or transferees.
If the registered owner of this Security is the Depository (such a
Security being referred to as a "GLOBAL SECURITY"), and (i) the Depository is at
any time unwilling or unable to
<PAGE>
5
continue as depository and a successor depository is not appointed by the
Company within 90 days following notice to the Company or (ii) an Event of
Default occurs, the Company will issue Securities in certificated form in
exchange for this Global Security. In addition, the Company may at any time,
and in its sole discretion, determine not to have Securities represented by a
Global Security and, in such event, will issue Securities in certificated form
in exchange in whole for this Global Security. In any such instance, an owner
of a beneficial interest in this Global Security will be entitled to physical
delivery of Securities in certificated form equal in principal amount to such
beneficial interest and to have such Securities registered in its name.
Securities so issued in certificated form will be issued in denominations of
$1,000 (or such other Minimum Denomination specified on the face hereof) or any
amount in excess thereof which is an integral multiple of $1,000 (or such
Minimum Denomination) and will be issued in registered form only, without
coupons.
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 Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
Section 11. EVENTS OF DEFAULT. If an Event of Default with respect
to the Securities of the series of which this Security forms a part shall have
occurred and be continuing, the principal of this Security may be declared due
and payable in the manner and with the effect provided in the Indenture.
Section 12. DEFINED TERMS. All terms used in this Security which are
defined in the Indenture and are not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
Section 13. GOVERNING LAW. Unless otherwise specified on the face
hereof, this Security 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.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay this Security (or the portion thereof specified below), pursuant to its
terms, on the Optional Repayment Date first occurring after the date of receipt
of this Security as specified below (the "REPAYMENT DATE"), at a Repayment Price
equal to 100% of the principal amount thereof, together with interest thereon
accrued to the Repayment Date, to the undersigned at:
- -----------------------------------------
- -----------------------------------------
(Please Print or Type Name and Address of the Undersigned.)
FOR THIS OPTION TO ELECT REPAYMENT TO BE EFFECTIVE, THIS SECURITY WITH
THE OPTION TO ELECT REPAYMENT DULY COMPLETED MUST BE RECEIVED AT LEAST 30 BUT
NOT MORE THAN 45 DAYS PRIOR TO THE REPAYMENT DATE (OR, IF SUCH REPAYMENT DATE IS
NOT A BUSINESS DAY, THE NEXT SUCCEEDING BUSINESS DAY) BY THE COMPANY AT ITS
OFFICE OR AGENCY IN THE CITY OF NEW YORK, WHICH WILL BE LOCATED INITIALLY AT THE
OFFICE OF THE TRUSTEE AT 450 WEST 33RD STREET, NEW YORK, NEW YORK 10001-2697.
If less than the entire principal amount of this Security is to be
repaid, specify the portion thereof (which shall be $1,000 or an integral
multiple thereof) which is to be repaid: $ .
If less than the entire principal amount of the within Security is to
be repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount ($1,000 or any integral multiple of $1,000; PROVIDED that any
remaining principal amount of this Security shall not be less than the Minimum
Denomination): $ .
Dated:
----------
----------------------------
Note: The signature to this Option to Elect Repayment must
correspond with the name as written upon the face of this
Security in every particular without alterations or enlargement
or any change whatsoever.
<PAGE>
--------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ............Custodian............
(Cust.) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the above list.
--------------------------
FOR VALUE RECEIVED, the undersigned
hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------
| |
-------------------------------------------------------------------------------
Please print or type name and address, including zip code of assignee
- --------------------------------------------------------------------------------
the within Security of DEERE & COMPANY and all rights thereunder and does hereby
irrevocably constitute and appoint
- --------------------------------------------------------------------------------
Attorney to transfer the said Security on the books of the within-named Company,
with full power of substitution in the premises.
Dated
------------------------
SIGNATURE GUARANTEED:
-----------------------------------
- ------------------------------
-------------------------
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face of
the within Security in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
[FACE OF NOTE]
CUSIP NO.
REGISTERED FACE AMOUNT
PRINCIPAL AMOUNT
No. FX -
DEERE & COMPANY
MEDIUM-TERM NOTE, SERIES C
(SINGLE INDEXED NOTE)
(FIXED RATE)
Due from 9 Months to 30 Years from Date of Issue
If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "DEPOSITORY") or a nominee of the Depository, this
Security is a Global Security and the following two legends apply:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
<PAGE>
2
ISSUE PRICE: EXCHANGE RATE AGENT:
OPTION TO RECEIVE PAYMENTS IN
ORIGINAL ISSUE DATE: SPECIFIED CURRENCY OTHER THAN
U.S. DOLLARS: [ ] YES [ ] NO
STATED MATURITY DATE: INTEREST RATE:
INDEXED CURRENCY:
SPECIFIED CURRENCY:
United States Dollars: United States Dollars: [ ] YES [ ] NO
[ ] YES [ ] NO
Foreign Currency:
Foreign Currency:
PRINCIPAL FINANCIAL CENTER:
BASE EXCHANGE RATE: DEFEASANCE: [ ] YES [ ] NO
DETERMINATION AGENT: COVENANT DEFEASANCE: [ ] YES [ ] NO
REFERENCE DEALERS:
1. ___ TOTAL AMOUNT OF OID:
2. ___
3. ___
YIELD TO MATURITY:
INTEREST PAYMENT DATES IF OTHER
THAN MARCH 15 AND SEPTEMBER 15:
INITIAL ACCRUAL PERIOD OID:
REGULAR RECORD DATES IF OTHER
THAN MARCH 1 AND SEPTEMBER 1: OPTIONAL INTEREST RATE RESET:
[ ] YES [ ] NO
OPTIONAL REDEMPTION: [ ] YES [ ] NO OPTIONAL INTEREST RATE RESET DATES:
INITIAL REDEMPTION DATE:
INITIAL REDEMPTION PERCENTAGE:
ANNUAL REDEMPTION PERCENTAGE
REDUCTION:
OTHER/DIFFERENT PROVISIONS:
SINKING FUND:
OPTION TO ELECT REPAYMENT:
[ ] YES [ ] NO
OPTIONAL REPAYMENT DATE[S]:
MINIMUM DENOMINATIONS:
[ ] $100,000
[ ] $25,000
[ ] Other:
ADDITIONAL AMOUNTS:
<PAGE>
3
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, in the Specified Currency on the
Stated Maturity Date shown above (except to the extent redeemed or repaid prior
to the Stated Maturity Date), the principal sum of _______, plus or minus an
amount determined by the Determination Agent (as defined below) in accordance
with the formula set forth below, and to pay interest on the Face Amount as
described below and on the reverse hereof.
If the Spot Rate exceeds or equals the Base Exchange Rate, the
principal amount of this Security payable on the Maturity Date (as defined
below) shall equal:
Face Amount + (Face Amount x Spot Rate - Base Exchange Rate}
------------------------------
Spot Rate
If the Base Exchange Rate exceeds the Spot Rate, the principal amount
of this Security payable on the Maturity Date shall equal:
Face Amount - (Face Amount x Base Exchange Rate - Spot Rate)
------------------------------
Spot Rate
; PROVIDED, HOWEVER, that in no event shall such principal amount be less than
zero.
In making the above calculations, the (i) "BASE EXCHANGE RATE" is the
exchange rate specified as such above and (ii) "SPOT RATE" is the rate at which
the Specified Currency can be exchanged for the Indexed Currency (such rate
stated as units of Indexed Currency per unit of the Specified Currency) as
determined on the second Exchange Rate Day prior to the Maturity Date (the
"DETERMINATION DATE") by the Determination Agent based upon the arithmetic mean
of the open market spot offer quotations for such Indexed Currency (spot bid
quotations for the Specified Currency) obtained by the Determination Agent from
the Reference Dealers in The City of New York at 11:00 A.M., New York City time,
on the Determination Date, for an amount of Indexed Currency equal to the Face
Amount of this Security multiplied by the Base Exchange Rate, in terms of the
Specified Currency for settlement on the Maturity Date. If such quotations from
the Reference Dealers are not
<PAGE>
4
available on the Determination Date due to circumstances beyond the control of
the Company or the Determination Agent, the Spot Rate will be determined on the
basis of the most recently available quotations from the Reference Dealers. If
any of the Reference Banks shall be unwilling or unable to provide the requested
quotations, the Company may select other major money center bank or banks in The
City of New York, in consultation with the Determination Agent, to act as
Reference Dealer or Dealers in replacement therefor. In the absence of manifest
error, the determination by the Determination Agent of the Spot Rate and the
principal amount of this Security payable on the Maturity Date shall be final
and binding on the Company and the Holder (as defined below) of this Security.
The Company shall pay interest on the Face Amount hereof at the
Interest Rate shown above from the Original Issue Date shown above or from
the most recent Interest Payment Date to which interest has been paid or duly
provided for, semi-annually on March 15 and September 15 of each year (unless
other Interest Payment Dates are shown on the face hereof) (each, an
"INTEREST PAYMENT DATE") until the principal hereof is paid or made available
for payment and on the Stated Maturity Date, any Redemption Date or Repayment
Date (such terms are together hereinafter referred to as the "MATURITY DATE"
with respect to the principal repayable on such date); PROVIDED, HOWEVER,
that any payment of principal (or premium, if any) or interest, if any, to be
made on any Interest Payment Date or on the Maturity Date that is not a
Business Day (as defined below) shall be made on the next succeeding Business
Day with the same force and effect as if made on such Interest Payment Date
or the Maturity Date, as the case may be, and no additional interest shall
accrue on the amount so payable as a result of such delayed payment. For
purposes of this Security, unless otherwise specified on the face hereof,
"BUSINESS DAY" means any day that is not a Saturday or Sunday and that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New
York; PROVIDED, HOWEVER, that, if the Specified Currency from above is a
foreign currency, such day is also not a day on which commercial banks are
authorized or required by law, regulation or executive order to close in the
Principal Financial Center (as defined) of the country issuing the Specified
Currency (or, if the Specified Currency is the euro, such day is also a day
on which the Trans-European Automated Real-Time Gross Settlement Express
Transfer (TARGET) System is open). "PRINCIPAL FINANCIAL CENTER" means the
capital city of the country issuing the Specified Currency except that with
respect to United States dollars, Australian dollars, Canadian dollars,
Deutsche marks, Dutch guilders, South African rand and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Sydney and
(solely in the case of the Specified Currency) Melbourne, Toronto, Frankfurt,
Amsterdam, Johannesburg and Zurich, respectively.
Interest hereon is accrued from, and including, the immediately
preceding Interest Payment Date in respect of which interest has been paid or
duly provided for (or from, and including, the Original Issue Date if no
interest has been paid) to, but excluding, the succeeding Interest Payment Date
or the Maturity Date, as the case may be. The interest so
<PAGE>
5
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture and subject to certain exceptions described
herein (referred to on the reverse hereof), be paid to the person (the "HOLDER")
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the March 1 or September 1 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date (unless other Regular Record Dates are specified on the face hereof) (each,
a "REGULAR RECORD DATE"); PROVIDED, HOWEVER, that, if this Security was issued
between a Regular Record Date and the initial Interest Payment Date relating to
such Regular Record Date, interest for the period beginning on the Original
Issue Date and ending on such initial Interest Payment Date shall be paid on the
Interest Payment Date following the next succeeding Regular Record Date to the
Holder hereof on such next succeeding Regular Record Date; and PROVIDED FURTHER
that interest payable on the Maturity Date will be payable to the person to whom
the principal hereof shall be payable. Any such interest not so punctually paid
or duly provided for on any Interest Payment Date other than the Maturity Date
("DEFAULTED INTEREST") will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a special record date (the "SPECIAL RECORD DATE") for the payment of
such Defaulted Interest to be fixed by the Trustee (referred to on the reverse
hereof), notice whereof shall be given to the Holder of this Security not less
than ten days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, all as more fully provided in the Indenture.
Unless otherwise specified above, all payments in respect of this
Security will be made in U.S. dollars regardless of the Specified Currency shown
above unless the Holder hereof makes the election described below. If the
Specified Currency shown above is other than U.S. dollars, the Exchange Rate
Agent (referred to on the reverse hereof) will arrange to convert any such
amounts so payable in respect hereof into U.S. dollars in the manner described
on the reverse hereof; PROVIDED, HOWEVER, that the Holder hereof may, if so
indicated above, elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Security in such
Specified Currency by delivery of a written request to the corporate trust
office of the Trustee, on or prior to the applicable Regular Record Date or at
least sixteen days prior to the Maturity Date, as the case may be. Such request
may be in writing (mailed or hand delivered) or by cable, telex or other form of
facsimile transmission. The Holder hereof may elect to receive payment in such
Specified Currency for all principal, premium, if any, and interest, if any,
payments and need not file a separate election for each payment. Such election
will remain in effect until revoked by written notice to the Trustee, but
written notice of any such revocation must be received by the Trustee on or
prior to the applicable Regular Record Date or at least fifteen days prior to
the Maturity Date, as the case may be.
<PAGE>
6
Notwithstanding the foregoing, if the Company determines that the
Specified Currency is not available for making payments in respect hereof due to
the imposition of exchange controls or other circumstances beyond the Company's
control, or is no longer used by the government of the country issuing such
currency or for the settlement of transactions by public institutions of or
within the international banking community, then the Holder hereof may not so
elect to receive payments in the Specified Currency and any such outstanding
election shall be automatically suspended, until the Company determines that the
Specified Currency is again available for making such payments.
In the event of an official redenomination of the Specified Currency,
the obligations of the Company with respect to payments on this Security shall
be deemed, immediately following such redenomination, to provide for payment of
that amount of redenominated currency representing the amount of such
obligations immediately before such redenomination. Except as set forth above,
in no event shall any adjustment be made to any amount payable hereunder as a
result of any change in the value of the Specified Currency shown above relative
to any other currency due solely to fluctuations in exchange rates.
Until this Security is paid in full or payment therefor in full is
duly provided for, the Company will at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in The City of New York (which, unless
otherwise specified above, shall be the "PLACE OF PAYMENT"). The Company has
initially appointed The Chase Manhattan Bank, at its office in The City of New
York as Paying Agent.
Unless otherwise shown above, payment of interest on this Security
(other than on the Maturity Date) will be made by check mailed to the registered
address of the Holder hereof; PROVIDED, HOWEVER, that, if (i) the Specified
Currency is U.S. dollars and this is a Global Security or (ii) the Specified
Currency is a Foreign Currency, and the Holder has elected to receive payments
in such Specified Currency as provided for above, such interest payments will be
made by transfer of immediately available funds, but only if appropriate
instructions have been received in writing by the Trustee on or prior to the
applicable Regular Record Date. Simultaneously with any election by the Holder
hereof to receive payments in respect hereof in the Specified Currency (if other
than U.S. dollars), such Holder may provide appropriate instructions to the
Trustee, and all such payments will be made in immediately available funds to an
account maintained by the payee with a bank, but only if such bank has
appropriate facilities therefor. Unless otherwise specified above, the
principal hereof (and premium, if any) and interest hereon payable on the
Maturity Date will be paid in immediately available funds upon surrender of this
Security at the office of the Trustee maintained for that purpose in the Borough
of Manhattan, The City and State of New York (or at such other location as may
be specified above). The Company will pay any administrative costs imposed by
banks in making payments in immediately available funds but, except as otherwise
provided under Additional Amounts above, any tax, assessment or governmental
charge imposed upon
<PAGE>
payments will be borne by the Holders of the Securities in respect of which such
payments are made.
Interest on this Security, if any, will be computed on the basis of a
360-day year of twelve 30-day months.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security 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.
DEERE & COMPANY
By:
----------------------------------
Authorized Officer
Attest:
------------------------------
Secretary
Dated: 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,
as Trustee
By:
---------------------------------
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
DEERE & COMPANY
MEDIUM-TERM NOTE, SERIES C
Section 1. GENERAL. This Security is one of a duly authorized issue
of securities (herein called the "SECURITIES") of the Company, issued and to be
issued in one or more series under an indenture, dated as of July 1, 1994, as
it may be supplemented from time to time (herein called the "INDENTURE"),
between the Company and The Chase Manhattan Bank (successor by merger to The
Chase Manhattan Bank (National Association)), Trustee (herein called the
"TRUSTEE", which term includes any successor trustee under the Indenture with
respect to a series of which this Security 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. This
Security is one of the series designated on the face hereof which is unlimited
in aggregate principal amount.
Section 2. PAYMENTS. If the Specified Currency is other than U.S.
dollars and the Holder hereof fails to elect payment in such Specified Currency,
the amount of U.S. dollar payments to be made in respect hereof will be
determined by the Exchange Rate Agent specified on the face hereof or a
successor thereto (the "EXCHANGE RATE AGENT") based on the highest bid quotation
in The City of New York at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date by the Exchange Rate
Agent from three recognized foreign exchange dealers (one of whom may be the
Exchange Rate Agent) selected by the Exchange Rate Agent and approved by the
Company for the purchase by the quoting dealer of the Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all holders of Securities scheduled to receive
U.S. dollar payments and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available, payments will be made
in the Specified Currency. All currency exchange costs will be borne by the
holder of the Securities by deductions from such payments.
Except as set forth below, if the Specified Currency is other than
U.S. dollars and the Specified Currency is not available due to the imposition
of exchange controls or to other circumstances beyond the Company's control, the
Company will be entitled to satisfy its obligations to the Holder of this
Security by making such payment in U.S. dollars on the basis of the noon buying
rate in The City of New York for cable transfers of such Specified Currency as
certified for customs purposes (or, if not so certified, as otherwise
determined) by the Federal Reserve Bank of New York (the "MARKET EXCHANGE RATE")
for such Specified Currency as computed by the Exchange Rate Agent on the second
Business Day prior to the applicable payment date or, if the Market Exchange
Rate is then not available, on the basis of the most recently available Market
Exchange Rate or as otherwise indicated above.
<PAGE>
2
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion (except to the extent expressly provided that
any determination is subject to approval by the Company) and, in the absence of
manifest error, shall be conclusive for all purposes and binding on the Holder
of this Security, and the Exchange Rate Agent shall have no liability therefor.
All currency exchange costs will be borne by the Company unless the
Holder of this Security has made the election to receive payments in the
Specified Currency. In that case, the Holder shall bear its pro rata portion of
currency exchange costs, if any, by deductions from payments otherwise due to
such Holder.
References herein to "U.S. DOLLARS" or "U.S. $" or "$" are to the
currency of the United States of America.
Section 3. REDEMPTION. If so specified on the face hereof, the
Company may at its option redeem this Security in whole or from time to time in
part in increments equal to the minimum authorized denomination (provided that
any remaining principal amount of this Security shall not be less than the
minimum authorized denomination hereof) on or after the date designated as the
Initial Redemption Date on the face hereof at 100% of the unpaid principal
amount hereof or the portion thereof redeemed (or, if this Security is a
Discount Security, such lesser amount as is provided for below) multiplied by
the Initial Redemption Percentage specified on the face hereof, together with
accrued interest to the Redemption Date. Such Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by an amount
equal to the Annual Redemption Percentage Reduction until the redemption price
is 100% of such amount. The Company may exercise such option by causing the
Trustee to mail a notice of such redemption at least 30 but not more than 60
days prior to the Redemption Date. In the event of redemption of this Security
in part only, a new Security or Securities for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation hereof.
If less than all of the Securities with like tenor and terms to this Security
are to be redeemed, the Securities to be redeemed shall be selected by the
Trustee by such method as the Trustee shall deem fair and appropriate. However,
if less than all the Securities of the series, of which this Security is a part,
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.
Section 4. REPAYMENT. If so specified on the face hereof, this
Security shall be repayable prior to the Stated Maturity Date at the option of
the Holder on each applicable Optional Repayment Date shown on the face hereof
at a repayment price equal to 100% of the principal amount to be repaid,
together with accrued interest to the Repayment Date. In order for this
Security to be repaid, the Trustee must receive at least 30 but not more than 60
days
<PAGE>
3
prior to an Optional Repayment Date, this Security with the form attached hereto
entitled "OPTION TO ELECT REPAYMENT" duly completed. Any tender of this
Security for repayment shall be irrevocable. The repayment option may be
exercised by the Holder of this Security in whole or in part in increments of
$1,000 (provided that any remaining principal amount of this Security shall not
be less than the minimum authorized denomination hereof). Upon any partial
repayment, this Security shall be canceled and a new Security or Securities for
the remaining principal amount hereof shall be issued in the name of the Holder
of this Security.
Section 5. SINKING FUND. Unless otherwise specified on the face
hereof, this Security will not be subject to any sinking fund.
Section 6. DISCOUNT SECURITIES. If this Security, (such a Security
being referred to as a "DISCOUNT SECURITY") (a) has been issued at an Issue
Price lower, by more than a DE MINIMIS amount (as determined under United States
federal income tax rules applicable to original issue discount instruments),
than the principal amount hereof and (b) would be considered an original issue
discount security for United States federal income tax purposes, then the amount
payable on this Security in the event of redemption by the Company, repayment at
the option of the Holder or acceleration of the maturity hereof, in lieu of the
principal amount due at the Stated Maturity Date hereof, shall be the Amortized
Face Amount (as defined below) of this Security as of the date of such
redemption, repayment or acceleration. The "AMORTIZED FACE AMOUNT" of this
Security shall be the amount equal to the sum of (a) the Issue Price (as set
forth on the face hereof) plus (b) the aggregate of the portions of the original
issue discount (the excess of the amounts considered as part of the "stated
redemption price at maturity" of this Security within the meaning of
Section 1273(a)(2) of the Internal Revenue Code of 1986, as amended (the
"CODE"), whether denominated as principal or interest, over the Issue Price of
this Security) which shall theretofore have accrued pursuant to Section 1272 of
the Code (without regard to Section 1272(a)(7) of the Code) from the date of
issue of this Security to the date of determination, minus (c) any amount
considered as part of the "stated redemption price at maturity" of this Security
which has been paid on this Security from the date of issue to the date of
determination.
Section 7. MODIFICATION AND WAIVERS; OBLIGATION OF THE COMPANY
ABSOLUTE. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series. Such
amendment may be effected 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 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, on behalf of the Holders of all
Outstanding Securities, 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 all
<PAGE>
4
Outstanding Securities of any series to waive on behalf of all of the Holders of
Securities of such series certain past defaults under the Indenture and their
consequences. Any such consent or waiver shall be conclusive and binding upon
the Holder of this Security and upon all future Holders of this Security and of
any Security 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 Security.
The Securities are unsecured and rank PARI PASSU with all other
unsecured and unsubordinated indebtedness of the Company.
No reference herein to the Indenture and no provision of this Security
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 Security at the times, place and rate, and in the
Currency herein prescribed.
Section 8. DEFEASANCE AND COVENANT DEFEASANCE. The Indenture
contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Security and (b) certain restrictive covenants and the
related defaults and Events of Default, upon compliance by the Company with
certain conditions set forth therein, which provisions apply to this Security,
unless otherwise specified on the face hereof.
Section 9. AUTHORIZED DENOMINATIONS. Unless otherwise provided on
the face hereof, this Security is issuable only in registered form without
coupons in denominations of (i) if this Security is a Global Security (as
defined below), $100,000 or any amount in excess thereof which is an integral
multiple of $1,000 or (ii) if this Security is not a Global Security, in
denominations of $25,000 or any amount in excess thereof which is an integral
multiple of $1,000. If this Security is denominated in a Specified Currency
other than U.S. Dollars or is a Discount Security, this Security shall be
issuable in the denominations set forth on the face hereof.
Section 10. REGISTRATION OF TRANSFER. As provided in the Indenture
and subject to certain limitations herein and therein set forth, the transfer of
this Security is registrable in the Security Register upon surrender of this
Security for registration of transfer at a Place of Payment for the series of
Securities of which this Security forms a part, 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 his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
<PAGE>
5
If the registered owner of this Security is the Depository (such a
Security being referred to as a "GLOBAL SECURITY"), and (i) 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 following notice to
the Company, or (ii) an Event of Default occurs, the Company will issue
Securities in certificated form in exchange for this Global Security. In
addition, the Company may at any time, and in its sole discretion, determine not
to have Securities represented by a Global Security and, in such event, will
issue Securities in certificated form in exchange in whole for this Global
Security. In any such instance, an owner of a beneficial interest in this
Global Security will be entitled to physical delivery in certificated form of
Securities equal in principal amount to such beneficial interest and to have
such Securities registered in its name. Securities so issued in certificated
form will be issued in denominations of $25,000 (or such other denomination as
shall be specified by the Company) or any amount in excess thereof which is an
integral multiple of $1,000 and will be issued in registered form only, without
coupons.
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 Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
Section 11. EVENTS OF DEFAULT. If an Event of Default with respect
to the Securities of the series of which this Security forms a part shall have
occurred and be continuing, the principal of this Security may be declared due
and payable in the manner and with the effect provided in the Indenture.
Section 12. DEFINED TERMS. All terms used in this Security which are
defined in the Indenture and are not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
Section 13. GOVERNING LAW. Unless otherwise specified on the face
hereof, this Security 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.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay this Security (or the portion thereof specified below), pursuant to its
terms, on the Optional Repayment Date first occurring after the date of receipt
of the within Security as specified below (the "REPAYMENT DATE"), at a Repayment
Price equal to 100% of the principal amount thereof, together with interest
thereon accrued to the Repayment Date, to the undersigned at:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print or Type Name and Address of the Undersigned.)
FOR THIS OPTION TO ELECT REPAYMENT TO BE EFFECTIVE, THIS SECURITY WITH
THE OPTION TO ELECT REPAYMENT DULY COMPLETED MUST BE RECEIVED AT LEAST 30 BUT
NOT MORE THAN 45 DAYS PRIOR TO THE REPAYMENT DATE (OR, IF SUCH REPAYMENT DATE IS
NOT A BUSINESS DAY, THE NEXT SUCCEEDING BUSINESS DAY) BY THE COMPANY AT ITS
OFFICE OR AGENCY IN THE CITY OF NEW YORK, WHICH WILL BE LOCATED INITIALLY AT THE
OFFICE OF THE TRUSTEE AT 450 WEST 33RD STREET, NEW YORK, NEW YORK 10001-2697.
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be $1,000 or an integral
multiple thereof) which is to be repaid: $ .
If less than the entire principal amount of the within Security is to
be repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount ($1,000 or any integral multiple of $1,000; PROVIDED that any
remaining principal amount of this Security shall not be less than the minimum
denomination of such Security): $ .
Dated:
---------
------------------------
Note: The signature to this Option to Elect Repayment must
correspond with the name as written upon the face of the
within Security in every particular without alterations or
enlargement or any change whatsoever.
<PAGE>
--------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ............Custodian............
(Cust.) (Minor)
Under Uniform Gifts to Minors Act
...........................
(State)
Additional abbreviations may also be used though not in the above list.
--------------------
FOR VALUE RECEIVED, the undersigned
hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- --------------------------------------
| |
- -------------------------------------------------------------------------------
Please print or type name and address, including zip code of assignee
- -------------------------------------------------------------------------------
the within Security of DEERE & COMPANY and all rights thereunder and does hereby
irrevocably constitute and appoint
- -------------------------------------------------------------------------------
Attorney to transfer the said Security on the books of the within-named Company,
with full power of substitution in the premises.
Dated
------------------------
SIGNATURE GUARANTEED:
-------------------------------
- ------------------------------
-------------------------
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face of
the within Security in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
[FACE OF NOTE]
CUSIP NO.
REGISTERED
PRINCIPAL AMOUNT
No. FL -
DEERE & COMPANY
MEDIUM-TERM NOTE, SERIES C,
Due from 9 Months to 30 Years from Date of Issue
(FLOATING RATE)
If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "DEPOSITORY") or a nominee of the Depository, this
Security is a Global Security and the following two legends apply:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
<PAGE>
2
ISSUE PRICE: OPTION TO ELECT REPAYMENT:
[ ] YES [ ] NO
ORIGINAL ISSUE DATE: OPTIONAL REPAYMENT DATE[S]:
STATED MATURITY DATE: OPTIONAL REDEMPTION:
[ ] YES [ ] NO
BASE RATE: INITIAL REDEMPTION DATE:
If LIBOR: [ ] LIBOR Telerate
[ ] LIBOR Reuters
[ ] Other INITIAL REDEMPTION PERCENTAGE:
Designated LIBOR Page:
Designated LIBOR Currency:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index:
INITIAL INTEREST RATE: ANNUAL REDEMPTION PERCENTAGE
REDUCTION:
INDEX MATURITY: MINIMUM DENOMINATION:
[ ] $1,000
[ ] Other:
SPREAD (PLUS OR MINUS): SPECIFIED CURRENCY:
United States Dollars:
[ ] YES [ ] NO
SPREAD MULTIPLIER: Foreign Currency:
CALCULATION AGENT: OPTION TO RECEIVE PAYMENTS
IN SPECIFIED CURRENCY
OTHER THAN U.S. DOLLARS:
[ ] YES [ ] NO
CALCULATION DATE: EXCHANGE RATE AGENT;
SINKING FUND: REFERENCE BANKS:
MAXIMUM INTEREST RATE: ADDITIONAL AMOUNTS:
MINIMUM INTEREST RATE: DEFEASANCE: [ ] YES [ ] NO
INTEREST DETERMINATION DATE: COVENANT DEFEASANCE:
[ ] YES [ ] NO
INTEREST RESET PERIOD: OTHER/DIFFERENT PROVISIONS:
INTEREST RESET DATES:
INTEREST PAYMENT PERIOD:
INTEREST PAYMENT DATES:
TOTAL AMOUNT OF OID:
INITIAL ACCRUAL PERIOD OID:
YIELD TO MATURITY:
OPTIONAL INTEREST RATE RESET:
[ ] YES [ ] NO
OPTIONAL INTEREST RATE RESET DATES:
<PAGE>
3
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
on the Stated Maturity Date shown above (except to the extent
redeemed or repaid prior to the Stated Maturity Date) and to pay interest
thereon at the Initial Interest Rate shown above from the Original Issue Date
shown above until the first Interest Reset Date shown above following the
Original Issue Date (if the first Interest Reset Date is later than the Original
Issue Date) and thereafter at the interest rate determined by reference to the
Base Rate shown above, plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, shown above, or determined by reference to such other
formula or adjusted in such other manner, in each case calculated in accordance
with the provisions on the reverse hereof, until the principal hereof is paid or
duly made available for payment. The Company will pay interest on each Interest
Payment Date, if any, specified above, commencing with the first Interest
Payment Date next succeeding the Original Issue Date, and on the Stated Maturity
Date, any Redemption Date or Repayment Date (each such date being hereinafter
referred to as the "MATURITY DATE" with respect to the principal repayable on
such date); PROVIDED, HOWEVER, that any payment of principal (or premium, if
any) or interest, if any, to be made on any Interest Payment Date or on the
Maturity Date that is not a Business Day (as defined below) shall be made on the
next succeeding Business Day (except that if the Base Rate specified above is
LIBOR, and such day falls in the next succeeding calendar month, such payment
will be made on the next preceding Business Day) as described on the reverse
hereof. For purposes of this Security, unless otherwise specified on the face
hereof, "BUSINESS DAY" means any day that is not a Saturday or Sunday and that
is neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York;
PROVIDED, HOWEVER, that, if the Specified Currency shown above is a Foreign
Currency, such day is also not a day on which commercial banks are authorized or
required by law, regulation or executive order to close in the Principal
Financial Center (as defined) of the country issuing the Specified Currency (or,
if the Specified Currency is the euro, such day is also a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open); PROVIDED, FURTHER, that, with respect to Securities as to which
LIBOR is an applicable Base Rate, such day is also a London Business Day.
"LONDON BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in the LIBOR Currency (as defined below) ) in
London. "PRINCIPAL FINANCIAL CENTER" means (i) the capital city of the country
issuing the Specified Currency or (ii) the capital city of the country to which
the LIBOR Currency relates, as applicable, except, in the case of (i) or (ii)
above, that with respect to United States dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch
<PAGE>
4
guilders, Portuguese escudos, South African rand and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Sydney and (solely
in the case of the Specified Currency) Melbourne, Toronto, Frankfurt, Amsterdam,
London (solely in the case of the LIBOR Currency), Johannesburg and Zurich,
respectively.
Interest on this Security will accrue from, and including, the
immediately preceding Interest Payment Date to which interest has been paid or
duly provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the applicable
Interest Payment Date or the Maturity Date, as the case may be (each an
"Interest Period"). The interest, if any, so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture and subject to certain exceptions described herein (referred to on the
reverse hereof), be paid to the person (the "HOLDER") in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the fifteenth day (whether or not a Business Day) next preceding
such Interest Payment Date (a "REGULAR RECORD DATE"); PROVIDED, HOWEVER, that,
if this Security was issued between a Regular Record Date and the initial
Interest Payment Date relating to such Regular Record Date, interest, if any,
for the period beginning on the Original Issue Date and ending on such initial
Interest Payment Date shall be paid on the Interest Payment Date following the
next succeeding Regular Record Date to the Holder hereof on such Regular Record
Date; and PROVIDED FURTHER that interest, if any, payable on the Maturity Date
will be payable to the person to whom the principal hereof shall be payable.
Any such interest not so punctually paid or duly provided for on any Interest
Payment Date other than the Maturity Date ("DEFAULTED INTEREST") will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a special record date (the
"SPECIAL RECORD DATE") for the payment of such Defaulted Interest to be fixed by
the Trustee (referred to on the reverse hereof), notice whereof shall be given
to the Holder of this Security not less than ten days prior to such Special
Record Date, or may be paid at any time in any other lawful manner, all as more
fully provided in the Indenture.
Unless otherwise specified above, all payments in respect of this
Security will be made in U.S. dollars regardless of the Specified Currency shown
above unless the Holder hereof makes the election described below. If the
Specified Currency shown above is other than U.S. dollars, the Exchange Rate
Agent (referred to on the reverse hereof) will arrange to convert any such
amounts so payable in respect hereof into U.S. dollars in the manner described
on the reverse hereof; PROVIDED, HOWEVER, that the Holder hereof may, if so
indicated above, elect to receive all or a specified portion of any payment of
principal, premium, if any, and/or interest in respect of this Security in such
Specified Currency by delivery of a written request to the corporate trust
office of the Trustee in The City of New York, on or prior to the applicable
Regular Record Date or at least fifteen days prior to the Maturity Date, as the
case may be. Such request may be in writing (mailed or hand delivered)
<PAGE>
5
or by cable, telex or other form of facsimile transmission. The Holder hereof
may elect to receive payment in such Specified Currency for all principal and
interest payments and need not file a separate election for each payment. Such
election will remain in effect until revoked by written notice to the Trustee,
but written notice of any such revocation must be received by the Trustee on or
prior to the Regular Record Date or at least fifteen days prior to the Maturity
Date, as the case may be.
In the event of an official redenomination of the Specified Currency,
the obligations of the Company with respect to payments on this Security shall,
in all cases, be deemed immediately following such redenomination to provide for
payment of that amount of redenominated currency representing the amount of such
obligations immediately before such redenomination. In no event shall any
adjustment be made to any amount payable hereunder as a result of any change in
the value of the Specified Currency shown above relative to any other currency
due solely to fluctuations in exchange rates.
Until this Security is paid in full or payment therefor in full is
duly provided for, the Company will at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in The City of New York (which, unless
otherwise specified above, shall be the "Place of Payment"). The Company has
initially appointed The Chase Manhattan Bank at its office in The City of New
York as Paying Agent.
Unless otherwise shown above, payment of interest on this Security
(other than on the Maturity Date) will be made by check mailed to the registered
address of the Holder hereof; PROVIDED, HOWEVER, that, if (i) the Specified
Currency is U.S. dollars and this is a Global Security or (ii) the Specified
Currency is a Foreign Currency and the Holder has elected to receive payments in
such Specified Currency as provided for above, such interest payments will be
made by transfer of immediately available funds, but only if appropriate
instructions have been received in writing by the Trustee on or prior to the
applicable Regular Record Date. Simultaneously with any election by the Holder
hereof to receive payments in respect hereof in the Specified Currency (if other
than U.S. dollars), such Holder may provide appropriate instructions to the
Trustee, and all such payments will be made in immediately available funds to an
account maintained by the payee with a bank, but only if such bank has
appropriate facilities therefor. Unless otherwise specified above, the
principal hereof (and premium, if any) and interest hereon payable on the
Maturity Date will be paid in immediately available funds upon surrender of this
Security at the office of the Trustee maintained for that purpose in the Borough
of Manhattan, The City and State of New York (or at such other location as may
be specified above). The Company will pay any administrative costs imposed by
banks in making payments in immediately available funds but, except as otherwise
provided under Additional Amounts above, any tax, assessment or governmental
charge imposed upon payments will be borne by the Holders of the Securities in
respect of which such payments are made.
<PAGE>
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security 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.
DEERE & COMPANY
By:
----------------------------------
Authorized Officer
Attest:
------------------------------
Secretary
Dated: 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,
as Trustee
By:
----------------------------------
Authorized Officer
<PAGE>
[REVERSE OF NOTE]
DEERE & COMPANY
MEDIUM-TERM NOTE, SERIES C
Section 1. GENERAL. This Security is one of a duly authorized issue
of securities (herein called the "SECURITIES") of the Company, issued and to be
issued in one or more series under an indenture, dated as of July 1, 1994, as
it may be supplemented from time to time (herein called the "INDENTURE"),
between the Company and The Chase Manhattan Bank (successor by merger to The
Chase Manhattan Bank (National Association)), Trustee (herein called the
"TRUSTEE", which term includes any successor trustee under the Indenture with
respect to a series of which this Security 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. This
Security is one of the series designated on the face hereof which is unlimited
in aggregate principal amount.
Section 2. PAYMENTS. If the Specified Currency is other than U.S.
dollars and the Holder hereof fails to elect payment in such Specified Currency,
the amount of U.S. dollar payments to be made in respect hereof will be
determined by the Exchange Rate Agent specified on the face hereof or a
successor thereto (the "EXCHANGE RATE AGENT") based on the highest bid quotation
in The City of New York at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date by the Exchange Rate
Agent for the purchase by the Exchange Rate Agent of the Specified Currency for
U.S. dollars from three recognized foreign exchange dealers (one of whom may be
the Exchange Rate Agent selected by the Exchange Rate Agent and approved by the
Company for the purchase by the quoting dealer of the Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all Holders of Securities scheduled to receive
U.S. dollar payments and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available, payments will be made
in the Specified Currency. All currency exchange costs will be borne by the
Holder of the Securities by deductions from such payments.
Except as set forth below, if the Specified Currency is other than
U.S. dollars and the Specified Currency is not available due to the imposition
of exchange controls or to other circumstances beyond the Company's control, the
Company will be entitled to satisfy its obligations to the Holder of this
Security by making such payment in U.S. dollars on the basis of the noon buying
rate in The City of New York for cable transfers of such Specified Currency as
certified for customs purposes (or, if not so certified as otherwise determined)
by the Federal Reserve Bank of New York (the "MARKET EXCHANGE RATE") for such
Specified Currency as computed by the Exchange Rate Agent on the second Business
Day prior to the
<PAGE>
2
applicable payment date or, if the Market Exchange Rate is then not available,
on the basis of the most recently available Market Exchange Rate or as otherwise
indicated above.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion (except to the extent expressly provided that
any determination is subject to approval by the Company) and, in the absence of
manifest error, shall be conclusive for all purposes and binding on the Holder
of this Security and the Exchange Rate Agent shall have no liability therefor.
All currency exchange costs will be borne by the Company unless the
Holder of this Security has made the election to receive payments in the
Specified Currency. In that case, the Holder shall bear its pro rata portion of
currency exchange costs, if any, by deductions from payments otherwise due to
such Holder.
Section 3. INTEREST RATE CALCULATIONS. Unless otherwise set forth on
the face hereof, the following provisions of this Section 3 shall apply to the
calculation of interest on this Security. If the first Interest Reset Date is
later than the Original Issue Date, this Security will bear interest from its
Original Issue Date to the first Interest Reset Date at the Initial Interest
Rate set forth on the face hereof. Thereafter, the interest rate hereon for
each Interest Reset Period (as defined below) will be determined by reference to
the Base Rate set forth on the face hereof, as adjusted by the Spread, the
Spread Multiplier or other formula, if any, set forth on the face hereof.
As set forth on the face hereof, this Security may also have either or
both of the following: (i) a maximum limitation, or ceiling, on the rate at
which interest may accrue during any Interest Period (as defined below)
("MAXIMUM INTEREST RATE"); and (ii) a minimum limitation, or floor, on the rate
at which interest may accrue during any Interest Period ("MINIMUM INTEREST
RATE"). In addition to any Maximum Interest Rate that may be set forth on the
face hereof, the interest rate on this Security will in no event be higher than
the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
The rate of interest hereon will be reset daily, weekly, monthly,
quarterly, semi-annually or annually or at another interval (each, an "INTEREST
RESET PERIOD"), as set forth on the face hereof. The date or dates on which
interest will be reset (each, an "INTEREST RESET DATE") will be, if this
Security resets (i) daily, each Business Day; (ii) weekly, the Wednesday of each
week (unless the Base Rate set forth on the face hereof is the Treasury Rate, in
which case the Tuesday of each week (except as provided below)); (iii) monthly,
the third Wednesday of each month; (iv) quarterly, the third Wednesday of March,
June, September and December of each year; (v) semi-annually, the third
Wednesday of each of the two months set forth on the face hereof; and (vi)
annually, the third Wednesday of the month of each year set forth on
<PAGE>
3
the face hereof; PROVIDED, HOWEVER, that if the first Interest Reset Date is
later than the Original Issue Date, the interest rate in effect from the
Original Issue Date to the first Interest Reset Date will be the Initial
Interest Rate as set forth on the face hereof. If the Base Rate set forth on
the face hereof is the Treasury Rate and a Treasury auction shall fall on the
Interest Reset Date for this Security, then such Interest Reset Date shall
instead be the first Business Day immediately following such Treasury auction.
If any Interest Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be postponed to the next succeeding Business Day,
except that, if the Base Rate set forth on the face hereof is LIBOR, if such
Business Day is in the next succeeding calendar month, such Interest Reset Date
shall be the immediately preceding Business Day.
The interest payable hereon on each Interest Payment Date and on
the Maturity Date shall be the amount of interest accrued from, and
including, the Original Issue Date or the next preceding Interest Payment
Date in respect of which interest, if any, has been paid or duly provided
for, as the case may be, to, but excluding, the next succeeding Interest
Payment Date or the Maturity Date, as the case may be; PROVIDED, HOWEVER,
that, if the interest rate is reset daily or weekly, interest payable on any
Interest Payment Date will be the amount of interest accrued from and
including the Original Issue Date or from but excluding the last Regular
Record Date through which interest has been paid to and including the Regular
Record Date immediately preceding such Interest Payment Date, except that
interest payable on the Maturity Date will include interest accrued to, but
excluding, the Maturity Date (each such period, an "INTEREST PERIOD"). If
the Maturity Date falls on a day which is not a Business Day, the payment of
principal, premium, if any, and interest, if any, with respect to the
Maturity Date will be paid on the next succeeding Business Day with the same
force and effect as if made on the Maturity Date, and no interest shall
accrue on the amount so payable as a result of such delayed payment. If an
Interest Payment Date other than the Maturity Date falls on a day that is not
a Business Day, such Interest Payment Date will be postponed to the next day
that is a Business Day and interest will accrue for the period of such
postponement (except if the Base Rate specified above is LIBOR, and such day
falls in the next succeeding calendar month, such Interest Payment Date will
be advanced to the immediately preceding Business Day), it being understood
that, to the extent this sentence is inconsistent with Section 112 of the
Indenture, the provisions of this sentence shall apply in lieu of such
Section.
Accrued interest will be calculated by multiplying the principal
amount hereof by an accrued interest factor. Such accrued interest factor will
be computed by adding the interest factor calculated for each day in the
Interest Period or from the last date from which accrued interest is being
calculated. The interest factor for each such day is computed by dividing the
interest rate applicable on such day by 360, if the Base Rate set forth on the
face hereof is the CD Rate, Commercial Paper Rate, Eleventh District Cost of
Funds Rate, Federal Funds Rate, Prime Rate or LIBOR (each as described below),
or by the actual number of days in the year, if the Base Rate set forth on the
face hereof is the Treasury Rate or the CMT Rate
<PAGE>
4
(each as described below). The interest rate applicable to any day that is an
Interest Reset Date is the interest rate as determined, in accordance with the
procedures hereinafter set forth, with respect to the Interest Determination
Date (as defined below) pertaining to such Interest Reset Date. The interest
rate applicable to any other day is the interest rate for the immediately
preceding Interest Reset Date (or, if none, the Initial Interest Rate, as set
forth on the face hereof).
All percentages resulting from any calculation with respect hereto
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded upward
(E.G., 7.123455% (or 0.07123455) being rounded to 7.12346% (or 0.0712346) and
7.123454% (or 0.07123454) being rounded to 7.12345% (or 0.0712345)), and all
currency amounts used in or resulting from such calculation will be rounded to
the nearest one-hundredth of a unit (with five one-thousandths of a unit being
rounded upwards).
Interest will be payable on, if this Security resets (i) daily, weekly
or monthly, the third Wednesday of each month; (ii) quarterly, the third
Wednesday of March, June, September and December of each year; (iii)
semi-annually, the third Wednesday of the two months set forth on the face
hereof; and (iv) annually, the third Wednesday of the month set forth on the
face hereof (each, an "INTEREST PAYMENT DATE"), and in each case, on the
Maturity Date.
If the Base Rate set forth on the face hereof is the CD Rate, the CMT
Rate, the Commercial Paper Rate, the Federal Funds Rate or the Prime Rate, the
"INTEREST DETERMINATION DATE" pertaining to an Interest Reset Date for this
Security will be the second Business Day immediately preceding such Interest
Reset Date; if the Base Rate set forth on the face hereof is LIBOR, the
"INTEREST DETERMINATION DATE" pertaining to an Interest Reset Date for this
Security will be the second London Banking Day immediately preceding such
Interest Reset Date, unless the Designated LIBOR Currency is British pounds
sterling, in which case the "Interest Determination Date" will be such
Interest Reset Date; and if the Base Rate set forth on the face hereof is the
Treasury Rate, the "INTEREST DETERMINATION DATE" pertaining to an Interest Reset
Date for this Security will be the day of the week in which such Interest Reset
Date falls on which Treasury bills (as defined below) would normally be
auctioned. Treasury bills are usually sold at auction on Monday of each week,
unless that day is a legal holiday, in which case the auction is usually held on
the following Tuesday, except that sometimes such auction may be held on the
preceding Friday. If, as the result of a legal holiday, an auction is so held
on the preceding Friday, such Friday will be the Interest Determination Date
pertaining to the Interest Reset Date occurring in the next succeeding week.
If the Base Rate set forth on the face hereof is the Eleventh District
Cost of Funds Rate, the "INTEREST DETERMINATION DATE" pertaining to an Interest
Reset Date for this
<PAGE>
5
Security is the last Business Day of the month immediately preceding the
applicable Interest Reset Date in which the Federal Home Loan Bank of San
Francisco published the index.
Unless otherwise set forth on the face hereof, the "CALCULATION DATE",
where applicable, pertaining to an Interest Determination Date is the earlier of
(i) the tenth calendar day after such Interest Determination Date or, if any
such day is not a Business Day, the next succeeding Business Day and (ii) the
Business Day immediately preceding the applicable Interest Payment Date or the
Maturity Date, as the case may be.
The Company will appoint and enter into an agreement with an agent (a
"CALCULATION AGENT") to calculate the rate of interest on the Securities of this
series which bear interest at a floating rate. Unless otherwise set forth on
the face hereof, The Chase Manhattan Bank will be the Calculation Agent. At the
request of the Holder hereof, the Calculation Agent will provide the interest
rate then in effect and, if determined, the interest rate that will become
effective on the next Interest Reset Date.
Subject to applicable provisions of law and except as specified
herein, with respect to each Interest Determination Date, the rate of interest
shall be the rate determined by the Calculation Agent in accordance with the
provisions of the applicable heading below.
DETERMINATION OF CD RATE. If the Base Rate set forth on the face
hereof is the CD Rate, this Security will bear interest for each Interest
Reset Period at the interest rate calculated with reference to the CD Rate
and the Spread, Spread Multiplier or other formula, if any, set forth on the
face hereof. Unless otherwise set forth on the face hereof, the "CD RATE"
means, with respect to any Interest Determination Date pertaining thereto,
the rate on such date for negotiable certificates of deposit having the Index
Maturity set forth on the face hereof as published in H.15(519) (as defined
below), under the heading "CDS (SECONDARY MARKET)" or, if not yet published
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the CD Rate will be the rate on such Interest
Determination Date for negotiable certificates of deposit having the Index
Maturity set forth on the face hereof as published in H.15 Daily Update under
the caption "CDS (SECONDARY MARKET)". If by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date such rate
is not yet published in either H.15(519) or H.15 Daily Update, the CD Rate on
such Interest Determination Date will be calculated by the Calculation Agent
and will be the average of the secondary market offered rates as of 10:00
A.M., New York City time, on such Interest Determination Date, of three
leading non-bank dealers in negotiable U.S. dollar certificates of deposit in
The City of New York selected by the Calculation Agent (after consultation
with the Company) for negotiable certificates of deposit of major United
States money market banks of the highest credit standing (in the market for
negotiable certificates of deposit) having a remaining maturity closest to
the Index Maturity set forth on the face hereof in a denomination of U.S.
$5,000,000; PROVIDED, HOWEVER, that, if the dealers
<PAGE>
6
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the interest rate for the period commencing on the Interest Reset
Date following such Interest Determination Date will be the interest rate in
effect on such Interest Determination Date. "H.15(519)" means the weekly
statistical release designated as such, or any successor publication, published
by the Board of Governors of the Federal Reserve System. "H.15 DAILY UPDATE"
means the daily update of H.15(519), available through the world-wide-web site
of the Board of Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Base Rate set forth on
the face hereof is the Commercial Paper Rate, this Security will bear interest
for each Interest Reset Period at the interest rate calculated with reference to
the Commercial Paper Rate and the Spread, Spread Multiplier or other formula ,
if any, set forth on the face hereof. Unless otherwise set forth on the face
hereof, the "COMMERCIAL PAPER RATE" means, with respect to any Interest
Determination Date pertaining thereto, the Money Market Yield (calculated as
described below) of the rate on such date for commercial paper having the Index
Maturity set forth on the face hereof, as such rate shall be published in
H.15(519) under the caption "COMMERCIAL PAPER -- NONFINANCIAL" or, if not yet
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Commercial Paper Rate shall be the
Money Market Yield of the rate on such Interest Determination Date for
commercial paper having the Index Maturity set forth on the face hereof as
published in H.15 Daily Update under the caption "COMMERCIAL PAPER --
NONFINANCIAL". If by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date such rate is not yet published in
either H.15(519) or H.15 Daily Update, the Commercial Paper Rate on such
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the Money Market Yield of the average of the offered rates as of 11:00
A.M., New York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the Calculation
Agent (after consultation with the Company) for commercial paper having the
Index Maturity set forth on the face hereof placed for an industrial issuer
whose bond rating is "Aa", or the equivalent, from a nationally recognized
securities rating agency; PROVIDED, HOWEVER, that, if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the interest rate for the period commencing on the Interest Reset Date
following such Interest Determination Date will be the interest rate in effect
on such Interest Determination Date.
"MONEY MARKET YIELD" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
MONEY MARKET YIELD = D x 360 x 100
----------------
360 - (D x M)
<PAGE>
7
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal; and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
DETERMINATION OF FEDERAL FUNDS RATE. If the Base Rate set forth on
the face hereof is the Federal Funds Rate, this Security will bear interest for
each Interest Reset Period at the interest rate calculated with reference to the
Federal Funds Rate and the Spread, Spread Multiplier or other formula, if any,
set forth on the face hereof. Unless otherwise set forth on the face hereof,
the "FEDERAL FUNDS RATE" means, with respect to any Interest Determination Date
pertaining thereto, the rate on such date for federal funds as published in
H.15(519) under the caption "FEDERAL FUNDS (EFFECTIVE)" or, if not yet published
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Federal Funds Rate will be the rate on such
Interest Determination Date as published in H.15 Daily Update under the caption
"FEDERAL FUNDS (EFFECTIVE)". If by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date such rate is not
yet published in either H.15(519) or H.15 Daily Update, the Federal Funds Rate
for such Interest Determination Date will be calculated by the Calculation Agent
and will be the average of the rates for the last transaction in overnight
federal funds arranged by three leading dealers of federal funds transactions in
The City of New York, which dealers have been selected by the Calculation Agent
(after consultation with the Company), as of 9:00 A.M., New York City time, on
such Interest Determination Date; PROVIDED, HOWEVER, that, if the dealers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the interest rate for the period commencing on the Interest Reset
Date following such Interest Determination Date will remain the interest rate in
effect on such Interest Determination Date.
DETERMINATION OF LIBOR. If the Base Rate set forth on the face hereof
is LIBOR, this Security will bear interest for each Interest Reset Period at the
interest rate calculated with reference to LIBOR and the Spread, Spread
Multiplier or other formula, if any, set forth on the face hereof. Unless
otherwise set forth on the face hereof, "LIBOR" means the rate determined by the
Calculation Agent in accordance with the following provisions:
(i) If "LIBOR Reuters" is specified on the face hereof, LIBOR will
be the average of the offered rates for deposits in the LIBOR Currency
having the Index Maturity set forth on the face hereof on the applicable
Interest Reset Date, as such rates appear on the Designated LIBOR Page as
of 11:00 A.M., London time, on that Interest Determination Date, if at
least two such offered rates appear on the Designated LIBOR Page.
(ii) If "LIBOR Telerate" is specified on the face hereof, LIBOR will
be the rate for deposits in the LIBOR Currency having the Index Maturity
set forth on the face hereof on the applicable Interest Reset Date, as such
rates appears on the Designated
<PAGE>
8
LIBOR Page as of 11:00 A.M., London time, on that Interest Determination
Date. If such rate does not appear, LIBOR for such Interest Determination
Date will be determined as described in (iii) below.
(iii) If the Designated LIBOR Page by its terms provides only for a
single rate, that single rate will be used regardless of the foregoing
provisions require more than one rate. With respect to an Interest
Determination Date, if LIBOR-Reuters is the applicable method for
determining LIBOR and fewer than two offered rates appear on the Designated
LIBOR Page as specified in (i) above or if LIBOR-Telerate is the applicable
method for determining LIBOR and no rate appears on the Designated LIBOR
Page as specified in (ii) above, then LIBOR will be determined on the basis
of the offered rates at which deposits in the LIBOR Currency having the
Index Maturity set forth on the face hereof on the Interest Determination
Date and in a principal amount that is representative of a single
transaction in that market at that time are offered by four major banks in
the London interbank market at approximately 11:00 AM., London time, on the
Interest Determination Date to prime banks in the London interbank market.
The Calculation Agent will select the four banks and request the principal
London office of each of those banks to provide a quotation of its rate for
deposits in the LIBOR Currency. If at least two quotations are provided,
LIBOR for that Interest Determination Date will be the average of those
quotations. If fewer than two quotations are provided as mentioned above,
LIBOR will be the average of the rates quoted by three major banks in the
Principal Financial Center selected by the Calculation Agent at
approximately 11:00 A.M. in the Principal Financial Center, on the Interest
Determination Date for loans to leading Europeans banks in the LIBOR
Currency having the Index Maturity set forth on the face hereof and in a
principal amount that is representative for a single transaction in the
LIBOR Currency in that market at that time. The Calculation Agent will
select the three banks referred to above. If fewer than three banks
selected by the Calculation Agent are quoting as mentioned above, LIBOR
will remain LIBOR then in effect on the Interest Determination Date.
"LIBOR CURRENCY" means the Designated LIBOR Currency specified on the
face hereof as to which LIBOR shall be calculated or, if no such currency
is specified on the face hereof, United States dollars.
"DESIGNATED LIBOR PAGE" means, if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other
page as may replace such page on such service) for the purpose of
displaying the London interbank rates of major banks for the LIBOR
Currency; or if "LIBOR Telerate" is specified in the applicable pricing
supplement or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on
the face hereof as the method of calculating LIBOR, the display on Bridge
Telerate,
<PAGE>
9
Inc. (or any successor service, "Telerate") on the page specified on the
face hereof (or any other page as may replace such page on such service)
for the purpose of displaying the London interbank rates of major banks for
the LIBOR Currency.
DETERMINATION OF PRIME RATE. If the Base Rate set forth on the face
hereof is the Prime Rate, this Security will bear interest for each Interest
Reset Period at the interest rate calculated with reference to the Prime Rate
and the Spread, Spread Multiplier or other formula, if any, set forth on the
face hereof. Unless otherwise set forth on the face hereof, the "PRIME RATE"
means, with respect to any Interest Determination Date pertaining thereto, the
rate on such date as published in H.15(519) under the caption "BANK PRIME LOAN"
or, if not yet published by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the rate on such Interest
Determination Date as published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate, under the
caption "Bank Prime Loan."
If the rate is not published in H.15 (519), H.15 Daily Update or
another recognized electronic source by 3:00 P.M., New York City time, on the
Calculation Date, then the Calculation Agent will determine the Prime Rate to be
the average of the of the rates of interest publicly announced by each bank that
appears on the Reuters screen designated as "US Prime 1" as that bank's prime
rate or base lending rate as in effect for that Interest Determination Date. If
at least one rate but fewer than four rates appear on the Reuters screen US
Prime 1 on the Interest Determination Date, then the Prime Rate will be the
average of the prime rates or base lending rates quoted (on the basis of the
actual number of days in the year divided by a 360-day year) as of the close of
business on the Interest Determination Date by three major money center banks in
the City of New York selected by the Calculation Agent. If the banks selected
by the Calculation Agent are not quoting as mentioned above, the Prime Rate will
remain the Prime Rate then in effect on the Interest Determination Date.
DETERMINATION OF TREASURY RATE. If the Base Rate set forth on the
face hereof is the Treasury Rate, this Security will bear interest for each
Interest Reset Period at the interest rate calculated with reference to the
Treasury Rate and the Spread, Spread Multiplier or other formula, if any, set
forth on the face hereof. Unless otherwise set forth on the face hereof, the
"TREASURY RATE" means, with respect to any Interest Determination Date
pertaining thereto, the rate for the auction of direct obligations of the
United States ("TREASURY BILLS") held on such Interest Determination Date
having the Index Maturity set forth on the face hereof under the caption
"INVESTMENT RATE" on the display on Telerate on page 56 (or any other page as
may replace such page on such service) ("TELERATE PAGE 56") or page 57 (or
any other page as may replace such page on such service) ("TELERATE PAGE 57")
by 3:00 P.M., New York City time, on the Calculation date for that Interest
Determination Date.
The following procedures will be followed if the Treasury Rate cannot
be determined as described above:
<PAGE>
10
If the rate is not published by 3:00 P.M., New York City time, on
the Calculation Date, the Treasury Rate will be the Bond Equivalent Yield of
the auction rate of such Treasury bills as published in H.15 Daily Update or
such recognized electronic source used for the purpose of displaying such
rate under the caption "U.S. Government Securities Treasury Bills/Auction
High."
If the rate is not published by 3:00 P.M., New York City time, on the
Calculation Date and cannot be determined as described in the immediately
preceding paragraph, the Treasury Rate will be the Bond Equivalent Yield of
the auction rate of such Treasury bills as otherwise announced by the United
States Department of Treasury.
If the results of the most recent auction of Treasury bills having
the Index Maturity set forth on the face hereof are not published or
announced as described above by 3:00 P.M., New York City time, on the
Calculation Date, or if no auction is held on the Interest Determination
Date, then the Treasury Rate will be the Bond Equivalent Yield on such
Interest Determination Date of Treasury bills having the Index Maturity set
forth on the face hereof as published in H.15(519) under the caption "U.S.
Government securities/Treasury bills/Secondary market" or, if not yet
published by 3:00 p.m., New York City time, on the related Calculation Date,
the rate on such Interest Determination Date of such Treasury Bills as
published in H.15 Daily Update, or such other recognized electronic source
used for the purpose of displaying such rate, under the caption "U.S.
Government securities/Treasury bills/Secondary market."
If such rate is not published in H.15 (519), H.15 Daily Update or
another recognized electronic source, then the Calculation Agent will
determine the Treasury Rate to be the Bond Equivalent Yield of the average of
the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date of three leading primary United
States government securities dealers (which may include Agents or their
affiliates) for the issue of Treasury bills with a remaining maturity closest
to the Index Maturity set forth on the face hereof. The Calculation Agent
will select the three dealers referred to above.
If fewer than three dealers selected by the Calculation Agent are
quoting as mentioned above, the Treasury Rate will remain the Treasury Rate then
in effect on that Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
<TABLE>
<CAPTION>
<C> <C> <C>
D x N
------------- x 100
Bond Equivalent Yield = 360 - (D x M)
</TABLE>
where "D" refers to the applicable per annum rate for Treasury bills quoted
on a bank discount basis, "N" refers to 365 or 366, as the case may be, and
"M" refers to the actual number of days in the applicable Interest Reset
Period.
DETERMINATION OF CMT RATE. If the Base Rate set forth on the face
hereof is the CMT Rate, this Security will bear interest for each Interest Reset
Period at the interest rate calculated with reference to the CMT Rate and the
Spread, Spread Multiplier, or other formula, if any, set forth on the face
hereof. Unless otherwise set forth on the face hereof, the "CMT RATE" means,
with respect to any Interest Determination Date pertaining thereto, the rate
displayed on the Designated CMT Telerate Page (as defined below) under the
caption ". . . Treasury Constant Maturities . . . Federal Reserve Board Release
H.15 . . . Mondays Approximately 3:45 P.M.", under the column for the Designated
CMT Maturity Index (as defined below) for (i) if the Designated CMT Telerate
Page is 7051 or any successor page, the
<PAGE>
11
rate on such Interest Determination Date and (ii) if the Designated CMT Telerate
Page is 7052 or any successor page, the rate for the week or the monthly
average, as applicable, ended immediately preceding the week in which the
related Interest Determination Date occurs. If such rate is no longer displayed
on the relevant page, or if not displayed by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, then the
interest rate for such Interest Determination Date shall be the rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published, or if not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, then the
interest rate for such Interest Determination Date shall be the rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines (with the concurrence of the
Company) to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, then the interest rate for such Interest
Determination Date shall be calculated by the Calculation Agent and shall be a
yield to maturity, based on the arithmetic average of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such Interest Determination Date, reported by three leading primary United
States government securities dealers (each, a "REFERENCE DEALER") in The City of
New York, for the most recently issued direct noncallable fixed rate obligations
of the United States ("U.S. TREASURY NOTES") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. The three
Reference Dealers shall be determined by (i) the selection of five Reference
Dealers by the Calculation Agent (after consultation with the Company) and (ii)
the elimination of the Reference Dealers providing the highest (or, in the event
of equality, one of the highest) and the lowest (or, in the event of equality,
one of the lowest) quotations for such Interest Determination Date. If the
Calculation Agent cannot obtain three such U.S. Treasury Note quotations, the
interest rate for such Interest Determination Date shall be calculated by the
Calculation Agent and shall be a yield to maturity based on the arithmetic
average of the secondary market offer side prices as of approximately 3:30 P.M.,
New York City time, on the Interest Determination Date reported, according to
their written records, by three Reference Dealers in The City of New York,
selected in the manner described above, for U.S. Treasury Notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100 million. If only three or four
of such Reference Dealers are quoting as described above, then the interest rate
shall be based on the arithmetic average of the offer side prices so obtained
from all such Reference Dealers, without eliminating the Reference Dealers
providing the highest and the lowest of such quotes. If fewer than three such
Reference Dealers are quoting as described above, then the interest rate shall
be the CMT Rate in effect on such Interest Determination Date. If two such U.S.
Treasury Notes have remaining terms
<PAGE>
12
to maturity equally close to the Designated CMT Maturity Index, the quotes for
the U.S. Treasury Note with the shorter remaining term to maturity shall be
used.
"DESIGNATED CMT TELERATE PAGE" means the display on the Dow Jones
Telerate Service on the page set forth on the face hereof (or any other
page as may replace such page on that service for the purpose of displaying
treasury constant maturities as reported in H.15(519)). If no such page is
so specified, the Designated CMT Telerate Page shall be 7052.
"DESIGNATED CMT MATURITY INDEX" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7,10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is so specified, the Designated CMT
Maturity Index shall be two years.
DETERMINATION OF THE ELEVENTH DISTRICT COST OF FUNDS RATE. If the
Base Rate set forth on the face hereof is the Eleventh District Cost of Funds
Rate this security will bear interest for each Interest Reset Period at the
interest rate calculated with reference to the Eleventh District Cost of Funds
Rate and Spread, Spread Multiple or other formula, if any, set forth on the face
hereof. Unless otherwise set forth on the face hereof, the "ELEVENTH DISTRICT
COST OF FUNDS RATE" means with respect to any Interest Determination Date the
rate equal to the monthly weighted average cost of funds for the month preceding
the Interest Determination Date as displayed on the Telerate Page 7058 by 11:00
A.M., San Francisco time, on the Calculation Date for that Interest
Determination Date under the caption "11th District."
The following procedures will be used if the Eleventh District Cost of
Funds Rate cannot be determined as described above: (i) if the rate is not
displayed on the relevant page by 11:00 A.M., San Francisco time, on the
Calculation Date, then the Eleventh District Cost of Funds Rate will be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District, as announced by the Federal Home Loan
Bank of San Francisco, for the month preceding the date of announcement and (ii)
if no announcement was made relating to the month preceding the Interest
Determination Date, the Eleventh District Cost of Funds Rate will remain the
Eleventh District Cost of Funds Rate then in effect on the Interest
Determination Date.
References herein to "U.S. DOLLARS" or "U.S. $" or "$" are to the
currency of the United States of America.
Section 4. REDEMPTION. If so specified on the face hereof, the
Company may at its option redeem this Security in whole or from time to time in
part in increments of $1,000 (provided that any remaining principal amount of
this Security shall not be less than the Minimum Denomination specified on the
face hereof) on or after the date designated as the Initial Redemption Date on
the face hereof at 100% of the unpaid principal amount hereof or
<PAGE>
13
the portion thereof redeemed (or, if this Security is a Discount Security, such
lesser amount as is provided for below) multiplied by the Initial Redemption
Percentage specified on the face hereof, together with accrued interest to the
Redemption Date. Such Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by an amount equal to the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
redemption price is 100% of such amount of the unpaid principal amount hereof.
The Company may exercise such option by causing the Trustee to mail a notice of
such redemption at least 30 but not more than 60 days prior to the Redemption
Date. In the event of redemption of this Security in part only, a new Security
or Securities for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof. If less than all of the
Securities with like tenor and terms to this Security are to be redeemed, the
Securities to be redeemed shall be selected by the Trustee by such method as the
Trustee shall deem fair and appropriate. However, if less than all the
Securities of the series, of which this Security is a part, with differing issue
dates, interest rates or formula 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.
Section 5. REPAYMENT. If so specified on the face hereof, this
Security shall be repayable prior to the Stated Maturity Date at the option of
the Holder on each applicable Optional Repayment Date shown on the face hereof
at a repayment price equal to 100% of the principal amount to be repaid,
together with accrued interest to the Repayment Date. In order for this
Security to be repaid, the Trustee must receive at least 30 but not more than 60
days prior to an Optional Repayment Date, this Security with the form attached
hereto entitled "OPTION TO ELECT REPAYMENT" duly completed. Any tender of this
Security for repayment shall be irrevocable. The repayment option may be
exercised by the Holder of this Security in whole or in part in increments of
$1,000 (provided that any remaining principal amount of this Security shall not
be less than the Minimum Denomination specified on the face hereof). Upon any
partial repayment, this Security shall be canceled and a new Security or
Securities for the remaining principal amount hereof shall be issued in the name
of the Holder of this Security.
Section 6. SINKING FUND. Unless otherwise specified on the face
hereof, this Security will not be subject to any sinking fund.
Section 7. DISCOUNT SECURITIES. If this Security (such Security
being referred to as a "DISCOUNT SECURITY") (a) has been issued at an Issue
Price lower, by more than a DE MINIMIS amount (as determined under United States
federal income tax rules applicable to original issue discount instruments),
than the principal amount hereof and (b) would be considered an original issue
discount security for United States federal income tax purposes, then the amount
payable on this Security in the event of redemption by the Company, repayment at
the option of the Holder or acceleration of the maturity hereof, in lieu of the
<PAGE>
14
principal amount due at the Stated Maturity Date hereof, shall be the Amortized
Face Amount (as defined below) of this Security as of the date of such
redemption, repayment or acceleration. The "AMORTIZED FACE AMOUNT" of this
Security shall be the amount equal to the sum of (a) the Issue Price (as set
forth on the face hereof) plus (b) the aggregate of the portions of the original
issue discount (the excess of the amounts considered as part of the "stated
redemption price at maturity" of this Security within the meaning of
Section 1273(a)(2) of the Internal Revenue Code of 1986, as amended (the
"CODE"), whether denominated as principal or interest, over the Issue Price of
this Security) which shall theretofore have accrued pursuant to Section 1272 of
the Code (without regard to Section 1272(a)(7) of the Code) from the date of
issue of this Security to the date of determination, minus (c) any amount
considered as part of the "stated redemption price at maturity" of this Security
which has been paid on this Security from the date of issue to the date of
determination.
Section 8. MODIFICATION AND WAIVERS; OBLIGATION OF THE COMPANY
ABSOLUTE. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series. Such
amendment may be effected 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 at the time, on behalf of the
Holders of all Outstanding Securities, 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 all Outstanding
Securities of any series to waive on behalf of all of the Holders of Securities
of such series certain past defaults under the Indenture and their consequences.
Any such consent or waiver shall be conclusive and binding upon the Holder of
this Security and upon all future Holders of this Security and of any Security
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
Security.
The Securities are unsecured and rank pari passu with all other
unsecured and unsubordinated indebtedness of the Company.
No reference herein to the Indenture and no provision of this Security
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 on this Security at the times, place and rate, and in the Currency
herein prescribed.
Section 9. DEFEASANCE AND COVENANT DEFEASANCE. The Indenture
contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Security and (b) certain restrictive covenants and the
related defaults and Events of Default,
<PAGE>
15
upon compliance by the Company with certain conditions set forth therein, which
provisions apply to this Security, unless otherwise specified on the face
hereof.
Section 10. MINIMUM DENOMINATION. Unless otherwise provided on the
face hereof, this Security is issuable only in registered form without coupons
in denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000. If this Security is denominated in a Specified Currency
other than U.S. Dollars or is a Discount Security, this Security shall be
issuable in the denominations set forth on the face hereof.
Section 11. REGISTRATION OF TRANSFER. As provided in the Indenture
and subject to certain limitations herein and therein set forth, the transfer of
this Security is registrable in the Security Register upon surrender of this
Security for registration of transfer at a Place of Payment for the series of
Securities of which this Security is a part, 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 his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
If the registered owner of this Security is the Depository (such a
Security being referred to as a "GLOBAL SECURITY") and (i) 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 following notice to
the Company or (ii) an Event of Default occurs, the Company will issue
Securities in certificated form in exchange for this Global Security. In
addition, the Company may at any time determine not to have Securities
represented by a Global Security and, in such event, will issue Securities in
certificated form in exchange in whole for this Global Security representing
such Security. In any such instance, an owner of a beneficial interest in this
Global Security will be entitled to physical delivery of Securities in
certificated form equal in principal amount to such beneficial interest and to
have such Securities registered in its name. Securities so issued in
certificated form will be issued in denominations of $1,000 (or such other
Minimum Denomination specified on the face hereof) or any amount in excess
thereof which is an integral multiple of $1,000 (or such Minimum Denomination)
and will be issued in registered form only, without coupons.
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 Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
<PAGE>
16
Section 12. EVENTS OF DEFAULT. If an Event of Default with respect
to the Securities of the series of which this Security forms a part shall have
occurred and be continuing, the principal of this Security may be declared due
and payable in the manner and with the effect provided in the Indenture.
Section 13. DEFINED TERMS. All terms used in this Security which are
defined in the Indenture and are not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
Section 14. GOVERNING LAW. Unless otherwise specified on the face
hereof, this Security 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.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay this Security (or the portion thereof specified below), pursuant to its
terms, on the "REPAYMENT DATE" first occurring after the date of receipt of this
Security as specified below, at a Repayment Price equal to 100% of the principal
amount thereof, together with interest thereon accrued to the Repayment Date, to
the undersigned at:
- -----------------------------------------
- -----------------------------------------
(Please Print or Type Name and Address of the Undersigned.)
FOR THIS OPTION TO ELECT REPAYMENT TO BE EFFECTIVE, THIS SECURITY WITH
THE OPTION TO ELECT REPAYMENT DULY COMPLETED MUST BE RECEIVED AT LEAST 30 BUT
NOT MORE THAN 45 DAYS PRIOR TO THE REPAYMENT DATE (OR, IF SUCH REPAYMENT DATE IS
NOT A BUSINESS DAY, THE NEXT SUCCEEDING BUSINESS DAY) BY THE COMPANY AT ITS
OFFICE OR AGENCY IN THE CITY OF NEW YORK, WHICH WILL BE LOCATED INITIALLY AT THE
OFFICE OF THE TRUSTEE AT 450 WEST 33RD STREET, NEW YORK, NEW YORK 10001-2697.
If less than the entire principal amount of this Security is to be
repaid, specify the portion thereof (which shall be $1,000 or an integral
multiple thereof) which is to be repaid: $ ________.
If less than the entire principal amount of this Security is to be
repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount ($1,000 or any integral multiple of $1,000; PROVIDED that any
remaining principal amount of this Security shall not be less than the Minimum
Denomination): $ _______.
Dated:
------------------------
---------------------------------------------
Note: The signature to this Option to Elect
Repayment must correspond with the name as
written upon the face of this Security in
every particular without alterations or
enlargement or any change whatsoever.
<PAGE>
--------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ............Custodian............
(Cust.) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the above list.
--------------------------
FOR VALUE RECEIVED, the undersigned
hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
-------------------------------------
| |
-------------------------------------------------------------------------------
Please print or type name and address, including zip code of assignee
- --------------------------------------------------------------------------------
the within Security of DEERE & COMPANY and all rights thereunder and does hereby
irrevocably constitute and appoint
- --------------------------------------------------------------------------------
Attorney to transfer the said Security on the books of the within-named Company,
with full power of substitution in the premises.
Dated
----------------------------------
SIGNATURE GUARANTEED:
-----------------------------------
-----------------------------------
NOTICE: The signature to this
assignment must correspond with the
name as it appears upon the face of
the within Security in every
particular, without alteration or
enlargement or any change
whatsoever.
<PAGE>
[FACE OF NOTE]
CUSIP NO.
REGISTERED FACE AMOUNT
PRINCIPAL AMOUNT
No. FL -
DEERE & COMPANY
MEDIUM-TERM NOTE, SERIES C
(SINGLE INDEXED NOTE)
(FLOATING RATE)
Due from 9 Months to 30 Years from Date of Issue
If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "DEPOSITORY") or a nominee of the Depository, this
Security is a Global Security and the following two legends apply:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN
CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY
THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE DEPOSITORY OR
ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A
SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
<PAGE>
2
ISSUE PRICE: OPTION TO ELECT REPAYMENT:
[ ] YES [ ] NO
ORIGINAL ISSUE DATE: OPTIONAL REPAYMENT DATE[S]:
STATED MATURITY DATE:
INITIAL INTEREST RATE: OPTIONAL REDEMPTION: [ ] YES [ ] NO
BASE RATE: INITIAL REDEMPTION DATE:
If LIBOR: [ ] LIBOR Telerate
[ ] LIBOR Reuters INITIAL REDEMPTION PERCENTAGE:
[ ] Other
Designated LIBOR Page: ANNUAL REDEMPTION PERCENTAGE REDUCTION:
Designated LIBOR Currency:
INDEX MATURITY: MINIMUM DENOMINATIONS:
[ ] $100,000
[ ] $25,000
SPREAD (PLUS OR MINUS): [ ] Other:
SPECIFIED CURRENCY:
SPREAD MULTIPLIER: United States Dollars:
[ ] YES [ ] NO
Foreign Currency:
CALCULATION AGENT:
OPTION TO RECEIVE PAYMENTS
IN SPECIFIED CURRENCY
CALCULATION DATE: OTHER THAN U.S. DOLLARS:
[ ] YES [ ] NO
SINKING FUND: EXCHANGE RATE AGENT:
MAXIMUM INTEREST RATE: REFERENCE BANKS:
MINIMUM INTEREST RATE:
INTEREST DETERMINATION DATE: ADDITIONAL AMOUNTS:
INTEREST RESET PERIOD: DEFEASANCE: [ ] YES [ ] NO
INTEREST RESET DATES: COVENANT DEFEASANCE: [ ] YES [ ] NO
INTEREST PAYMENT PERIOD: OPTIONAL INTEREST RATE RESET:
[ ] YES [ ] NO
INTEREST PAYMENT DATES: OPTIONAL INTEREST RATE RESET DATES:
RENEWABLE: [ ] YES [ ] NO
RENEWAL DATE:
EXTENDIBLE: [ ] YES [ ] NO
FINAL MATURITY DATE:
TOTAL AMOUNT OF OID:
INITIAL ACCRUAL PERIOD OID:
YIELD TO MATURITY:
OTHER/DIFFERENT PROVISIONS:
<PAGE>
3
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, in the Specified Currency on the
Stated Maturity Date shown above (except to the extent redeemed or repaid prior
to the Stated Maturity Date), the principal sum of _______, plus or minus an
amount determined by the Determination Agent (as defined below) in accordance
with the formula set forth below, and to pay interest on the Face Amount as
described below and on the reverse hereof.
If the Spot Rate exceeds or equals the Base Exchange Rate, the
principal amount of this Security payable on the Maturity Date (as defined
below) shall equal:
Face Amount + (Face Amount x Spot Rate - Base Exchange Rate)
-------------------------------
Spot Rate
If the Base Exchange Rate exceeds the Spot Rate, the principal amount
of this Security payable on the Maturity Date shall equal:
Face Amount - (Face Amount x Base Exchange Rate - Spot Rate)
-------------------------------
Spot Rate
; PROVIDED, HOWEVER, that in no event shall such principal amount be less than
zero.
In making the above calculations, the (i) "BASE EXCHANGE RATE" is the
exchange rate specified as such above and (ii) "SPOT RATE" is the rate at which
the Specified Currency can be exchanged for the Indexed Currency (such rate
stated as units of Indexed Currency per unit of the Specified Currency) as
determined on the second Exchange Rate Day prior to the Maturity Date (the
"DETERMINATION DATE") by the Determination Agent based upon the arithmetic mean
of the open market spot offer quotations for such Indexed Currency (spot bid
quotations for the Specified Currency) obtained by the Determination Agent from
the Reference Dealers in The City of New York at 11:00 A.M., New York City time,
on the Determination Date, for an amount of Indexed Currency equal to the Face
Amount of this Security multiplied by the Base Exchange Rate, in terms of the
Specified Currency for settlement on the Maturity Date. If such quotations from
the Reference Dealers are not
<PAGE>
4
available on the Determination Date due to circumstances beyond the control of
the Company or the Determination Agent, the Spot Rate will be determined on the
basis of the most recently available quotations from the Reference Dealers. If
any of the Reference Banks shall be unwilling or unable to provide the requested
quotations, the Company may select other major money center bank or banks in The
City of New York, in consultation with the Determination Agent, to act as
Reference Dealer or Dealers in replacement therefor. In the absence of manifest
error, the determination by the Determination Agent of the Spot Rate and the
principal amount of this Security payable on the Maturity Date shall be final
and binding on the Company and the Holder (as defined below) of this Security.
The Company shall pay interest on the Face Amount hereof at the
Interest Rate shown above from the Original Issue Date shown above until the
first Interest Reset Date shown above following the Original Issue Date (if the
first Interest Reset Date is later than the Original Issue Date) and thereafter
at the interest rate determined by reference to the Base Rate shown above, plus
or minus the Spread, if any, or multiplied by the Spread Multiplier, if any,
shown above, determined in accordance with the provisions on the reverse hereof,
until the principal hereof is paid or made available for payment; PROVIDED,
HOWEVER, that the interest rate in effect for the ten days immediately prior to
the Maturity Date (as defined below) of this Security will be that in effect on
the tenth day preceding such date. The Company will pay interest on each
Interest Payment Date, if any, specified above, commencing with the first
Interest Payment Date next succeeding the Original Issue Date, and on the Stated
Maturity Date, any Redemption Date or Repayment Date (each such date being
hereinafter referred to as the "MATURITY DATE" with respect to the principal
repayable on such date); PROVIDED, HOWEVER, that any payment of principal (or
premium, if any) or interest, if any, to be made on any Interest Payment Date or
on the Maturity Date that is not a Business Day (as defined below) shall be made
on the next succeeding Business Day (except that if the Base Rate specified
above is LIBOR, and such day falls in the next succeeding calendar month, such
payment will be made on the next preceding Business Day) as described on the
reverse hereof. For purposes of this Security, unless otherwise specified on
the face hereof, "BUSINESS DAY" means any day that is not a Saturday or Sunday
and that is neither a legal holiday nor a day on which commercial banks are
authorized or required by law, regulation or executive order to close in The
City of New York; PROVIDED, HOWEVER, that, if the Specified Currency shown above
is a Foreign Currency, such day is also not a day on which commercial banks are
authorized or required by law, regulation or executive order to close in the
Principal Financial Center (as defined) of the country issuing the Specified
Currency (or, if the Specified Currency is the euro, such day is also a day on
which the Trans-European Automated Real-Time Gross Settlement Express Transfer
(TARGET) System is open); PROVIDED, FURTHER, that, with respect to Securities as
to which LIBOR is an applicable Base Rate, such day is also a London Business
Day. "LONDON BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in the LIBOR Currency (as defined below)) in
London. "PRINCIPAL FINANCIAL CENTER" means (i) the capital city of the country
issuing the Specified Currency or (ii)
<PAGE>
5
the capital city of the country to which the LIBOR Currency relates, as
applicable, except, in the case of (i) or (ii) above, that with respect to
United States dollars, Australian dollars, Canadian dollars, Deutsche marks,
Dutch guilders, Portuguese escudos, South African rand and Swiss francs, the
"Principal Financial Center" shall be The City of New York, Sydney and (solely
in the case of the Specified Currency) Melbourne, Toronto, Frankfurt, Amsterdam,
London (solely in the case of the LIBOR Currency), Johannesburg and Zurich,
respectively.
Interest on this Security will accrue from, and including, the
immediately preceding Interest Payment Date to which interest has been paid or
duly provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the applicable
Interest Payment Date or the Maturity Date, as the case may be (each, an
"INTEREST PERIOD"). The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture
and subject to certain exceptions described herein (referred to on the reverse
hereof), be paid to the person (the "HOLDER") in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on
the fifteenth day (whether or not a Business Day) next preceding such Interest
Payment Date (a "REGULAR RECORD DATE"); PROVIDED, HOWEVER, that, if this
Security was issued between a Regular Record Date and the initial Interest
Payment Date relating to such Regular Record Date, interest for the period
beginning on the Original Issue Date and ending on such initial Interest Payment
Date shall be paid on the Interest Payment Date following the next succeeding
Regular Record Date to the Holder hereof on such Regular Record Date; and
PROVIDED FURTHER that interest payable on the Maturity Date will be payable to
the person to whom the principal hereof shall be payable. Any such interest not
so punctually paid or duly provided for on any Interest Payment Date other than
the Maturity Date ("DEFAULTED INTEREST") will forthwith cease to be payable to
the Holder on such Regular Record Date and may either be paid to the person in
whose name this Security (or one or more Predecessor Securities) is registered
at the close of business on a special record date (the "SPECIAL RECORD DATE")
for the payment of such Defaulted Interest to be fixed by the Trustee (referred
to on the reverse hereof), notice whereof shall be given to the Holder of this
Security not less than ten days prior to such Special Record Date, or may be
paid at any time in any other lawful manner, all as more fully provided in the
Indenture.
Unless otherwise specified above, all payments in respect of this
Security will be made in U.S. dollars regardless of the Specified Currency shown
above unless the Holder hereof makes the election described below. If the
Specified Currency shown above is other than U.S. dollars, the Exchange Rate
Agent (referred to on the reverse hereof) will arrange to convert any amounts so
payable in respect hereof into U.S. dollars in the manner described on the
reverse hereof; PROVIDED, HOWEVER, that the Holder hereof may, if so indicated
above, elect to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Security in such Specified
Currency by delivery of a written request to the corporate trust office of the
Trustee, on or prior to the applicable Regular Record Date
<PAGE>
6
or at least fifteen days prior to the Maturity Date, as the case may be. Such
request may be in writing (mailed or hand delivered) or by cable, telex or other
form of facsimile transmission. The Holder hereof may elect to receive payment
in such Specified Currency for all principal and interest, if any, payments and
need not file a separate election for each payment. Such election will remain
in effect until revoked by written notice to the Trustee, but written notice of
any such revocation must be received by the Trustee on or prior to the
applicable Regular Record Date or at least fifteen days prior to the Maturity
Date, as the case may be.
Notwithstanding the foregoing, if the Company determines that the
Specified Currency is not available for making payments in respect hereof due to
the imposition of exchange controls or other circumstances beyond the Company's
control, or is no longer used by the government of the country issuing such
currency or for the settlement of transactions by public institutions of or
within the international banking community, then the Holder hereof may not so
elect to receive payments in the Specified Currency and any such outstanding
election shall be automatically suspended, until the Company determines that the
Specified Currency is again available for making such payments.
In the event of an official redenomination of the Specified Currency,
the obligations of the Company with respect to payments on this Security shall
be deemed, immediately following such redenomination, to provide for payment of
that amount of redenominated currency representing the amount of such
obligations immediately before such redenomination. Except as set forth above,
in no event shall any adjustment be made to any amount payable hereunder as a
result of any change in the value of the Specified Currency shown above relative
to any other currency due solely to fluctuations in exchange rates.
Until this Security is paid in full or payment therefor in full is
duly provided for, the Company will at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in The City of New York (which, unless
otherwise specified above, shall be the "PLACE OF PAYMENT"). The Company has
initially appointed The Chase Manhattan Bank, at its office in The City of New
York as Paying Agent.
Unless otherwise shown above, payment of interest on this Security
(other than on the Maturity Date) will be made by check mailed to the registered
address of the Holder hereof; PROVIDED, HOWEVER, that, if (i) the Specified
Currency is U.S. dollars and this is a Global Security or (ii) the Specified
Currency is a Foreign Currency, and the Holder has elected to receive payments
in such Specified Currency as provided for above, such interest payments will be
made by transfer of immediately available funds, but only if appropriate
instructions have been received in writing by the Trustee on or prior to the
applicable Regular Record Date. Simultaneously with any election by the Holder
hereof to receive payments in respect hereof in the Specified Currency (if other
than U.S. dollars), such Holder may provide appropriate instructions to the
Trustee, and all such payments will be made in immediately
<PAGE>
7
available funds to an account maintained by the payee with a bank, but only if
such bank has appropriate facilities therefor. Unless otherwise specified
above, the principal hereof (and premium, if any) and interest hereon payable on
the Maturity Date will be paid in immediately available funds upon surrender of
this Security at the office of the Trustee maintained for that purpose in the
Borough of Manhattan, The City and State of New York (or at such other location
as may be specified above). The Company will pay any administrative costs
imposed by banks in making payments in immediately available funds but, except
as otherwise provided under Additional Amounts above, any tax, assessment or
governmental charge imposed upon payments will be borne by the Holders of the
Securities in respect of which such payments are made.
Interest on this Security, if any, will be computed on the basis of a
360-day year of twelve 30-day months.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security 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.
DEERE & COMPANY
By:
--------------------------------------
Authorized Officer
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
Dated: THE CHASE MANHATTAN BANK,
as Trustee
By:
-------------------------------------
<PAGE>
[REVERSE OF NOTE]
DEERE & COMPANY
MEDIUM-TERM NOTE, SERIES C
Section 1. GENERAL. This Security is one of a duly authorized issue
of securities (herein called the "SECURITIES") of the Company, issued and to be
issued in one or more series under an indenture, dated as of July 1, 1994, as
it may be supplemented from time to time (herein called the "INDENTURE"),
between the Company and The Chase Manhattan Bank (successor by merger to The
Chase Manhattan Bank (National Association)), Trustee (herein called the
"TRUSTEE", which term includes any successor trustee under the Indenture with
respect to a series of which this Security 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. This
Security is one of the series designated on the face hereof which is unlimited
in aggregate principal amount.
Section 2. PAYMENTS. If the Specified Currency is other than U.S.
dollars and the Holder hereof fails to elect payment in such Specified Currency,
the amount of U.S. dollar payments to be made in respect hereof will be
determined by the Exchange Rate Agent specified on the face hereof or a
successor thereto (the "EXCHANGE RATE AGENT") based on the highest bid quotation
in The City of New York at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date by the Exchange Rate
Agent for the purchase by the Exchange Rate Agent of the Specified Currency for
U.S. dollars from three recognized foreign exchange dealers (one of whom may be
the Exchange Rate Agent) selected by the Exchange Rate Agent and approved by the
Company for the purchase by the quoting dealer of the Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all Holders of Securities scheduled to receive
U.S. dollar payments and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available, payments will be made
in the Specified Currency. All currency exchange costs will be borne by the
Holder of the Securities by deductions from such payments.
Except as set forth below, if the Specified Currency is other than
U.S. dollars and the Specified Currency is not available due to the imposition
of exchange controls or to other circumstances beyond the Company's control, the
Company will be entitled to satisfy its obligations to the Holder of this
Security by making such payment in U.S. dollars on the basis of the noon buying
rate in The City of New York for cable transfers of such Specified Currency as
certified for customs purposes (or, if not so certified as otherwise determined)
by the Federal Reserve Bank of New York (the "MARKET EXCHANGE RATE") for such
Specified Currency as computed by the Exchange Rate Agent on the second Business
Day prior to the
<PAGE>
2
applicable payment date or, if the Market Exchange Rate is then not available,
on the basis of the most recently available Market Exchange Rate or as otherwise
indicated above.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion (except to the extent expressly provided that
any determination is subject to approval by the Company) and, in the absence of
manifest error, shall be conclusive for all purposes and binding on the Holder
of this Security, and the Exchange Rate Agent shall have no liability therefor.
All currency exchange costs will be borne by the Company unless the
Holder of this Security has made the election to receive payments in the
Specified Currency. In that case, the Holder shall bear its pro rata portion of
currency exchange costs, if any, by deductions from payments otherwise due to
such Holder.
Section 3. INTEREST RATE CALCULATIONS. Unless otherwise set forth on
the face hereof, the following provisions of this Section 3 shall apply to the
calculation of interest on this Security. If the first Interest Reset Date is
later than the Original Issue Date, this Security will bear interest from its
Original Issue Date to the first Interest Reset Date at the Initial Interest
Rate set forth on the face hereof. Thereafter, the interest rate hereon for
each Interest Reset Period (as defined below) will be determined by reference to
the Base Rate set forth on the face hereof, as adjusted by the Spread, the
Spread Multiplier or other formula, if any, set forth on the face hereof.
As set forth on the face hereof, this Security may also have either or
both of the following: (i) a maximum limitation, or ceiling, on the rate at
which interest may accrue during any Interest Period (as defined below)
("MAXIMUM INTEREST RATE"); and (ii) a minimum limitation, or floor, on the rate
at which interest may accrue during any Interest Period ("MINIMUM INTEREST
RATE"). In addition to any Maximum Interest Rate that may be set forth on the
face hereof, the interest rate on this Security will in no event be higher than
the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
The rate of interest hereon will be reset daily, weekly, monthly,
quarterly, semi-annually or annually or at another interval (each, an
"INTEREST RESET PERIOD"), as set forth on the face hereof. The date or dates
on which interest will be reset (each, an "INTEREST RESET DATE") will be, if
this Security resets (i) daily, each Business Day; (ii) weekly, the Wednesday
of each week (unless the Base Rate set forth on the face hereof is the
Treasury Rate, in which case the Tuesday of each week (except as provided
below)); (iii) monthly, the third Wednesday of each month; (iv) quarterly,
the third Wednesday of March, June, September and December of each year; (v)
semi-annually, the third Wednesday of each of the two months set forth on the
face hereof;
<PAGE>
3
and (vi) annually, the third Wednesday of the month of each year set forth on
the face hereof; PROVIDED, HOWEVER, that (a) if the first Interest Reset Date is
later than the Original Issue Date, the interest rate in effect from the
Original Issue Date to the first Interest Reset Date will be the Initial
Interest Rate as set forth on the face hereof and (b) the interest rate in
effect for the ten days immediately prior to the Maturity Date will be that in
effect on the tenth day preceding the Maturity Date. If the Base Rate set forth
on the face hereof is the Treasury Rate and a Treasury auction shall fall on the
Interest Reset Date for this Security, then such Interest Reset Date shall
instead be the first Business Day immediately following such Treasury auction.
If any Interest Reset Date would otherwise be a day that is not a Business Day,
such Interest Reset Date shall be the next succeeding Business Day, except that,
if the Base Rate set forth on the face hereof is LIBOR, if such Business Day is
in the next succeeding calendar month, such Interest Reset Date shall be the
immediately preceding Business Day.
The interest payable hereon on each Interest Payment Date and on
the Maturity Date shall be the amount of interest accrued from and including
the Original Issue Date or the next preceding Interest Payment Date in
respect of which interest, if any, has been paid or duly provided for, as the
case may be, to, but excluding, the next succeeding Interest Payment Date or
the Maturity Date, as the case may be; PROVIDED, HOWEVER, that, if the
interest rate is reset daily or weekly, interest payable on any Interest
Payment Date will be the amount of interest accrued from and including the
Original Issue Date or from but excluding the last Regular Record Date
through which interest has been paid through and including the Regular Record
Date immediately preceding such Interest Payment Date, except that interest
payable on the Maturity Date will include interest accrued to, but excluding,
the Maturity Date (each such period, an "INTEREST PERIOD"). If the Maturity
Date falls on a day which is not a Business Day, the payment of principal,
premium, if any, and interest, if any, with respect to the Maturity Date will
be paid on the next succeeding Business Day with the same force and effect as
if made on the Maturity Date, and no interest shall accrue on the amount so
payable as a result of such delayed payment. If an Interest Payment Date
other than the Maturity Date falls on a day that is not a Business Day, such
Interest Payment Date will be postponed to the next day that is a Business
Day and interest will accrue for the period of such postponement (except if
the Base Rate specified above is LIBOR, and such day falls in the next
succeeding calendar month, such Interest Payment Date will be advanced to the
immediately preceding Business Day), it being understood that, to the extent
this sentence is inconsistent with Section 112 of the Indenture, the
provisions of this sentence shall apply in lieu of such Section.
Accrued interest will be calculated by multiplying the principal
amount hereof by an accrued interest factor. Such accrued interest factor will
be computed by adding the interest factor calculated for each day in the
Interest Period or from the date from which accrued interest is being
calculated. The interest factor for each such day is computed by dividing the
interest rate applicable on such day by 360, if the Base Rate set forth on the
face hereof is the CD Rate, Commercial Paper Rate, Eleventh District Cost of
Funds Rate, Federal
<PAGE>
4
Funds Rate, Prime Rate or LIBOR (as described below), or by the actual number
of days in the year, if the Base Rate set forth on the face hereof is the
Treasury Rate or the CMT Rate (each as described below). The interest rate
applicable to any day that is an Interest Reset Date is the interest rate as
determined, in accordance with the procedures hereinafter set forth, with
respect to the Interest Determination Date (as defined below) pertaining to
such Interest Reset Date. The interest rate applicable to any other day is
the interest rate for the immediately preceding Interest Reset Date (or, if
none, the Initial Interest Rate, as set forth on the face hereof).
All percentages resulting from any calculation with respect hereto
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded upward
(E.G., 7.123455% (or 0.07123455) being rounded to 7.12346% (or 0.0712346) and
7.123454% (or 0.07123454) being rounded to 7.12345% (or 0.0712345)), and all
currency amounts used in or resulting from such calculation will be rounded to
the nearest one-hundredth of a unit (with five one-thousandths of a unit being
rounded upwards).
Interest will be payable on, if this Security resets (i) daily,
weekly or monthly, the third Wednesday of each month; (ii) quarterly, the
third Wednesday of March, June, September and December of each year; (iii)
semi-annually, the third Wednesday of the two months set forth on the face
hereof; and (iv) annually, the third Wednesday of the month set forth on the
face hereof (each, an "INTEREST PAYMENT DATE"), and in each case, on the
Maturity Date.
If the Base Rate set forth on the face hereof is the CD Rate, the
CMT Rate, the Commercial Paper Rate, the Federal Funds Rate or the Prime
Rate, the "INTEREST DETERMINATION DATE" pertaining to an Interest Reset Date
for this Security will be the second Business Day immediately preceding such
Interest Reset Date; if the Base Rate set forth on the face hereof is LIBOR,
the "INTEREST DETERMINATION DATE" pertaining to an Interest Reset Date for
this Security will be the second London Banking Day immediately preceding
such Interest Reset Date, unless the Designated LIBOR Currency is British
pounds sterling, in which case the "INTEREST DETERMINATION DATE" will be such
Interest Reset Date; and if the Base Rate set forth on the face hereof is the
Treasury Rate, the "INTEREST DETERMINATION DATE" pertaining to an Interest
Reset Date for this Security will be the day of the week in which such
Interest Reset Date falls on which Treasury bills (as defined below) would
normally be auctioned. Treasury bills are usually sold at auction on Monday
of each week, unless that day is a legal holiday, in which case the auction
is usually held on the following Tuesday, except that sometimes such auction
may be held on the preceding Friday. If, as the result of a legal holiday, an
auction is so held on the preceding Friday, such Friday will be the Interest
Determination Date pertaining to the Interest Reset Date occurring in the
next succeeding week.
<PAGE>
5
If the Base Rate set forth on the face hereof is the Eleventh District
Cost of Funds Rate, the "INTEREST DETERMINATION DATE" pertaining to an Interest
Reset Date for this Security is the last Business Day of the month immediately
preceding the applicable Interest Reset Date in which the Federal Home Loan Bank
of San Francisco published the index.
Unless otherwise set forth on the face hereof, the "CALCULATION DATE",
where applicable, pertaining to an Interest Determination Date is the earlier of
(i) the tenth calendar day after such Interest Determination Date, or if any
such day is not a Business Day, the next succeeding Business Day and (ii) the
Business Day immediately preceding the applicable Interest Payment Date or the
Maturity Date, as the case may be.
The Company will appoint and enter into an agreement with an agent (a
"CALCULATION AGENT") to calculate the rate of interest on the Securities of this
series which bear interest at a floating rate. Unless otherwise set forth on
the face hereof, The Chase Manhattan Bank will be the Calculation Agent. At the
request of the Holder hereof, the Calculation Agent will provide the interest
rate then in effect and, if determined, the interest rate that will become
effective on the next Interest Reset Date.
Subject to applicable provisions of law and except as specified
herein, with respect to each Interest Determination Date, the rate of interest
shall be the rate determined by the Calculation Agent in accordance with the
provisions of the applicable heading below.
DETERMINATION OF CD RATE. If the Base Rate set forth on the face
hereof is the CD Rate, this Security will bear interest for each Interest
Reset Period at the interest rate calculated with reference to the CD Rate
and the Spread, Spread Multiplier or other formula, if any, set forth on the
face hereof. Unless otherwise set forth on the face hereof, the "CD RATE"
means, with respect to any Interest Determination Date pertaining thereto,
the rate on such date for negotiable certificates of deposit having the Index
Maturity set forth on the face hereof as published in H.15(519) (as defined
below), under the heading "CDS (SECONDARY MARKET)" or, if not yet published
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the CD Rate will be the rate on such Interest
Determination Date for negotiable certificates of deposit having the Index
Maturity set forth on the face hereof as published in H.15 Daily Update under
the caption "CDS (SECONDARY MARKET)". If by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date such rate
is not yet published in either H.15(519) or H.15 Daily Update, the CD Rate on
such Interest Determination Date will be calculated by the Calculation Agent
and will be the average of the secondary market offered rates as of 10:00
A.M., New York City time, on such Interest Determination Date, of three
leading non-bank dealers in negotiable U.S. dollar certificates of deposit in
The City of New York selected by the Calculation Agent (after consultation
with the Company) for negotiable certificates of deposit of major United
States money market banks of the highest credit standing (in the market for
negotiable
<PAGE>
6
certificates of deposit) having a remaining maturity closest to the Index
Maturity set forth on the face hereof in a denomination of U.S. $5,000,000;
PROVIDED, HOWEVER, that, if the dealers selected as aforesaid by the Calculation
Agent are not quoting as mentioned in this sentence, the interest rate for the
period commencing on the Interest Reset Date following such Interest
Determination Date will be the interest rate in effect on such Interest
Determination Date. "H.15(519)" means the weekly statistical release designated
as such, or any successor publication, published by the Board of Governors of
the Federal Reserve System. "H.15 DAILY UPDATE" means the daily update of
H.15(519), available through the world-wide-web site of the Board of Governors
of the Federal Reserve System at http://www.bog.frb.fed.us/releases/h15/update,
or any successor site or publication.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Base Rate set forth on
the face hereof is the Commercial Paper Rate, this Security will bear interest
for each Interest Reset Period at the interest rate calculated with reference to
the Commercial Paper Rate and the Spread, Spread Multiplier or other formula ,
if any, set forth on the face hereof. Unless otherwise set forth on the face
hereof, the "COMMERCIAL PAPER RATE" means, with respect to any Interest
Determination Date pertaining thereto, the Money Market Yield (calculated as
described below) of the rate on such date for commercial paper having the Index
Maturity set forth on the face hereof, as such rate shall be published in
H.15(519) under the caption "COMMERCIAL PAPER -- NONFINANCIAL" or, if not yet
published by 3:00 P.M., New York City time, on the Calculation Date pertaining
to such Interest Determination Date, the Commercial Paper Rate shall be the
Money Market Yield of the rate on such Interest Determination Date for
commercial paper having the Index Maturity set forth on the face hereof as
published in H.15 Daily Update under the caption "COMMERCIAL PAPER --
NONFINANCIAL". If by 3:00 P.M., New York City time, on the Calculation Date
pertaining to such Interest Determination Date such rate is not yet published in
either H.15(519) or H.15 Daily Update, the Commercial Paper Rate on such
Interest Determination Date shall be calculated by the Calculation Agent and
shall be the Money Market Yield of the average of the offered rates as of 11:00
A.M., New York City time, on such Interest Determination Date of three leading
dealers in commercial paper in The City of New York selected by the Calculation
Agent (after consultation with the Company) for commercial paper having the
Index Maturity set forth on the face hereof placed for an industrial issuer
whose bond rating is "Aa", or the equivalent, from a nationally recognized
securities rating agency; PROVIDED, HOWEVER, that, if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the interest rate for the period commencing on the Interest Reset Date
following such Interest Determination Date will be the interest rate in effect
on such Interest Determination Date.
"MONEY MARKET YIELD" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
MONEY MARKET YIELD = D X 360 x 100
-----------
<PAGE>
7
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal; and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
DETERMINATION OF FEDERAL FUNDS RATE. If the Base Rate set forth on
the face hereof is the Federal Funds Rate, this Security will bear interest for
each Interest Reset Period at the interest rate calculated with reference to the
Federal Funds Rate and the Spread, Spread Multiplier or other formula, if any,
set forth on the face hereof. Unless otherwise set forth on the face hereof,
the "FEDERAL FUNDS RATE" means, with respect to any Interest Determination Date
pertaining thereto, the rate on such date for federal funds as published in
H.15(519) under the caption "FEDERAL FUNDS (EFFECTIVE)" or, if not yet published
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the Federal Funds Rate will be the rate on such
Interest Determination Date as published in H.15 Daily Update under the caption
"FEDERAL FUNDS (EFFECTIVE)". If by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date such rate is not
yet published in either H.15(519) or H.15 Daily Update, the Federal Funds Rate
for such Interest Determination Date will be calculated by the Calculation Agent
and will be the average of the rates for the last transaction in overnight
federal funds arranged by three leading dealers of federal funds transactions in
The City of New York, which dealers have been selected by the Calculation Agent
(after consultation with the Company), as of 9:00 A.M., New York City time, on
such Interest Determination Date; PROVIDED, HOWEVER, that, if the dealers
selected as aforesaid by the Calculation Agent are not quoting as mentioned in
this sentence, the interest rate for the period commencing on the Interest Reset
Date following such Interest Determination Date will remain the interest rate in
effect on such Interest Determination Date.
DETERMINATION OF LIBOR. If the Base Rate set forth on the face hereof
is LIBOR, this Security will bear interest for each Interest Reset Period at the
interest rate calculated with reference to LIBOR and the Spread, Spread
Multiplier or other formula, if any, set forth on the face hereof. Unless
otherwise set forth on the face hereof, "LIBOR" means the rate determined by the
Calculation Agent in accordance with the following provisions:
(i) If "LIBOR Reuters" is specified on the face hereof, LIBOR will
be the average of the offered rates for deposits in the LIBOR Currency
having the Index Maturity set forth on the face hereof on the applicable
Interest Reset Date, as such rates appear on the Designated LIBOR Page as
of 11:00 A.M., London time, on that Interest Determination Date, if at
least two such offered rates appear on the Designated LIBOR Page.
<PAGE>
8
(ii) If "LIBOR Telerate" is specified on the face hereof, LIBOR
will be the rate for deposits in the LIBOR Currency having the Index
Maturity set forth on the face hereof on the applicable Interest Reset
Date, as such rates appears on the Designated LIBOR Page as of 11:00 A.M.,
London time, on that Interest Determination Date. If such rate does not
appear, LIBOR for such Interest Determination Date will be determined as
described in (iii) below.
(iii) If the Designated LIBOR Page by its terms provides only for a
single rate, that single rate will be used regardless of the foregoing
provisions require more than one rate. With respect to an Interest
Determination Date, if LIBOR-Reuters is the applicable method for
determining LIBOR and fewer than two offered rates appear on the Designated
LIBOR Page as specified in (i) above or if LIBOR-Telerate is the applicable
method for determining LIBOR and no rate appears on the Designated LIBOR
Page as specified in (ii) above, then LIBOR will be determined on the basis
of the offered rates at which deposits in the LIBOR Currency having the
Index Maturity set forth on the face hereof on the Interest Determination
Date and in a principal amount that is representative of a single
transaction in that market at that time are offered by four major banks in
the London interbank market at approximately 11:00 AM., London time, on the
Interest Determination Date to prime banks in the London interbank market.
The Calculation Agent will select the four banks and request the principal
London office of each of those banks to provide a quotation of its rate for
deposits in the LIBOR Currency. If at least two quotations are provided,
LIBOR for that Interest Determination Date will be the average of those
quotations. If fewer than two quotations are provided as mentioned above,
LIBOR will be the average of the rates quoted by three major banks in the
Principal Financial Center selected by the Calculation Agent at
approximately 11:00 A.M. in the Principal Financial Center, on the Interest
Determination Date for loans to leading Europeans banks in the LIBOR
Currency having the Index Maturity set forth on the face hereof and in a
principal amount that is representative for a single transaction in the
LIBOR Currency in that market at that time. The Calculation Agent will
select the three banks referred to above. If fewer than three banks
selected by the Calculation Agent are quoting as mentioned above, LIBOR
will remain LIBOR then in effect on the Interest Determination Date.
"LIBOR CURRENCY" means the Designated LIBOR Currency specified on the
face hereof as to which LIBOR shall be calculated or, if no such currency
is specified on the face hereof, United States dollars.
"DESIGNATED LIBOR PAGE" means, if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other
page as may replace such
<PAGE>
9
page on such service) for the purpose of displaying the London interbank
rates of major banks for the LIBOR Currency; or if "LIBOR Telerate" is
specified in the applicable pricing supplement or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method of
calculating LIBOR, the display on Bridge Telerate, Inc. (or any successor
service, "TELERATE") on the page specified on the face hereof (or any other
page as may replace such page on such service) for the purpose of
displaying the London interbank rates of major banks for the LIBOR
Currency.
DETERMINATION OF PRIME RATE. If the Base Rate set forth on the face
hereof is the Prime Rate, this Security will bear interest for each Interest
Reset Period at the interest rate calculated with reference to the Prime Rate
and the Spread, Spread Multiplier or other formula, if any, set forth on the
face hereof. Unless otherwise set forth on the face hereof, the "PRIME RATE"
means, with respect to any Interest Determination Date pertaining thereto, the
rate on such date as published in H.15(519) under the caption "BANK PRIME LOAN"
or, if not yet published by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the rate on such Interest
Determination Date as published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate, under the
caption "Bank Prime Loan."
If the rate is not published in H.15 (519), H.15 Daily Update or
another recognized electronic source by 3:00 P.M., New York City time, on the
Calculation Date, then the Calculation Agent will determine the Prime Rate to be
the average of the of the rates of interest publicly announced by each bank that
appears on the Reuters screen designated as "US Prime 1" as that bank's prime
rate or base lending rate as in effect for that Interest Determination Date. If
at least one rate but fewer than four rates appear on the Reuters screen US
Prime 1 on the Interest Determination Date, then the Prime Rate will be the
average of the prime rates or base lending rates quoted (on the basis of the
actual number of days in the year divided by a 360-day year) as of the close of
business on the Interest Determination Date by three major money center banks in
the City of New York selected by the Calculation Agent. If the banks selected
by the Calculation Agent are not quoting as mentioned above, the Prime Rate will
remain the Prime Rate then in effect on the Interest Determination Date.
DETERMINATION OF TREASURY RATE. If the Base Rate set forth on the
face hereof is the Treasury Rate, this Security will bear interest for each
Interest Reset Period at the interest rate calculated with reference to the
Treasury Rate and the Spread, Spread Multiplier or other formula, if any, set
forth on the face hereof. Unless otherwise set forth on the face hereof, the
"TREASURY RATE" means, with respect to any Interest Determination Date
pertaining thereto, the rate for the auction of direct obligations of the
United States ("TREASURY BILLS") held on such Interest Determination Date
having the Index Maturity set forth on the face hereof under the caption
"INVESTMENT RATE" on the display on Telerate on page 56 (or any other page as
may replace such page on such service) ("TELERATE PAGE 56") or page 57 (or
any other page as
<PAGE>
10
may replace such page on such service) ("TELERATE PAGE 57") by 3:00 P.M., New
York City time, on the Calculation date for that Interest Determination Date.
The following procedures will be followed if the Treasury Rate cannot
be determined as described above:
If the rate is not published by 3:00 P.M., New York City time, on
the Calculation Date, the Treasury Rate will be the Bond Equivalent Yield of
the auction rate of such Treasury bills as published in H.15 Daily Update or
such recognized electronic source used for the purpose of displaying such
rate under the caption "U.S. Government Securities Treasury Bills/Auction
High."
If the rate is not published by 3:00 P.M., New York City time, on the
Calculation Date and cannot be determined as described in the immediately
preceding paragraph, the Treasury Rate will be the Bond Equivalent Yield of
the auction rate of such Treasury bills as otherwise announced by the United
States Department of Treasury.
If the results of the most recent auction of Treasury bills having
the Index Maturity set forth on the face hereof are not published or
announced as described above by 3:00 P.M., New York City time, on the
Calculation Date, or if no auction is held on the Interest Determination
Date, then the Treasury Rate will be the Bond Yield Equivalent on such
Interest Determination Date of Treasury bills having the Index Maturity set
forth on the face hereof as published in H.15(519) under the caption "U.S.
Government securities/Treasury bills/Secondary market" or, if not yet
published by 3:00 p.m., New York City time, on the related Calculation Date,
the rate on such Interest Determination Date of such Treasury Bills as
published in H.15 Daily Update, or such other recognized electronic source
used for the purpose of displaying such rate, under the caption "U.S.
Government securities/Treasury bills/Secondary market."
If such rate is not published in H.15 (519), H.15 Daily Update or
another recognized electronic source, then the Calculation Agent will
determine the Treasury Rate to be the Bond Yield Equivalent of the average of
the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date of three leading primary United
States government securities dealers (which may include Agents or their
affiliates) for the issue of Treasury bills with a remaining maturity closest
to the Index Maturity set forth on the face hereof. The Calculation Agent
will select the three dealers referred to above.
If fewer than three dealers selected by the Calculation Agent are
quoting as mentioned above, the Treasury Rate will remain the Treasury Rate then
in effect on that Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
<TABLE>
<CAPTION>
<C> <C> <C>
D x N
------------- x 100
Bond Equivalent Yield = 360 - (D x M)
</TABLE>
where "D" refers to the applicable per annum rate for Treasury bills quoted
on a bank discount basis, "N" refers to 365 or 366, as the case may be, and
"M" refers to the actual number of days in the applicable Interest Reset
Period.
DETERMINATION OF CMT RATE. If the Base Rate set forth on the face
hereof is the CMT Rate, this Security will bear interest for each Interest Reset
Period at the interest rate
<PAGE>
11
calculated with reference to the CMT Rate and the Spread, Spread Multiplier, or
other formula, if any, set forth on the face hereof. Unless otherwise set forth
on the face hereof, the "CMT RATE" means, with respect to any Interest
Determination Date pertaining thereto, the rate displayed on the Designated CMT
Telerate Page (as defined below) under the caption ". . . Treasury Constant
Maturities . . . Federal Reserve Board Release H.15 . . . Mondays Approximately
3:45 P.M.", under the column for the Designated CMT Maturity Index (as defined
below) for (i) if the Designated CMT Telerate Page is 7051 or any successor
page, the rate on such Interest Determination Date and (ii) if the Designated
CMT Telerate Page is 7052 or any successor page, the rate for the week or the
monthly average, as applicable, ended immediately preceding the week in which
the related Interest Determination Date occurs. If such rate is no longer
displayed on the relevant page, or if not displayed by 3:00 P.M., New York City
time, on the Calculation Date pertaining to such Interest Determination Date,
then the interest rate for such Interest Determination Date shall be the rate
for the Designated CMT Maturity Index as published in H.15(519). If such rate
is no longer published, or if not published by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, then the
interest rate for such Interest Determination Date shall be the rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines (with the concurrence of the
Company) to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, then the interest rate for such Interest
Determination Date shall be calculated by the Calculation Agent and shall be a
yield to maturity, based on the arithmetic average of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such Interest Determination Date, reported by three leading primary United
States government securities dealers (each, a "REFERENCE DEALER") in The City of
New York, for the most recently issued direct noncallable fixed rate obligations
of the United States ("U.S. TREASURY NOTES") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. The three
Reference Dealers shall be determined by (i) the selection of five Reference
Dealers by the Calculation Agent (after consultation with the Company) and (ii)
the elimination of the Reference Dealers providing the highest (or, in the event
of equality, one of the highest) and the lowest (or, in the event of equality,
one of the lowest) quotations for such Interest Determination Date. If the
Calculation Agent cannot obtain three such U.S. Treasury Note quotations, the
interest rate for such Interest Determination Date shall be calculated by the
Calculation Agent and shall be a yield to maturity based on the arithmetic
average of the secondary market offer side prices as of approximately 3:30 P.M.,
New York City time, on the Interest Determination Date reported, according to
their written records, by three Reference Dealers in The City of New York,
selected in the manner described above, for U.S. Treasury Notes with an original
<PAGE>
12
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100 million. If only three or four
of such Reference Dealers are quoting as described above, then the interest rate
shall be based on the arithmetic average of the offer side prices so obtained
from all such Reference Dealers, without eliminating the Reference Dealers
providing the highest and the lowest of such quotes. If fewer than three such
Reference Dealers are quoting as described above, then the interest rate shall
be the CMT Rate in effect on such Interest Determination Date. If two such U.S.
Treasury Notes have remaining terms to maturity equally close to the Designated
CMT Maturity Index, the quotes for the U.S. Treasury Note with the shorter
remaining term to maturity shall be used.
"DESIGNATED CMT TELERATE PAGE" means the display on the Dow Jones
Telerate Service on the page set forth on the face hereof (or any other
page as may replace such page on that service for the purpose of displaying
treasury constant maturities as reported in H.15(519)). If no such page is
so specified, the Designated CMT Telerate Page shall be 7052.
"DESIGNATED CMT MATURITY INDEX" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30 years)
specified on the face hereof with respect to which the CMT Rate will be
calculated. If no such maturity is so specified, the Designated CMT
Maturity Index shall be two years.
DETERMINATION OF THE ELEVENTH DISTRICT COST OF FUNDS RATE. If the
Base Rate set forth on the face hereof is the Eleventh District Cost of Funds
Rate this security will bear interest for each Interest Reset Period at the
interest rate calculated with reference to the Eleventh District Cost of Funds
Rate and Spread, Spread Multiple or other formula, if any, set forth on the face
hereof. Unless otherwise set forth on the face hereof, the "ELEVENTH DISTRICT
COST OF FUNDS RATE" means with respect to any Interest Determination Date the
rate equal to the monthly weighted average cost of funds for the month preceding
the Interest Determination Date as displayed on the Telerate Page 7058 by 11:00
A.M., San Francisco time, on the Calculation Date for that Interest
Determination Date under the caption "11th District."
The following procedures will be used if the Eleventh District Cost of
Funds Rate cannot be determined as described above: (i) if the rate is not
displayed on the relevant page by 11:00 A.M., San Francisco time, on the
Calculation Date, then the Eleventh District Cost of Funds Rate will be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District, as announced by the Federal Home Loan
Bank of San Francisco, for the month preceding the date of announcement and
(ii) if no announcement was made relating to the month preceding the Interest
Determination Date, the Eleventh District Cost of Funds Rate will remain the
Eleventh District Cost of Funds Rate then in effect on the Interest
Determination Date.
<PAGE>
13
References herein to "U.S. DOLLARS" or "U.S. $" or "$" are to the
currency of the United States of America.
Section 4. REDEMPTION. If so specified on the face hereof, the
Company may at its option redeem this Security in whole or from time to time
in part in increments of $1,000 (provided that any remaining principal amount
of this Security shall not be less than the minimum authorized denomination
hereof) on or after the date designated as the Initial Redemption Date on the
face hereof at 100% of the unpaid principal amount hereof or the portion
thereof redeemed (or, if this Security is a Discount Security, such lesser
amount as is provided for below) multiplied by the Initial Redemption
Percentage specified on the face hereof, together with accrued interest to
the Redemption Date. Such Initial Redemption Percentage shall decline at
each anniversary of the Initial Redemption Date by an amount equal to the
Annual Redemption Percentage Reduction, if any, specified on the face hereof
until the redemption price is 100% of such amount of the unpaid principal
amount hereof. The Company may exercise such option by causing the Trustee
to mail a notice of such redemption at least 30 but not more than 60 days
prior to the Redemption Date. In the event of redemption of this Security in
part only, a new Security or Securities for the unredeemed portion hereof
shall be issued in the name of the Holder hereof upon the cancellation
hereof. If less than all of the Securities with like tenor and terms to this
Security are to be redeemed, the Securities to be redeemed shall be selected
by the Trustee by such method as the Trustee shall deem fair and appropriate.
However, if less than all the Securities of the series, of which this
Security is a part, 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.
Section 5. REPAYMENT. If so specified on the face hereof, this
Security shall be repayable prior to the Stated Maturity Date at the option of
the Holder on each applicable Optional Repayment Date shown on the face hereof
at a repayment price equal to 100% of the principal amount to be repaid,
together with accrued interest to the Repayment Date. In order for this
Security to be repaid, the Trustee must receive at least 30 but not more than 60
days prior to an Optional Repayment Date, this Security with the form attached
hereto entitled "OPTION TO ELECT REPAYMENT" duly completed. Any tender of this
Security for repayment shall be irrevocable. The repayment option may be
exercised by the Holder of this Security in whole or in part in increments of
$1,000 (provided that any remaining principal amount of this Security shall not
be less than the minimum authorized denomination hereof). Upon any partial
repayment, this Security shall be canceled and a new Security or Securities for
the remaining principal amount hereof shall be issued in the name of the Holder
of this Security.
Section 6. SINKING FUND. Unless otherwise specified on the face
hereof, this Security will not be subject to any sinking fund.
<PAGE>
14
Section 7. DISCOUNT SECURITIES. If this Security (such Security
being referred to as a "DISCOUNT SECURITY") (a) has been issued at an Issue
Price lower, by more than a DE MINIMIS amount (as determined under United States
federal income tax rules applicable to original issue discount instruments),
than the principal amount hereof and (b) would be considered an original issue
discount security for United States federal income tax purposes, then the amount
payable on this Security in the event of redemption by the Company, repayment at
the option of the Holder or acceleration of the maturity hereof, in lieu of the
principal amount due at the Stated Maturity Date hereof, shall be the Amortized
Face Amount (as defined below) of this Security as of the date of such
redemption, repayment or acceleration. The "AMORTIZED FACE AMOUNT" of this
Security shall be the amount equal to the sum of (a) the Issue Price (as set
forth on the face hereof) plus (b) the aggregate of the portions of the original
issue discount (the excess of the amounts considered as part of the "stated
redemption price at maturity" of this Security within the meaning of
Section 1273(a)(2) of the Internal Revenue Code of 1986, as amended (the
"CODE"), whether denominated as principal or interest, over the Issue Price of
this Security) which shall theretofore have accrued pursuant to Section 1272 of
the Code (without regard to Section 1272(a)(7) of the Code) from the date of
issue of this Security to the date of determination, minus (c) any amount
considered as part of the "stated redemption price at maturity" of this Security
which has been paid on this Security from the date of issue to the date of
determination.
Section 8. MODIFICATION AND WAIVERS; OBLIGATION OF THE COMPANY
ABSOLUTE. The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series. Such
amendment may be effected 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 at the time, on behalf of the
Holders of all Outstanding Securities, 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 all Outstanding
Securities of any series to waive on behalf of all of the Holders of Securities
of such series certain past defaults under the Indenture and their consequences.
Any such consent or waiver shall be conclusive and binding upon the Holder of
this Security and upon all future Holders of this Security and of any Security
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
Security.
The Securities are unsecured and rank PARI PASSU with all other
unsecured and unsubordinated indebtedness of the Company.
<PAGE>
15
No reference herein to the Indenture and no provision of this
Security 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 on this Security at the times, place and rate,
and in the Currency herein prescribed.
Section 9. DEFEASANCE AND COVENANT DEFEASANCE. The Indenture contains
provisions for defeasance at any time of (a) the entire indebtedness of the
Company on this Security and (b) certain restrictive covenants and the related
defaults and Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security, unless
otherwise specified on the face hereof.
Section 10. AUTHORIZED DENOMINATIONS. Unless otherwise provided on
the face hereof, this Security is issuable only in registered form without
coupons in denominations of (i) if this Security is a Global Security (as
defined below), $100,000 or any amount in excess thereof which is an integral
multiple of $1,000 or (ii) if this Security is not a Global Security, in
denominations of $25,000 or any amount in excess thereof which is an integral
multiple of $1,000. If this Security is denominated in a Specified Currency
other than U.S. Dollars or is a Discount Security, this Security shall be
issuable in the denominations set forth on the face hereof.
Section 11. REGISTRATION OF TRANSFER. As provided in the Indenture
and subject to certain limitations herein and therein set forth, the transfer of
this Security is registrable in the Security Register upon surrender of this
Security for registration of transfer at a Place of Payment for the series of
Securities of which this Security forms a part, 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 his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
If the registered owner of this Security is the Depository (such a
Security being referred to as a "GLOBAL SECURITY"), and (i) 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 following notice to
the Company, or (ii) an Event of Default occurs, the Company will issue
Securities in certificated form in exchange for this Global Security. In
addition, the Company may at any time, and in its sole discretion, determine
not to have Securities represented by a Global Security and, in such event,
will issue Securities in certificated form in exchange in whole for this
Global Security representing such Security. In any such instance, an owner
of a beneficial interest in this Global Security will be entitled to physical
delivery of Securities in certificated form of Securities equal in principal
amount to such beneficial interest and to have such Securities registered in
its name. Securities so issued in certificated form will be issued in
denominations
<PAGE>
16
of $1,000 (or such other Minimum Denomination specified on the face hereof)
or any amount in excess thereof which is an integral multiple of $1,000 (or
such Minimum Denomination) and will be issued in registered form only,
without coupons.
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 Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
Section 12. EVENTS OF DEFAULT. If an Event of Default with respect to
the Securities of the series of which this Security forms a part shall have
occurred and be continuing, the principal of this Security may be declared due
and payable in the manner and with the effect provided in the Indenture.
Section 13. DEFINED TERMS. All terms used in this Security which are
defined in the Indenture and are not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
Section 14. GOVERNING LAW. Unless otherwise specified on the face
hereof, this Security 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.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the
Company to repay this Security (or the portion thereof specified below),
pursuant to its terms, on the "Repayment Date" first occurring after the date
of receipt of this Security as specified below, at a Repayment Price equal to
100% of the principal amount thereof, together with interest thereon accrued
to the Repayment Date, to the undersigned at:
- -------------------------------------------------------------
- -------------------------------------------------------------
(Please Print or Type Name and Address of the Undersigned.)
FOR THIS OPTION TO ELECT REPAYMENT TO BE EFFECTIVE, THIS SECURITY WITH
THE OPTION TO ELECT REPAYMENT DULY COMPLETED MUST BE RECEIVED AT LEAST 30 BUT
NOT MORE THAN 45 DAYS PRIOR TO THE REPAYMENT DATE (OR, IF SUCH REPAYMENT DATE IS
NOT A BUSINESS DAY, THE NEXT SUCCEEDING BUSINESS DAY) BY THE COMPANY AT ITS
OFFICE OR AGENCY IN THE CITY OF NEW YORK, WHICH WILL BE LOCATED INITIALLY AT THE
OFFICE OF THE TRUSTEE AT 450 WEST 33RD STREET, NEW YORK, NEW YORK 10001-2697.
If less than the entire principal amount of the within Security is to
be repaid, specify the portion thereof (which shall be $1,000 or an integral
multiple thereof) which is to be repaid: $________.
If less than the entire principal amount of the within Security is to
be repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount ($1,000 or any integral multiple of $1,000; PROVIDED that any
remaining principal amount of this Security shall not be less than the minimum
denomination of such Security): $_________.
Dated:
-------
-----------------------------
Note: The signature to this Option to Elect Repayment must
correspond with the name as written upon the face of the within
Security in every particular without alterations or enlargement
or any change whatsoever.
<PAGE>
--------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ............Custodian............
(Cust.) (Minor)
Under Uniform Gifts to Minors Act
.................................
(State)
Additional abbreviations may also be used though not in the above list.
--------------------------
FOR VALUE RECEIVED, the undersigned
hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
| |
- --------------------------------------------------------------------------------
Please print or type name and address, including zip code of assignee
- --------------------------------------------------------------------------------
the within Security of DEERE & COMPANY and all rights thereunder and does hereby
irrevocably constitute and appoint
- --------------------------------------------------------------------------------
Attorney to transfer the said Security on the books of the within-named Company,
with full power of substitution in the premises.
Dated
----------------------------------
SIGNATURE GUARANTEED:
--------------------------------------
- ----------------------------------------------
-----------------------------------------
NOTICE: The signature to this assignment must correspond
with the name as it appears upon the face of the within
Security in every particular, without alteration or
enlargement or any change whatsoever.
<PAGE>
- -------------------------------------------------------------------------------
DEERE & COMPANY
TO
THE BANK OF NEW YORK,
TRUSTEE
----------------------------------------
Indenture
Dated as of March 15, 1999
----------------------------------------
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 March 15, 1999
<TABLE>
<CAPTION>
<S> <C>
TRUST INDENTURE ACT SECTION INDENTURE SECTION
Section 310(a)(1)........................................... 607
(a)(2)........................................... 607
(b).............................................. 608
Section 312(c).............................................. 701
Section 314(a).............................................. 703
(a)(4)........................................... 1005
(c)(1)........................................... 102
(c)(2)........................................... 102
(e).............................................. 102
Section 315(b).............................................. 601
Section 316(a) (last sentence).............................. 101
("Outstanding")
(a)(1)(A)........................................ 502, 512
(a)(1)(B)........................................ 513
(b).............................................. 508
Section 317(a)(1)........................................... 503
(a)(2)........................................... 504
Section 318(a).............................................. 111
(c).............................................. 111
</TABLE>
- --------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
<PAGE>
TABLE OF CONTENTS
<TABLE>
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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
</TABLE>
<PAGE>
ii
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Exchange Rate Agent. . . . . . . . . . . . . . . . . . . . . . .4
Exchange Rate Officer's Certificate. . . . . . . . . . . . . . .5
Foreign Currency . . . . . . . . . . . . . . . . . . . . . . . .5
Government Obligations . . . . . . . . . . . . . . . . . . . . .5
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Indenture. . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Indexed Security . . . . . . . . . . . . . . . . . . . . . . . .6
interest . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Interest Payment Date. . . . . . . . . . . . . . . . . . . . . .6
Market Exchange Rate . . . . . . . . . . . . . . . . . . . . . .6
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
Officers' Certificate. . . . . . . . . . . . . . . . . . . . . .7
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . . . .7
Original Issue Discount Security . . . . . . . . . . . . . . . .7
Outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . .7
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . . . .9
Person . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
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. . . . . . . . . . . . . . . . . . . . . . 10
Security or Securities . . . . . . . . . . . . . . . . . . . . 10
Security Register and Security Registrar . . . . . . . . . . . 10
Senior Indebtedness. . . . . . . . . . . . . . . . . . . . . . 10
Special Record Date. . . . . . . . . . . . . . . . . . . . . . 10
Stated Maturity. . . . . . . . . . . . . . . . . . . . . . . . 10
Trust Indenture Act or TIA . . . . . . . . . . . . . . . . . . 11
Trustee. . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States. . . . . . . . . . . . . . . . . . . . . . . . . 11
United States person . . . . . . . . . . . . . . . . . . . . . 11
Valuation Date . . . . . . . . . . . . . . . . . . . . . . . . 11
Yield to Maturity. . . . . . . . . . . . . . . . . . . . . . . 11
SECTION 102. Compliance Certificates and Opinions . . . . . . . . . . . . . 11
</TABLE>
<PAGE>
iii
<TABLE>
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<S> <C>
SECTION 103. Form of Documents Delivered to Trustee . . . . . . . . . . . . 12
SECTION 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . . . 12
SECTION 105. Notices, etc., to Trustee and Company. . . . . . . . . . . . . 14
SECTION 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . . . 14
SECTION 107. Effect of Headings and Table of Contents . . . . . . . . . . . 15
SECTION 108. Successors and Assigns . . . . . . . . . . . . . . . . . . . . 16
SECTION 109. Separability Clause. . . . . . . . . . . . . . . . . . . . . . 16
SECTION 110. Benefits of Indenture. . . . . . . . . . . . . . . . . . . . . 16
SECTION 111. Governing Law. . . . . . . . . . . . . . . . . . . . . . . . . 16
SECTION 112. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . . . 16
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities. . . . . . . . . . . . . . . . . . . . . . 16
SECTION 202. Form of Trustee's Certificate of Authentication. . . . . . . . 17
SECTION 203. Securities Issuable in Global Form . . . . . . . . . . . . . . 17
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series . . . . . . . . . . . . . 18
SECTION 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . . . 22
SECTION 303. Execution, Authentication, Delivery and Dating . . . . . . . . 23
SECTION 304. Temporary Securities . . . . . . . . . . . . . . . . . . . . . 25
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. . . . . . . . . . . . . . . . . . . . . . . . 32
SECTION 308. Optional Extension of Maturity . . . . . . . . . . . . . . . . 35
SECTION 309. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . . . 36
SECTION 310. Cancellation . . . . . . . . . . . . . . . . . . . . . . . . . 37
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. . . . . . . . . . . . . . . . . . . . . . . . . 42
</TABLE>
<PAGE>
iv
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture. . . . . . . . . . . . 42
SECTION 402. Application of Trust Funds . . . . . . . . . . . . . . . . . . 44
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. . . . . . . . . . . . . . . . . . . . . . . 44
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 . . . . . . . . . . . . . . . 47
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons. . . . . . . . . . . . . . . . . . . . . . . . . . 48
SECTION 506. Application of Money Collected . . . . . . . . . . . . . . . . 48
SECTION 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . . . 50
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest. . . . . . . . . . . . . . . . . . . . . . . . . 50
SECTION 509. Restoration of Rights and Remedies . . . . . . . . . . . . . . 51
SECTION 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . . . 51
SECTION 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . . . 51
SECTION 512. Control by Holders of Securities . . . . . . . . . . . . . . . 51
SECTION 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . . . 52
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. . . . . . . . . . . . . . . . . . . 53
SECTION 603. Not Responsible for Recitals or Issuance of Securities . . . . 54
SECTION 604. May Hold Securities. . . . . . . . . . . . . . . . . . . . . . 54
SECTION 605. Money Held in Trust. . . . . . . . . . . . . . . . . . . . . . 55
</TABLE>
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<TABLE>
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SECTION 606. Compensation and Reimbursement . . . . . . . . . . . . . . . . 55
SECTION 607. Corporate Trustee Required; Eligibility; Conflicting
Interests . . . . . . . . . . . . . . . . . . . . . . . . . . 55
SECTION 608. Resignation and Removal; Appointment of Successor. . . . . . . 56
SECTION 609. Acceptance of Appointment by Successor . . . . . . . . . . . . 57
SECTION 610. Merger, Conversion, Consolidation or Succession to Business. . 58
SECTION 611. Appointment of Authenticating Agent. . . . . . . . . . . . . . 59
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders . . . . . . . . . 61
SECTION 702. Reports by Trustee . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 703. Reports by Company . . . . . . . . . . . . . . . . . . . . . . 61
SECTION 704. Calculation of Original Issue Discount . . . . . . . . . . . . 63
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, etc., Only on Certain Terms . . . . . 63
SECTION 802. Successor Person Substituted . . . . . . . . . . . . . . . . . 63
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders . . . . . . 64
SECTION 902. Supplemental Indentures with Consent of Holders. . . . . . . . 65
SECTION 903. Execution of Supplemental Indentures . . . . . . . . . . . . . 67
SECTION 904. Effect of Supplemental Indentures. . . . . . . . . . . . . . . 67
SECTION 905. Conformity with Trust Indenture Act. . . . . . . . . . . . . . 67
SECTION 906. Reference in Securities to Supplemental Indentures . . . . . . 67
SECTION 907. Effect on Senior Indebtedness. . . . . . . . . . . . . . . . . 67
</TABLE>
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ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest. . . . . . . . . . 68
SECTION 1002. Maintenance of Office or Agency . . . . . . . . . . . . . . . 68
SECTION 1003. Money for Securities Payments to Be Held in Trust . . . . . . 70
SECTION 1004. Additional Amounts. . . . . . . . . . . . . . . . . . . . . . 71
SECTION 1005. Statement as to Compliance. . . . . . . . . . . . . . . . . . 72
SECTION 1006. Waiver of Certain Covenants . . . . . . . . . . . . . . . . . 72
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. . . . . . . . . . . . . . . . . . . 72
SECTION 1102. Election to Redeem; Notice to Trustee . . . . . . . . . . . . 73
SECTION 1103. Selection by Trustee of Securities to Be Redeemed . . . . . . 73
SECTION 1104. Notice of Redemption. . . . . . . . . . . . . . . . . . . . . 73
SECTION 1105. Deposit of Redemption Price . . . . . . . . . . . . . . . . . 75
SECTION 1106. Securities Payable on Redemption Date . . . . . . . . . . . . 75
SECTION 1107. Securities Redeemed in Part . . . . . . . . . . . . . . . . . 76
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. . . . . . . . . . . . . . . . . . . 76
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities . . . . 77
SECTION 1203. Redemption of Securities for Sinking Fund . . . . . . . . . . 78
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. . . . . . . . . . . . . . . . . . . 78
SECTION 1302. Repayment of Securities . . . . . . . . . . . . . . . . . . . 78
SECTION 1303. Exercise of Option. . . . . . . . . . . . . . . . . . . . . . 78
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable . . . . . . . . . . . . . . . . . . . . . . . . 79
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SECTION 1305. Securities Repaid in Part . . . . . . . . . . . . . . . . . . 80
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance. . . . . . . . . . . . . . 80
SECTION 1402. Defeasance and Discharge. . . . . . . . . . . . . . . . . . . 80
SECTION 1403. Covenant Defeasance . . . . . . . . . . . . . . . . . . . . . 81
SECTION 1404. Conditions to Defeasance or Covenant Defeasance . . . . . . . 81
SECTION 1405. Deposited Money and Government Obligations to Be Held in
Trust; Other Miscellaneous Provisions. . . . . . . . . . . . 83
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called . . . . . . . . . . 84
SECTION 1502. Call, Notice and Place of Meetings. . . . . . . . . . . . . . 84
SECTION 1503. Persons Entitled to Vote at Meetings. . . . . . . . . . . . . 85
SECTION 1504. Quorum; Action. . . . . . . . . . . . . . . . . . . . . . . . 85
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment of
Meetings . . . . . . . . . . . . . . . . . . . . . . . . . . 86
SECTION 1506. Counting Votes and Recording Action of Meetings . . . . . . . 87
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Agreement to Subordinate. . . . . . . . . . . . . . . . . . . 88
SECTION 1602. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities . . . . . . . . . 88
SECTION 1603. No Payment on Securities in Event of Default on Senior
Indebtedness. . . . . . . . . . . . . . . . . . . . . . . . 90
SECTION 1604. Payments on Securities Permitted. . . . . . . . . . . . . . . 90
SECTION 1605. Authorization of Holders to Trustee to Effect Subordination . 90
SECTION 1606. Notices to Trustee. . . . . . . . . . . . . . . . . . . . . . 90
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SECTION 1607. Trustee as Holder of Senior Indebtedness. . . . . . . . . . . 91
SECTION 1608. Modifications of Terms of Senior Indebtedness . . . . . . . . 91
SECTION 1609. Reliance on Judicial Order or Certificate of Liquidating
Agent . . . . . . . . . . . . . . . . . . . . . . . . . . . 91
TESTIMONIUM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
SIGNATURE AND SEALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93
ACKNOWLEDGEMENTS
EXHIBIT A - FORMS OF CERTIFICATION
</TABLE>
<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 New York Banking corporation, 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
<PAGE>
2
the terms "cash transaction" and "self-liquidating paper", as used in
TIA Section 311, shall have the meanings assigned to them in the rules
of the Commission adopted under the Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles; and
(4) the words "herein", "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article Three, Article Five and
Article Six, are defined in those Articles.
"ACT", when used with respect to any Holder, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"AFFILIATE" of any specified Person means any other Person directly
or indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any authenticating agent appointed by
the Trustee pursuant to Section 611.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"BEARER SECURITY" means any Security established pursuant to Section
201 which is payable to bearer.
<PAGE>
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.
<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 101 Barclay Street,
New York, New York 10286.
"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
<PAGE>
6
provisions hereof and shall include the terms of the or those particular
series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is
not Trustee, regardless of when such terms or provisions were adopted, and
exclusive of any provisions or terms adopted by means of one or more
indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a
party.
"INDEXED SECURITY" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are determined
by reference to prices, changes in prices, or differences between prices, of
securities, Currencies, intangibles, goods, articles or commodities or by such
other objective price, economic or other measures as are specified in Section
301 hereof.
"INTEREST", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1004,
includes such Additional Amounts.
"INTEREST PAYMENT DATE", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"MARKET EXCHANGE RATE" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon buying rate for such Foreign Currency for
cable transfers quoted in New York City as certified for customs purposes by the
Federal Reserve Bank of New York and (iii) for any conversion of one Foreign
Currency into Dollars or another Foreign Currency, the spot rate at noon local
time in the relevant market at which, in accordance with normal banking
procedures, the Dollars or Foreign Currency into which conversion is being made
could be purchased with the Foreign Currency from which conversion is being made
from major banks located in either New York City, London or any other principal
market for Dollars or such purchased Foreign Currency, in each case determined
by the Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any of
the exchange rates provided for in the foregoing clauses (i), (ii) and (iii),
the Exchange Rate Agent shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York as of the
most recent available date, or quotations from one or more major banks in New
York City, London or other principal market for such currency or currency unit
in question, or such other quotations as the Exchange Rate Agent shall deem
<PAGE>
7
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
more than one market for dealing in any currency or currency unit by reason of
foreign exchange regulations or otherwise, the market to be used in respect of
such currency or currency unit shall be that upon which a nonresident issuer of
securities designated in such currency or currency unit would purchase such
currency or currency unit in order to make payments in respect of such
securities.
"MATURITY", when used with respect to any Security, means the date
on which the principal of such Security or an installment of principal becomes
due and payable as therein or herein provided, whether at the Stated Maturity or
by declaration of acceleration, notice of redemption, notice of option to elect
repayment, notice of exchange or conversion or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the Chairman,
the President or any Vice President and by the Treasurer, an Assistant
Treasurer, the Comptroller or an Assistant Comptroller, the Secretary or an
Assistant Secretary of the Company, and delivered to the Trustee.
"OPINION OF COUNSEL" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for the
Company not unsatisfactory to the Trustee.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"OUTSTANDING", when used with respect to Securities, means, as of
the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company) in trust or set aside and segregated in trust by
the Company (if the Company shall act as its own Paying Agent) for the
Holders of such Securities and any coupons appertaining thereto, PROVIDED
that, if such Securities are to be redeemed, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
<PAGE>
8
(iii) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance and/or
covenant defeasance as provided in Article Fourteen; and
(iv) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders for quorum purposes, and for the purpose of
making the calculations required by TIA Section 313, (i) the principal amount
of an Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for
such purpose shall be equal to the amount of principal thereof that would be
(or shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security
denominated in a Foreign Currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such
purpose shall be equal to the Dollar equivalent, determined as of the date
such Security is originally issued by the Company as set forth in an Exchange
Rate Officer's Certificate delivered to the Trustee, of the principal amount
(or, in the case of an Original Issue Discount Security or Indexed Security,
the Dollar equivalent as of such date of original issuance of the amount
determined as provided in clause (i) above or (iii) below, respectively) of
such Security, (iii) the principal amount of any Indexed Security that may be
counted in making such determination or calculation and that shall be deemed
outstanding for such purpose shall be equal to the principal face amount of
such Indexed Security at original issuance, unless otherwise provided with
respect to such Security pursuant to Section 301, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor shall be disregarded and deemed not to
be Outstanding, except that, in determining whether the Trustee shall be
protected in making such calculation or in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which a Responsible Officer of 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.
<PAGE>
9
"PAYING AGENT" means any Person authorized by the Company to pay the
principal of (or premium, if any) or interest, if any, on any Securities or
coupons on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities of or
within any series, means the place or places where the principal of (and
premium, if any) and interest, if any, on such Securities are payable as
specified and as contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"REDEMPTION DATE", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGISTERED SECURITY" shall mean any Security which is registered in
the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"REPAYMENT DATE" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any Security to
be repaid at the option of the Holder, the price at which it is to be repaid by
or pursuant to this Indenture.
<PAGE>
10
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means the chairman or vice-chairman of the board of directors, the chairman
or vice-chairman of the executive committee of the board of directors, the
president, any vice president, any assistant vice president, the secretary,
any assistant secretary, the treasurer, any assistant treasurer, the cashier,
any assistant cashier, any trust officer or assistant trust officer, the
controller and any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; PROVIDED,
HOWEVER, that, if at any time there is more than one Person acting as Trustee
under this Indenture, "Securities" with respect to the Indenture as to which
such Person is Trustee shall have the meaning stated in the first recital of
this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any
series as to which such Person is not Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the respective
meanings specified in Section 305.
"SENIOR INDEBTEDNESS" means the principal of (and premium, if any)
and unpaid interest on (a) indebtedness of the Company (including indebtedness
of others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed (other
than the 5-1/2% Convertible Subordinated Debentures due 2001 of the Company and
the indebtedness evidenced by the Securities outstanding on the date hereof or
thereafter created), unless in the instrument creating or evidencing the same or
pursuant to which the same is outstanding it is provided that such indebtedness
is not senior or prior in right of payment to the Securities, and (b) renewals,
extensions, modifications and refundings of any such indebtedness. The
Securities are neither senior or prior nor junior or subordinate in right of
payment to the 5-1/2% Convertible Subordinated Debentures due 2001 of the
Company.
"SPECIAL RECORD DATE" for the payment of any Defaulted Interest on
the Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
<PAGE>
11
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"UNITED STATES" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"UNITED STATES PERSON" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"VALUATION DATE" has the meaning specified in Section 312(c).
"YIELD TO MATURITY" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. COMPLIANCE CERTIFICATES AND OPINIONS. Upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1005) shall include:
(1) a statement that each individual signing such certificate or
opinion has read such condition or covenant and the definitions herein
relating thereto;
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12
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he
has made such examination or investigation as is necessary to enable him
to express an informed opinion as to whether or not such condition or
covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case
where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may certify or
give an opinion as to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
as to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 104. ACTS OF HOLDERS. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by agents duly appointed in writing. If Securities of
a series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced
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13
by the record of Holders of Securities of such series voting in favor
thereof, either in person or by proxies duly appointed in writing, at any
meeting of Holders of Securities of such series duly called and held in
accordance with the provisions of Article Fifteen, or a combination of such
instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or instruments
and any such record (and the action embodied therein and evidenced thereby)
are herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments or so voting at any such meeting. Proof of
execution of any such instrument or of a writing appointing any such agent,
or of the holding by any Person of a Security, shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company and any agent of the Trustee or the Company, if made in the manner
provided in this Section. The record of any meeting of Holders of Securities
shall be proved in the manner provided in Section 1506.
(b) The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may be proved in any
manner which the Trustee deems reasonably sufficient.
(c) The ownership of Registered Securities shall be proved by the
Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The ownership of Bearer
Securities may also be proved in any other manner that the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of
Registered Securities any request, demand, authorization, direction, notice,
consent, waiver or other Act, the Company may, at its option, in or pursuant
to a Board Resolution, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction,
notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA Section 316(c), such record date
shall be the record date specified
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14
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 or by telecopy (promptly confirmed in writing) to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust Office
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
<PAGE>
15
notice with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as provided
herein. Any notice mailed to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder, whether or not
such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular mail
service or by reason of any other cause it shall be impracticable to give such
notice by mail, then such notification to Holders of Registered Securities as
shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event,
such notice shall be sufficiently given if published in an Authorized
Newspaper in The City of New York and in such other city or cities as may be
specified in such Securities on a Business Day, such publication to be not
later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. Any such notice shall be deemed to
have been given on the date of such publication or, if published more than
once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall
be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
notice to such Holders for every purpose hereunder. Neither the failure to
give notice by publication to Holders of Bearer Securities as provided above,
nor any defect in any notice so published, shall affect the sufficiency of
such notice with respect to other Holders of Bearer Securities or the
sufficiency of any notice to Holders of Registered Securities given as
provided herein.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of
the country of publication.
Where this Indenture provides for notice in any manner, such notice
may be waived in writing by the Person entitled to receive such notice, either
before or after the event, and such waiver shall be the equivalent of such
notice. Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
SECTION 107. EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article
and Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
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16
SECTION 108. SUCCESSORS AND ASSIGNS. All covenants and agreements
in this Indenture by the Company shall bind its successors and assigns, whether
so expressed or not.
SECTION 109. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. BENEFITS OF INDENTURE. Nothing in this Indenture or
in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. GOVERNING LAW. This Indenture and the Securities and
coupons shall be governed by and construed in accordance with the law of the
State of New York without regard to principles of conflicts of laws. This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. LEGAL HOLIDAYS. In any case where any Interest
Payment Date, Redemption Date, Repayment Date, sinking fund payment date, Stated
Maturity or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series which
specifically states that such provision shall apply in lieu of this Section),
payment of principal (or premium, if any) or interest, if any, need not be made
at such Place of Payment on such date, but may be made on the next succeeding
Business Day at such Place of Payment with the same force and effect as if made
on the Interest Payment Date, Redemption Date, Repayment Date or sinking fund
payment date, or at the Stated Maturity or Maturity; PROVIDED that no interest
shall accrue on the amount so payable for the period from and after such
Interest Payment Date, Redemption Date, Repayment Date, sinking fund payment
date, Stated Maturity or Maturity, as the case may be.
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17
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 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
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18
Securities of such series represented thereby may from time to time be
increased or decreased to reflect exchanges. Any endorsement of a Security
in global form to reflect the amount, or any increase or decrease in the
amount, of Outstanding Securities represented thereby shall be made by the
Trustee in such manner and upon instructions given by such Person or Persons
as shall be specified therein or in the Company Order to be delivered to the
Trustee pursuant to Section 303 or 304. Subject to the provisions of Section
303 and, if applicable, Section 304, the Trustee shall deliver and redeliver
any Security in permanent global form in the manner and upon instructions
given by the Person or Persons specified therein or in the applicable Company
Order. If a Company Order pursuant to Section 303 or 304 has been, or
simultaneously is, delivered, any instructions by the Company with respect to
endorsement, delivery or redelivery of a Security in global form shall be in
writing but need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel.
The provisions of the last sentence of Section 303 shall apply to
any Security represented by a Security in global form if such Security was
never issued and sold by the Company and the Company delivers to the Trustee
the Security in global form together with written instructions (which need
not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) with regard to the reduction in the principal amount of Securities
represented thereby, together with the written statement contemplated by the
last sentence of Section 303.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if any, on any Security in permanent global
form shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Trustee and any agent
of the Company and the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security
(i) in the case of a permanent global Security in registered form, the Holder
of such permanent global Security in registered form, or (ii) in the case of
a permanent global Security in bearer form, Euroclear or CEDEL.
ARTICLE THREE
THE SECURITIES
SECTION 301. AMOUNT UNLIMITED; ISSUABLE IN SERIES. The
aggregate principal amount of Securities which may be authenticated and
delivered under this Indenture is unlimited. The Securities shall be
subordinated in right of payment to Senior Indebtedness as provided in
Article Sixteen.
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19
The Securities shall rank equally and PARI PASSU and may be
issued in one or more series. There shall be established in one or more
Board Resolutions or pursuant to authority granted by one or more Board
Resolutions and, subject to Section 303, set forth, or determined in the
manner provided, in an Officers' Certificate, or established in one or more
indentures supplemental hereto, prior to the issuance of Securities of any
series, any or all of the following, as applicable (each of which (except for
the matters set forth in clauses (1), (2) and (15) below), if so provided,
may be determined from time to time by the Company with respect to unissued
Securities of the series when issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) the date or dates, or the method by which such date or dates
will be determined or extended, on which the principal of the Securities
of the series shall be payable;
(4) the rate or rates at which the Securities of the series shall
bear interest, if any, or the method by which such rate or rates shall be
determined, the date or dates from which such interest shall accrue or the
method by which such date or dates shall be determined, the Interest
Payment Dates on which such interest will be payable and the Regular
Record Date, if any, for the interest payable on any Registered Security
on any Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which such interest shall be calculated if
other than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition to the
Borough of Manhattan, The City of New York, where the principal of (and
premium, if any) and interest, if any, on Securities of the series shall
be payable, any Registered Securities of the series may be surrendered for
registration of transfer, Securities of the series may be surrendered for
exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as applicable,
and where notices or demands to or upon the Company in respect of the
Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices at
which, the Currency or Currencies in which, and other terms and conditions
upon which Securities
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20
of the series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have the option;
(7) the obligation, if any, of the Company to redeem, repay or
purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or prices
at which, the Currency or Currencies in which, and other terms and
conditions upon which Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other than
denominations of $5,000, the denominations or denominations in which any
Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion of
the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(11) if other than Dollars, the Currency or Currencies in which
payment of the principal of (or premium, if any) or interest, if any, on
the Securities of the series shall be made or in which the Securities of
the series shall be denominated and the particular provisions applicable
thereto in accordance with, in addition to or in lieu of any of the
provisions of Section 312;
(12) whether the amount of payments of principal of (or premium,
if any) or interest, if any, on the Securities of the series may be
determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or interest, if
any, on the Securities of the series are to be payable, at the election of
the Company or a Holder thereof, in one or more Currencies other than that
in which such Securities are denominated or stated to be payable, the
period or periods within which (including the Election Date), and the
terms and conditions upon which, such election may be made, and the time
and manner of determining the exchange rate between the Currency or
Currencies in which such Securities are denominated or stated to be
payable and the
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21
Currency or Currencies in which such Securities are to be paid, in each
case in accordance with, in addition to or in lieu of any of the
provisions of Section 312;
(14) provisions, if any, granting special rights to the Holders of
Securities of the series upon the occurrence of such events as may be
specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section 1006) of
the Company with respect to Securities of the series, whether or not such
Events of Default or covenants are consistent with the Events of Default
or covenants set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided
in Section 305, and, if Registered Securities of the series are to be
issuable as a global Security, the identity of the depository for such
series;
(17) the date as of which any Bearer Securities of the series and
any temporary global Security representing Outstanding Securities of the
series shall be dated if other than the date of original issuance of the
first Security of the series to be issued;
(18) the Person to whom any interest on any Registered Security of
the series shall be payable, if other than the Person in whose name such
Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest, the manner
in which, or the Person to whom, any interest on any Bearer Security of
the series shall be payable, if otherwise than upon presentation and
surrender of the coupons appertaining thereto as they severally mature,
and the extent to which, or the manner in which, any interest payable on a
temporary global Security on an Interest Payment Date will be paid if
other than in the manner provided in Section 304;
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22
(19) the applicability, if any, of Sections 1402 and/or 1403 to
the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(21) whether, under what circumstances and the Currency in which,
the Company will pay Additional Amounts as contemplated by Section 1004 on
the Securities of the series to any Holder who is not a United States
person (including any modification to the definition of such term) in
respect of any tax, assessment or governmental charge and, if so, whether
the Company will have the option to redeem such Securities rather than pay
such Additional Amounts (and the terms of any such option);
(22) the designation of the initial Exchange Rate Agent, if any;
(23) if the Securities of the series are to be convertible into or
exchangeable for any securities of any Person (including the Company), the
terms and conditions upon which such Securities of the series will be so
convertible or exchangeable; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirements of
the Trust Indenture Act).
All Securities of any one series and the coupons appertaining to any
Bearer Securities of such series shall be substantially identical except, in the
case of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303) and
set forth in such Officers' Certificate or in any such indenture supplemental
hereto. All Securities of any one series need not be issued at the same time
and, unless otherwise provided, a series may be reopened, without the consent of
the Holders, for issuances of additional Securities of such series.
If any of the terms of the Securities of any series are established
by action taken pursuant to one or more Board Resolutions, a copy of an
appropriate record of such action(s) shall be certified by the Secretary or an
Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers' Certificate setting forth the terms of the
Securities of such series.
SECTION 302. DENOMINATIONS. The Securities of each series shall be
issuable in such denominations as shall be specified as contemplated by Section
301. With
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23
respect to Securities of any series denominated in Dollars, in the absence of
any such provisions with respect to the Securities of any series, the
Registered Securities of such series, other than Registered Securities issued
in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The
Securities and any coupons appertaining thereto shall be executed on behalf of
the Company by its Chairman, its President or one of its Vice Presidents, under
its corporate seal reproduced thereon, and attested by its Secretary or one of
its Assistant Secretaries. The signature of any of these officers on the
Securities and coupons may be manual or facsimile signatures of the present or
any future such authorized officer and may be imprinted or otherwise reproduced
on the Securities.
Securities or coupons bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased to
hold such offices prior to the authentication and delivery of such Securities
or did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, together
with any coupon appertaining thereto, executed by the Company, to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been
<PAGE>
24
detached and cancelled. If all the Securities of any series are not to be
issued at one time and if the Board Resolution or supplemental indenture
establishing such series shall so permit, such Company Order may set forth
procedures acceptable to the Trustee for the issuance of such Securities and
determining the terms of particular Securities of such series, such as
interest rate, maturity date, date of issuance and date from which interest
shall accrue. In authenticating such Securities, and accepting the
additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to TIA
Section 315(a) through 315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating,
(a) that the form or forms of such Securities and any
coupons have been established in conformity with the provisions of
this Indenture;
(b) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions and
executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and
issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute legal, valid
and binding obligations of the Company, enforceable in accordance
with their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general applicability
relating to or affecting the enforcement of creditors' rights, to
general equitable principles and to such other qualifications as
such counsel shall conclude do not materially affect the rights of
Holders of such Securities and any coupons; and
(ii) an Officers' Certificate stating, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
Notwithstanding the provisions of Section 301 and of this Section
303, if all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order, Opinion of Counsel or Officers'
Certificate otherwise required pursuant to the preceding paragraph at the time
of issuance of each Security of such series, but such order, opinion and
certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
<PAGE>
25
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 officer, and such certificate
upon any Security shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered hereunder and is entitled to
the benefits of this Indenture. Notwithstanding the foregoing, if any Security
shall have been authenticated and delivered hereunder but never issued and sold
by the Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. TEMPORARY SECURITIES. (a) Pending the preparation of
definitive Securities of any series, the Company may execute, and upon Company
Order the Trustee shall authenticate and deliver, temporary Securities which are
printed, lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Securities
in lieu of which they are issued, in registered form, or, if authorized, in
bearer form with one or more coupons or without coupons, and with such
appropriate insertions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as conclusively evidenced by
their execution of such Securities. In the case of Securities of any series,
such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with Section 304(b) or as otherwise provided in
or pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall
<PAGE>
26
be exchangeable for definitive Securities of such series upon surrender of
the temporary Securities of such series at the office or agency of the
Company in a Place of Payment for that series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities of
any series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a like principal amount of definitive Securities of the
same series of authorized denominations; PROVIDED, HOWEVER, that no
definitive Bearer Security shall be delivered in exchange for a temporary
Registered Security; and PROVIDED FURTHER that a definitive Bearer Security
shall be delivered in exchange for a temporary Bearer Security only in
compliance with the conditions set forth in Section 303. Until so exchanged,
the temporary Securities of any series shall in all respects be entitled to
the same benefits under this Indenture as definitive Securities of such
series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear and
CEDEL, for credit to the respective accounts of the beneficial owners of such
Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary global
Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such purpose, to be
exchanged, in whole or from time to time in part, for definitive Securities
without charge, and the Trustee shall authenticate and deliver, in exchange for
each portion of such temporary global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to be
exchanged. The definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered form, permanent
global bearer form or permanent global registered form, or any combination
thereof, as specified as contemplated by Section 301, and, if any combination
thereof is so specified, as requested by the beneficial owner thereof; PROVIDED,
HOWEVER, that, unless otherwise specified in such temporary global Security,
upon such presentation by the Common Depositary, such temporary global Security
is accompanied by a certificate dated the Exchange Date or a subsequent date and
signed by Euroclear as to the portion of such temporary global Security held for
its account then to be exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by CEDEL as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this
<PAGE>
27
Indenture or in such other form as may be established pursuant to Section
301; and PROVIDED FURTHER that definitive Bearer Securities shall be
delivered in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security, the
interest of a beneficial owner of Securities of a series in a temporary global
Security shall be exchanged for definitive Securities of the same series and of
like tenor following the Exchange Date when the account holder instructs
Euroclear or CEDEL, as the case may be, to request such exchange on his behalf
and delivers to Euroclear or CEDEL, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15 days prior to the
Exchange Date, copies of which certificate shall be available from the offices
of Euroclear and CEDEL, the Trustee, any Authenticating Agent appointed for such
series of Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of charge to the
beneficial owners of such temporary global Security, except that a Person
receiving definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such definitive
Securities in person at the offices of Euroclear or CEDEL. Definitive
Securities in bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and CEDEL on
such Interest Payment Date upon delivery by Euroclear and CEDEL to the Trustee
of a certificate or certificates in the form set forth in Exhibit A-2 to this
Indenture (or in such other forms as may be established pursuant to Section
301), for credit without further interest on or after such Interest Payment Date
to the respective accounts of Persons who are the beneficial owners of such
temporary global Security on such Interest Payment Date and who have each
delivered to Euroclear or CEDEL, as the case may be, a certificate dated no
earlier than 15 days prior to the Interest Payment Date occurring prior to such
Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such
other forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made pursuant to
this paragraph shall satisfy the certification requirements of the preceding two
paragraphs of this Section 304(b) and of the third paragraph of Section 303 of
this Indenture and the interests of the Persons who are the beneficial owners of
the temporary global Security with respect to which such certification was made
will be exchanged for definitive Securities of the same series and of like tenor
on the Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or
<PAGE>
28
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
<PAGE>
29
of the Bearer Securities to be exchanged at any such office or agency, with
all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any
such unmatured coupon or coupons or matured coupon or coupons in default, any
such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee
if there is furnished to them such security or indemnity as they may require
to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to any Paying Agent any such missing coupon
in respect of which such a payment shall have been made, such Holder shall be
entitled to receive the amount of such payment; PROVIDED, HOWEVER, that,
except as otherwise provided in Section 1002, interest represented by coupons
shall be payable only upon presentation and surrender of those coupons at an
office or agency located outside the United States. Notwithstanding the
foregoing, in case a Bearer Security of any series is surrendered at any such
office or agency in a permitted exchange for a Registered Security of the
same series and like tenor after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this paragraph. If any beneficial owner of an interest in a
permanent global Security is entitled to exchange such interest for Securities
of such series and of like tenor and principal amount of another authorized form
and denomination, as specified as contemplated by Section 301 and provided that
any applicable notice provided in the permanent global Security shall have been
given, then without unnecessary delay but in any event not later than the
earliest date on which such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount equal
to the principal amount of such beneficial owner's interest in such permanent
global Security, executed by the Company. On or after the earliest date on
which such interests may be so exchanged, such permanent global Security shall
be surrendered by the Common Depositary or such other depositary as shall be
specified
<PAGE>
30
in the Company Order with respect thereto to the Trustee, as the Company's
agent for such purpose, to be exchanged, in whole or from time to time in
part, for definitive Securities without charge and the Trustee shall
authenticate and deliver, in exchange for each portion of such permanent
global Security, an equal aggregate principal amount of definitive Securities
of the same series of authorized denominations and of like tenor as the
portion of such permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be
in the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; PROVIDED,
HOWEVER, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities to be redeemed
and ending on the relevant Redemption Date if the Security for which exchange
is requested may be among those selected for redemption; and PROVIDED FURTHER
that no Bearer Security delivered in exchange for a portion of a permanent
global Security shall be mailed or otherwise delivered to any location in the
United States. If a Registered Security is issued in exchange for any
portion of a permanent global Security after the close of business at the
office or agency where such exchange occurs on (i) any Regular Record Date
and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening
of business at such office or agency on the related proposed date for payment
of Defaulted Interest, interest or Defaulted Interest, as the case may be,
will not be payable on such Interest Payment Date or proposed date for
payment, as the case may be, in respect of such Registered Security, but will
be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion
of such permanent global Security is payable in accordance with the
provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange
of Securities shall be valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration
of transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Securities, but the Company may require payment of a sum sufficient
to cover any tax or other governmental charge that may be imposed in connection
with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
<PAGE>
31
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before selection of the Securities to be redeemed under Section 1103 and
ending at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, PROVIDED that such Registered Security shall be simultaneously
surrendered for redemption, or (iv) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
SECTION 306. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If
any mutilated Security or a Security with a mutilated coupon appertaining to it
is surrendered to the Trustee or the Company, together with, in proper cases,
such security or indemnity as may be required by the Company or the Trustee to
save each of them or any agent of either of them harmless, the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to the surrendered
Security.
If there shall be delivered to the Company and to the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (ii) such security or indemnity as may be required by them to
save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding the provisions of the previous two paragraphs, in
case any such mutilated, destroyed, lost or stolen Security or coupon has become
or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with
<PAGE>
32
coupons corresponding to the coupons, if any, appertaining to such mutilated,
destroyed, lost or stolen Security or to the Security to which such
mutilated, destroyed, lost or stolen coupon appertains, pay such Security or
coupon; PROVIDED, HOWEVER, that payment of principal of (and premium, if any)
and interest, if any, on Bearer Securities shall, except as otherwise
provided in Section 1002, be payable only at an office or agency located
outside the United States and, unless otherwise specified as contemplated by
Section 301, any interest on Bearer Securities shall be payable only upon
presentation and surrender of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued
pursuant to this Section in lieu of any destroyed, lost or stolen Security, or
in exchange for a Security to which a destroyed, lost or stolen coupon
appertains, shall constitute an original additional contractual obligation of
the Company, whether or not the destroyed, lost or stolen Security and its
coupons, if any, or the destroyed, lost or stolen coupon shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED;
OPTIONAL INTEREST RESET. (a) Except as otherwise specified with respect to a
series of Securities in accordance with the provisions of Section 301, interest,
if any, on any Registered Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest at the
office or agency of the Company maintained for such purpose pursuant to Section
1002; PROVIDED, HOWEVER, that each installment of interest, if any, on any
Registered Security may at the Company's option be paid by (i) mailing a check
for such interest, payable to or upon the written order of the Person entitled
thereto pursuant to Section 309, to the address of such Person as it appears on
the Security Register or (ii) transfer to an account maintained by the payee
inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer
<PAGE>
33
Security, by transfer to an account maintained by the payee with a bank
located outside the United States.
Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and CEDEL with respect
to that portion of such permanent global Security held for its account by the
Common Depositary, for the purpose of permitting each of Euroclear and CEDEL to
credit the interest, if any, received by it in respect of such permanent global
Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular Record
Date and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called "Defaulted Interest")
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at the
close of business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Registered Security of such series
and the date of the proposed payment (which shall not be less than 20 days
after such notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the Currency
in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series and
except, if applicable, as provided in Sections 312(b), 312(d) and 312(e))
equal to the aggregate amount proposed to be paid in respect of such
Defaulted Interest or shall make arrangements satisfactory to the Trustee
for such deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon
<PAGE>
34
the Trustee shall fix a Special Record Date for the payment of such
Defaulted Interest which shall be not more than 15 days and not less than
10 days prior to the date of the proposed payment and not less than 10
days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special
Record Date and, in the name and at the expense of the Company, shall
cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to
each Holder of Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been mailed as
aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such
Special Record Date and shall no longer be payable pursuant to the
following clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such series
in exchange for a Registered Security of such series after the close of
business at such office or agency on any Special Record Date and before
the opening of business at such office or agency on the related proposed
date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of payment
and Defaulted Interest will not be payable on such proposed date of
payment in respect of the Registered Security issued in exchange for such
Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest on the
Registered Securities of any series in any other lawful manner not
inconsistent with the requirements of any securities exchange on which
such Securities may be listed, and upon such notice as may be required by
such exchange, if, after notice given by the Company to the Trustee of the
proposed payment pursuant to this clause, such manner of payment shall be
deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made applicable
to any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 45 but not more
than 60 days prior to an Optional Reset Date for such Security. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if
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35
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).
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
<PAGE>
36
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.
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.
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37
Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect to
such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 310. CANCELLATION. All Securities and coupons
surrendered for payment, redemption, repayment at the option of the Holder,
registration of transfer or exchange or for credit against any sinking fund
payment shall, if surrendered to any Person other than the Trustee, be
delivered to the Trustee, and any such Securities and coupons and Securities
and coupons surrendered directly to the Trustee for any such purpose shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and
may deliver to the Trustee (or to any other Person for delivery to the
Trustee) for cancellation any Securities previously authenticated hereunder
which the Company has not issued and sold, and all Securities so delivered
shall be promptly cancelled by the Trustee. If the Company shall so acquire
any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation.
No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by the
Trustee shall be destroyed by the Trustee and the Trustee shall deliver a
certificate of such destruction to the Company, unless by a Company Order the
Company directs their return to it.
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38
SECTION 311. COMPUTATION OF INTEREST. Except as otherwise
specified as contemplated by Section 301 with respect to Securities of any
series, interest, if any, on the Securities of each series shall be computed on
the basis of a 360-day year consisting of twelve 30-day months.
SECTION 312. CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF
SECURITIES. (a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in paragraph (b) below or the Holders of
which have not made the election provided for in paragraph (b) below, and with
respect to Bearer Securities of any series, except as provided in paragraph (d)
below, payment of the principal of (and premium, if any) and interest, if any,
on any Registered or Bearer Security of such series will be made in the Currency
in which such Registered Security or Bearer Security, as the case may be, is
payable. The provisions of this Section 312 may be modified or superseded with
respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee for such series of Registered
Securities (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change of
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article
Four or Fourteen or with respect to which a notice of redemption has been given
by the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder of any such Registered Security who
shall not have delivered any such election to the Trustee of such series of
Registered Securities not later than the close of business on the applicable
Election Date will be paid the amount due on the applicable payment date in the
relevant Currency as provided in Section 312(a). The Trustee for each such
series of Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
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39
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301, then, unless otherwise specified pursuant to Section 301, not later
than the fourth Business Day after the Election Date for each payment date for
Registered Securities of any series, the Exchange Rate Agent will deliver to the
Company a written notice specifying the Currency in which Registered Securities
of such series are payable, the respective aggregate amounts of principal of
(and premium, if any) and interest, if any, on the Registered Securities to be
paid on such payment date, specifying the amounts in such Currency so payable in
respect of the Registered Securities as to which the Holders of Registered
Securities denominated in any Currency shall have elected to be paid in another
Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301 and if at
least one Holder has made such election, then, unless otherwise specified
pursuant to Section 301, on the second Business Day preceding such payment date
the Company will deliver to the Trustee for such series of Registered Securities
an Exchange Rate Officer's Certificate in respect of the Dollar or Foreign
Currency or Currencies payments to be made on such payment date. Unless
otherwise specified pursuant to Section 301, the Dollar or Foreign Currency or
Currencies amount receivable by Holders of Registered Securities who have
elected payment in a Currency as provided in paragraph (b) above shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any, on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee of each
such series of Securities and by such Trustee or any Paying Agent to the Holders
of such Securities with respect to such payment date shall be, in the case of a
Foreign Currency other than a currency unit, the Dollar Equivalent of the
Foreign Currency or, in the case of a currency unit, the Dollar Equivalent of
the Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such
<PAGE>
40
election, such Holder shall receive payment in Dollars as provided in
paragraph (d) of this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms shall
have the following meanings:
A "COMPONENT CURRENCY" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency
unit, including, but not limited to, the ECU.
A "SPECIFIED AMOUNT" of a Component Currency shall mean the number
of units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not
limited to, the ECU, on the Conversion Date. If after the
Conversion Date the official unit of any Component Currency is
altered by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in the
same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single currency, the respective
Specified Amounts of such Component Currencies shall be replaced by
an amount in such single currency equal to the sum of the respective
Specified Amounts of such consolidated Component Currencies
expressed in such single currency, and such amount shall thereafter
be a Specified Amount and such single currency shall thereafter be a
Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified
Amount of such Component Currency shall be replaced by amounts of
such two or more currencies, having an aggregate Dollar Equivalent
value at the Market Exchange Rate on the date of such replacement
equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately
before such division, and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component
Currencies. If, after the Conversion Date of the relevant currency
<PAGE>
41
unit, including, but not limited to, the ECU, a Conversion Event
(other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of
such currency unit and is continuing on the applicable Valuation
Date, the Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency Unit,
be converted into Dollars at the Market Exchange Rate in effect on
the Conversion Date of such Component Currency.
"ELECTION DATE" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior
to Maturity, as the case may be, or such other prior date for any
series of Registered Securities as specified pursuant to clause 13
of Section 301 by which the written election referred to in Section
312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee for the appropriate series of Securities
and all Holders of such Securities denominated or payable in the relevant
Currency. The Exchange Rate Agent shall promptly give written notice to the
Company and the Trustee for the appropriate series of Securities of any such
decision or determination.
In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date. In the event the Company so
determines that a Conversion Event has occurred with respect to the ECU or any
other currency unit in which Securities are denominated or payable, the Company
will immediately give written notice thereof to the Trustee of the appropriate
series of Securities and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee of the appropriate series of
Securities and to the Exchange Rate Agent.
The Trustee of the appropriate series of Securities shall be fully
justified and protected in relying and acting upon information received by it
from the Company and the Exchange Rate Agent and shall not otherwise have any
duty or obligation to determine the
<PAGE>
42
accuracy or validity of such information independent of the Company or the
Exchange Rate Agent.
SECTION 313. APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE
RATE AGENT. (a) Unless otherwise specified pursuant to Section 301, if and
so long as the Securities of any series (i) are denominated in a Foreign
Currency or (ii) may be payable in a Foreign Currency, or so long as it is
required under any other provision of this Indenture, then the Company will
maintain with respect to each such series of Securities, or as so required,
at least one Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the time and
in the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for the
purpose of converting the issued Foreign Currency into the applicable payment
Currency for the payment of principal (and premium, if any) and interest, if
any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor
Exchange Rate Agent as evidenced by a written instrument delivered to the
Company and the Trustee of the appropriate series of Securities accepting
such appointment executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or
more series, the Company, by or pursuant to a Board Resolution, shall
promptly appoint a successor Exchange Rate Agent or Exchange Rate Agents with
respect to the Securities of that or those series (it being understood that
any such successor Exchange Rate Agent may be appointed with respect to the
Securities of one or more or all of such series and that, unless otherwise
specified pursuant to Section 301, at any time there shall only be one
Exchange Rate Agent with respect to the Securities of any particular series
that are originally issued by the Company on the same date and that are
initially denominated and/or payable in the same Currency).
SECTION 314. CUSIP NUMBERS. The Company in issuing the Securities
may use "CUSIP" numbers (if then generally in use), and, if so, the Trustee
shall indicate the "CUSIP" numbers of the Securities in notices of redemption as
a convenience to Holders; PROVIDED that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of redemption. The Company
shall promptly notify the Trustee of any change in the "CUSIP" numbers.
<PAGE>
43
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE. This
Indenture shall upon Company Request cease to be of further effect with respect
to any series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series expressly provided for herein or pursuant hereto and any right to receive
Additional Amounts, as provided in Section 1004), and the Trustee, upon receipt
of a Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
Section 305, (ii) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid
as provided in Section 306, (iii) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106,
and (iv) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 1003) have been
delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or
(ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated
Maturity within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to
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44
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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(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 proceeding to
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48
judgment or final decree, and may enforce the same against the Company or any
other obligor upon Securities of such series and collect the moneys adjudged
or decreed to be payable in the manner provided by law out of the property of
the Company or any other obligor upon Securities of such series, wherever
situated.
If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
SECTION 504. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal of the Securities of any series
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of any overdue principal, premium or interest) shall
be entitled and empowered, by intervention in such proceeding or otherwise:
(i) to file and prove a claim for the whole amount of principal
(or in the case of Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be provided for in the
terms thereof) (and premium, if any) and interest, if any, owing and
unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of
the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
or coupon any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or coupons or
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49
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
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50
interest, if any, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of any
kind, according to the aggregate amounts due and payable on such
Securities and coupons for principal (and premium, if any) and interest,
if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. LIMITATION ON SUITS. No Holder of any Security of any
series or any related coupon shall have any right to institute any proceeding,
judicial or otherwise, with respect to this Indenture, or for the appointment of
a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of
that series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee indemnity
satisfactory to the Trustee 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
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51
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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52
(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
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53
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 conclusively 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 of its selection 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.
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54
(6) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
(7) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(8) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon it
by this Indenture.
The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured
to it.
SECTION 603. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF
SECURITIES. The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the
Trustee nor any Authenticating Agent shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
SECTION 604. MAY HOLD SECURITIES. The Trustee, any Paying
Agent, Security Registrar, Authenticating Agent or any other agent of the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities and coupons and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company with the same rights it would have
if it were not Trustee, Paying Agent, Security Registrar, Authenticating
Agent or such other agent.
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55
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 in writing with the
Company.
SECTION 606. COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) To pay to the Trustee from time to time such compensation for
all services rendered by it hereunder as has been agreed upon in writing
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust),
(2) Except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith, and
(3) To indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any and all loss, liability,
damage, claim or expense, including taxes (other than taxes based on the
income of the Trustee) 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 (whether asserted by the
Company, a Holder or any other Person) or liability in connection with
the exercise or performance of any of its powers or duties hereunder.
As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the payment of principal of (or premium, if any) or
interest, if any, on particular Securities or any coupons.
When the Trustee incurs expenses or renders services after an
Event of Default specified in Section 501(5) or (6) occurs, the expenses and
compensation for the services are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 607. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY;
CONFLICTING INTERESTS. 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
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56
recent report of condition so published. If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it
shall resign immediately in the manner and with the effect hereinafter
specified in this Article.
SECTION 608. RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of TIA
Section 310(b) after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at
least six months, or
(2) the Trustee shall cease to be eligible under Section 607(a)
and shall fail to resign after written request therefor by the Company or
by any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its
property shall be appointed or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board Resolution
may remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a Security
who has been a bona fide Holder of a Security for at least six months may, on
behalf of himself and all others similarly situated, petition any court 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.
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57
(f) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company,
by or pursuant to a Board Resolution, shall promptly appoint a successor
Trustee or Trustees with respect to the Securities of that or those series
(it being understood that any such successor Trustee may be appointed with
respect to the Securities of one or more or all of such series and that at
any time there shall be only one Trustee with respect to the Securities of
any particular series). If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company and the retiring Trustee, the successor
Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee with respect to the Securities of
such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of
Securities and accepted appointment in the manner hereinafter provided, any
Holder of a Security who has been a bona fide Holder of a Security of such
series for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the
appointment of a successor Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any
series in the manner provided for notices to the Holders of Securities in
Section 106. Each notice shall include the name of the successor Trustee with
respect to the Securities of such series and the address of its Corporate
Trust Office.
SECTION 609. ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In
case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee,
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder, subject
nevertheless to its claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series,
the Company, the retiring Trustee and
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each successor Trustee with respect to the Securities of one or more series
shall execute and deliver an indenture supplemental hereto wherein each
successor Trustee shall accept such appointment and which (1) shall contain
such provisions as shall be necessary or desirable to transfer and confirm
to, and to vest in, each successor Trustee all the rights, powers, trusts and
duties of the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee relates, (2)
if the retiring Trustee is not retiring with respect to all Securities, shall
contain such provisions as shall be deemed necessary or desirable to confirm
that all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the retiring Trustee,
and (3) shall add to or change any of the provisions of this Indenture as
shall be necessary to provide for or facilitate the administration of the
trusts hereunder by more than one Trustee, it being understood that nothing
herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be trustee of
a trust or trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the execution and
delivery of such supplemental indenture the resignation or removal of the
retiring Trustee shall become effective to the extent provided therein and
each such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall duly
assign, transfer and deliver to such successor Trustee all property and money
held by such retiring Trustee hereunder with respect to the Securities of
that or those series to which the appointment of such successor Trustee
relates.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610. MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO
BUSINESS. Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
PROVIDED such corporation shall be otherwise qualified and eligible under
this Article, without the execution or filing of any paper or any further act
on the part of any of the parties hereto. In case any Securities or coupons
shall have been authenticated, but not delivered, by the Trustee then in
office, any successor by merger, conversion or consolidation
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to such authenticating Trustee may adopt such authentication and deliver the
Securities or coupons so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities or coupons. In
case any Securities or coupons shall not have been authenticated by such
predecessor Trustee, any such successor Trustee may authenticate and deliver
such Securities or coupons, in either its own name or that of its predecessor
Trustee, with the full force and effect which this Indenture provides for the
certificate of authentication of the Trustee.
SECTION 611. APPOINTMENT OF AUTHENTICATING AGENT. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of
Securities which shall be authorized to act on behalf of the Trustee to
authenticate Securities of such series issued upon exchange, registration of
transfer or partial redemption thereof, and Securities so authenticated shall
be entitled to the benefits of this Indenture and shall be valid and
obligatory for all purposes as if authenticated by the Trustee hereunder. Any
such appointment shall be evidenced by an instrument in writing signed by a
Responsible Officer of the Trustee, a copy of which instrument shall be
promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf
of the Trustee by an Authenticating Agent. Each Authenticating Agent shall
be acceptable to the Company and, except as may otherwise be provided
pursuant to Section 301, shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws
of the United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $1,500,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for
the purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus
as set forth in its most recent report of condition so published. In case at
any time an Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all
or substantially all 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.
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An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at
any time terminate the agency of an Authenticating Agent by giving written
notice of termination to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for such series
may appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment to all Holders of
Securities of the series with respect to which such Authenticating Agent will
serve in the manner set forth in Section 106. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with
all the rights, powers and duties of its predecessor hereunder, with like
effect as if originally named as an Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in
the following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
The Bank of New York, as Trustee
By ______________________________
as Authenticating Agent
By ______________________________
Authorized Officer
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS.
Every Holder of Securities or coupons, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA
Section 312(b).
SECTION 702. REPORTS BY TRUSTEE. Within 60 days after May 15 of
each year commencing with the first May 15 after the first issuance of
Securities pursuant to this Indenture, the Trustee shall transmit by mail to
all Holders of Securities as provided in TIA Section 313(c) a brief report
dated as of such May 15 if required by TIA Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee of the listing of the
Securities on any stock exchange and of any delisting thereof.
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
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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.
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SECTION 704. CALCULATION OF ORIGINAL ISSUE DISCOUNT. The Company
shall file with the Trustee promptly at the end of each calendar year a
written notice specifying the amount of original issue discount (including
daily rates and accrual periods), if any, accrued on Outstanding Securities
as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN
TERMS. The Company shall not consolidate with or merge with or into any other
corporation or convey or transfer its properties and assets substantially as
an entirety to any Person, unless:
(1) either the Company shall be the continuing corporation, or
the corporation (if other than the Company) formed by such consolidation
or into which the Company is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company
substantially as an entirety shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest, if any, on all the Securities and
the performance of every covenant of this Indenture on the part of the
Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing; and
(3) the Company and the successor Person have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802. SUCCESSOR PERSON SUBSTITUTED. Upon any
consolidation or merger, or any conveyance or transfer of the properties and
assets of the Company substantially as an entirety in accordance with Section
801, the successor corporation formed by such consolidation or into which the
Company is merged or the successor Person to which such conveyance or
transfer is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor had been named as the Company herein; and in the
event of any such conveyance or transfer, the Company shall be discharged
from all obligations and covenants under this Indenture and the Securities
and coupons and may be dissolved and liquidated.
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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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Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such
provision; or
(6) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including
the provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); or
(7) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
(8) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; PROVIDED that such action shall not adversely affect
the interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; PROVIDED that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect.
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in principal
amount of all Outstanding Securities affected by such supplemental indenture,
by Act of said Holders delivered to the Company and the Trustee, the Company,
when authorized by or pursuant to a Board Resolution, and the Trustee may
enter into an indenture or indentures supplemental hereto for the purpose of
adding any provisions to or changing in any manner or eliminating any of the
provisions of this Indenture or of modifying in any manner the rights of the
Holders of Securities and any related coupons under this Indenture; PROVIDED,
HOWEVER, that no such supplemental indenture shall, without the consent of
the Holder of each Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium,
if any, on) or any installment of principal of or interest on, any
Security; or reduce the principal amount thereof or the rate of interest
thereon, or any premium payable upon the redemption thereof, or change any
obligation of the Company to pay Additional Amounts pursuant to Section
1004 (except as contemplated by Section 801(1) and permitted by Section
901(1)), or reduce the portion of the principal of an Original Issue
Discount Security or Indexed Security that would be due and payable upon a
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declaration of acceleration of the Maturity thereof pursuant to Section
502 or the amount thereof provable in bankruptcy pursuant to Section 504,
or adversely affect any right of repayment at the option of the Holder of
any Security, or change any Place of Payment where, or the Currency in
which, any Security or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such payment
on or after the Stated Maturity thereof (or, in the case of redemption or
repayment at the option of the Holder, on or after the Redemption Date or
the Repayment Date, as the case may be), or adversely affect any right to
convert or exchange any Security as may be provided pursuant to Section
301 herein, or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements
of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) modify any of the provisions of this Indenture relating to
the subordination of the Securities in a manner adverse to the Holders.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect
to such covenant or other provision, shall be deemed not to affect the rights
under this Indenture of the Holders of Securities of any other series.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders on
such record date, or their duly designated proxies, and only such Persons,
shall be entitled to consent to such supplemental indenture, whether or not
such Holders remain Holders after such record date; PROVIDED, that unless
such consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the
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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
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outside the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series in
Luxembourg or any other required city located outside the United States, as
the case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office
or agency where any Registered Securities of that series may be surrendered
for registration of transfer, where Securities of that series may be
surrendered for exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company in respect
of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and
any change in the location, of each such office or agency. If at any time
the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such
presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, except that Bearer Securities of that
series and the related coupons may be presented and surrendered for payment
at the offices specified in the Security, in London, England, and the Company
hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands, and the Company hereby
appoints the Trustee its agent to receive all such presentations, surrenders,
notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on
Bearer Securities shall be made at any office or agency of the Company in the
United States or by check mailed to any address in the United States or by
transfer to an account maintained with a bank located in the United States;
PROVIDED, HOWEVER, that, if the Securities of a series are payable in
Dollars, payment of principal of (and premium, if any) and interest, if any,
on any Bearer Security shall be made at the office of the Company's Paying
Agent in the Borough of Manhattan, The City of New York, if (but only if)
payment in Dollars of the full amount of such principal, premium or interest,
as the case may be, at all offices or agencies outside the United States
maintained for such purpose by the Company in accordance with this Indenture,
is illegal or effectively precluded by exchange controls or other similar
restrictions.
The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be
presented or surrendered for any or all of such purposes, and may from time
to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the
requirements set forth above for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any Securities
pursuant to Section 301 with respect to a series of Securities, the Company
hereby designates as a Place of Payment for each series of Securities the
office or agency of the Company in the Borough
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of Manhattan, The City of New York, and initially appoints the Trustee at its
Corporate Trust Office as Paying Agent in such city and as its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i)
are denominated in a currency other than Dollars or (ii) may be payable in a
currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company will maintain with respect to
each such series of Securities, or as so required, at least one Exchange Rate
Agent.
SECTION 1003. MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with respect to
any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (or premium, if any) or interest, if any,
on any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if applicable,
as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay the
principal of (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 (and
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
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series and remaining unclaimed for two years after such principal, premium or
interest has become due and payable shall be paid to the Company upon Company
Request or (if then held by the Company) shall be discharged from such trust;
and the Holder of such Security shall thereafter, as an unsecured general
creditor, look only to the Company for payment of such principal, premium or
interest on any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; PROVIDED,
HOWEVER, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in an Authorized Newspaper, notice that such money remains unclaimed
and that, after a date specified therein, which shall not be less than 30
days from the date of such publication, any unclaimed balance of such money
then remaining will be repaid to the Company.
SECTION 1004. ADDITIONAL AMOUNTS. If the Securities of a series
provide for the payment of Additional Amounts, the Company will pay to the
Holder of a Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301.
Whenever in this Indenture there is mentioned, in any context, the payment of
the principal of (or premium, if any) or interest, if any, on any Security of
any series or payment of any related coupon or the net proceeds received on
the sale or exchange of any Security of any series, such mention shall be
deemed to include mention of the payment of Additional Amounts provided by
the terms of such series established pursuant to Section 301 to the extent
that, in such context, Additional Amounts are, were or would be payable in
respect thereof pursuant to such terms and express mention of the payment of
Additional Amounts (if applicable) in any provisions hereof shall not be
construed as excluding Additional Amounts in those provisions hereof where
such express mention is not made.
Except as otherwise specified as contemplated by Section 301, if
the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment of
principal, premium or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers' Certificate, the
Company will furnish the Trustee and the Company's principal Paying Agent or
Paying Agents, if other than the Trustee, with an Officers' Certificate
instructing the Trustee and such Paying Agent or Paying Agents whether such
payment of principal, premium or interest on the Securities of that series
shall be made to Holders of Securities of that series or any related coupons
who are not United States persons without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities
of the series. If any such withholding shall be required, then such
Officers' Certificate shall specify by country the amount, if any, required
to be withheld on such payments to such Holders of Securities of that series
or related coupons and the Company will pay to the Trustee or such Paying
Agent the Additional Amounts required by the terms of
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such Securities. In the event that the Trustee or any Paying Agent, as the
case may be, shall not so receive the above-mentioned certificate, then the
Trustee or such Paying Agent shall be entitled (i) to assume that no such
withholding or deduction is required with respect to any payment of principal
or interest with respect to any Securities of a series or related coupons
until it shall have received a certificate advising otherwise and (ii) to
make all payments of principal and interest with respect to the Securities of
a series or related coupons without withholding or deductions until otherwise
advised. The Company covenants to indemnify the Trustee and any Paying Agent
for, and to hold them harmless against, any loss, liability or expense
reasonably incurred without negligence or bad faith on their part arising out
of or in connection with actions taken or omitted by any of them in reliance
on any Officers' Certificate furnished pursuant to this Section or in
reliance on the Company's not furnishing such an Officers' Certificate.
SECTION 1005. STATEMENT AS TO COMPLIANCE. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's compliance with all conditions and covenants under this Indenture.
For purposes of this Section 1005, such compliance shall be determined
without regard to any period of grace or requirement of notice under this
Indenture.
SECTION 1006. WAIVER OF CERTAIN COVENANTS. As specified
pursuant to Section 301(15) for Securities of any series, the Company may
omit in any particular instance to comply with any term, provision or
condition set forth in any covenants of the Company added to Article Ten
pursuant to Section 301(14) or 301(15) in connection with Securities of a
series, if before or after the time for such compliance the Holders of at
least a majority in principal amount of all outstanding Securities, by Act of
such Holders, waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such waiver shall
extend to or affect such term, provision or condition except to the extent so
expressly waived, and, until such waiver shall become effective, the
obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. APPLICABILITY OF ARTICLE. Securities of any
series which are redeemable before their Stated Maturity shall be redeemable
in accordance with their terms and (except as otherwise specified as
contemplated by Section 301 for Securities of any series) in accordance with
this Article.
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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 Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice
shall be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such series to
be redeemed. In the case of any redemption of Securities prior to the
expiration of any restriction on such redemption provided in the terms of
such Securities or elsewhere in this Indenture, the Company shall furnish the
Trustee with an Officers' Certificate evidencing compliance with such
restriction.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series issued on the same day with the
same terms are to be redeemed, the particular Securities to be redeemed shall
be selected not more than 60 days prior to the Redemption Date by the
Trustee, from the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by such method as
the Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions (equal to the minimum authorized
denomination for Securities of that series or any integral multiple thereof)
of the principal amount of Securities of such series of a denomination larger
than the minimum authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 1104. NOTICE OF REDEMPTION. Notice of redemption shall
be given in the manner provided in Section 106, not less than 30 days nor
more than 60 days prior to the Redemption Date, unless a shorter period is
specified by the terms of such series established pursuant to Section 301, to
each Holder of Securities to be redeemed, but failure to give such notice in
the manner herein provided to the Holder of any Security designated for
redemption as a whole or in part, or any defect in the notice to any such
Holder, shall not affect the validity of the proceedings for the redemption
of any other such Security or portion thereof.
Any notice that is mailed to the Holders of Registered Securities
in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice.
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All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to the
Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series are to
be redeemed, the identification (and, in the case of partial redemption,
the principal amount) of the particular Security or Securities to be
redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will receive,
without a charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and accrued
interest, if any, to the Redemption Date payable as provided in Section
1106 will become due and payable upon each such Security, or the portion
thereof, to be redeemed and, if applicable, that interest thereon shall
cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be surrendered
for payment of the Redemption Price and accrued interest, if any,
(7) that the redemption is for a sinking fund, if such is the
case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 305 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made, and
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(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.
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
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deducting from the Redemption Price an amount equal to the face amount of all
such missing coupons, or the surrender of such missing coupon or coupons may
be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted; PROVIDED, HOWEVER, that
interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section
1002) and, unless otherwise specified as contemplated by Section 301, only
upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in
such Security or, in the case of an Original Issue Discount Security, at the
Yield to Maturity of such Security.
SECTION 1107. SECURITIES REDEEMED IN PART. Any Registered
Security which is to be redeemed only in part (pursuant to the provisions of
this Article or of Article Twelve) shall be surrendered at a Place of Payment
therefor (with, if the Company or the Trustee so requires, due endorsement
by, or a written instrument of transfer in form satisfactory to the Company
and the Trustee duly executed by, the Holder thereof or his attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service
charge a new Security or Securities of the same series, of any authorized
denomination as requested by such Holder in aggregate principal amount equal
to and in exchange for the unredeemed portion of the principal of the
Security so surrendered. However, if less than all the Securities of any
series with differing issue dates, interest rates and stated maturities are
to be redeemed, the Company in its sole discretion shall select the
particular Securities to be redeemed and shall notify the Trustee in writing
thereof at least 45 days prior to the relevant redemption date.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE. The provisions of this
Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by
Section 301 for Securities of such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount
provided for by the terms of such Securities of any series is herein referred
to as an "optional sinking fund payment". If provided for by the terms of
any Securities of any series, the cash amount of any mandatory sinking fund
payment may be subject to reduction as provided in Section 1202. Each
sinking fund payment shall be
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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.
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"
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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.
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
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coupons may be waived by the Company and the Trustee if there be furnished to
them such security or indemnity as they may require to save each of them and
any Paying Agent harmless. If thereafter the Holder of such Security shall
surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made as provided in the
preceding sentence, such Holder shall be entitled to receive the amount so
deducted; PROVIDED, HOWEVER, that interest represented by coupons shall be
payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and
surrender of those coupons.
If any Security surrendered for repayment shall not be so repaid
upon surrender thereof, the Repayment Price shall, until paid, bear interest
from the Repayment Date at the rate of interest set forth in such Security
or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1305. SECURITIES REPAID IN PART. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal
to and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. APPLICABILITY OF ARTICLE; COMPANY'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 301
provision is made for either or both of (a) defeasance of the Securities of
or within a series under Section 1402 or (b) covenant defeasance of the
Securities of or within a series under Section 1403, then the provisions of
such Section or Sections, as the case may be, together with the other
provisions of this Article (with such modifications thereto as may be
specified pursuant to Section 301 with respect to any Securities), shall be
applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to
such Securities and any coupons appertaining thereto, elect to have Section
1402 (if applicable) or Section 1403 (if applicable) be applied to such
Outstanding Securities and any coupons appertaining thereto upon compliance
with the conditions set forth below in this Article.
SECTION 1402. DEFEASANCE AND DISCHARGE. Upon the Company's
exercise of the above option applicable to this Section with respect to any
Securities of or within a series, the Company shall be deemed to have been
discharged from its obligations with respect to such Outstanding Securities
and any coupons appertaining thereto on the date the conditions
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set forth in Section 1404 are satisfied (hereinafter, "defeasance"). For
this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the
other Sections of this Indenture referred to in clauses (A) and (B) of this
Section, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder: (A) the rights of Holders of
such Outstanding Securities and any coupons appertaining thereto to receive,
solely from the trust fund described in Section 1404 and as more fully set
forth in such Section, payments in respect of the principal of (and premium,
if any) and interest, if any, on such Securities and any coupons appertaining
thereto when such payments are due, (B) the Company's obligations with
respect to such Securities under Sections 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, if any, on such Securities as
contemplated by Section 1004, (C) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (D) this Article. Subject to
compliance with this Article Fourteen, the Company may exercise its option
under this Section notwithstanding the prior exercise of its option under
Section 1403 with respect to such Securities and any coupons appertaining
thereto. Money and securities held in trust pursuant to this Section 1402
shall not be subject to Article Sixteen.
SECTION 1403. COVENANT DEFEASANCE. Upon the Company's exercise
of the above option applicable to this Section with respect to any Securities
of or within a series, the Company shall be released, if specified pursuant
to Section 301, from its obligations under any covenant with respect to such
Outstanding Securities and any coupons appertaining thereto on and after the
date the conditions set forth in Section 1404 are satisfied (hereinafter,
"covenant defeasance"), and such Securities and any coupons appertaining
thereto shall thereafter be deemed to be not "Outstanding" for the purposes
of any direction, waiver, consent or declaration or Act of Holders (and the
consequences of any thereof) in connection with each such covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company may
omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein
to any such Section or such other covenant or by reason of reference in any
such Section or such other covenant to any other provision herein or in any
other document and such omission to comply shall not constitute a Default or
an Event of Default under Section 501(4) or 501(7) or otherwise, as the case
may be, but, except as specified above, the remainder of this Indenture and
such Securities and any coupons appertaining thereto shall be unaffected
thereby.
SECTION 1404. CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE.
The following shall be the conditions to application of Section 1402 or
Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
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(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements
of Section 607 who shall agree to comply with the provisions of this
Article Fourteen applicable to it) as trust funds in trust for the purpose
of making the following payments, specifically pledged as security for,
and dedicated solely to, the benefit of the Holders of such Securities and
any coupons appertaining thereto, (1) an amount (in such Currency in which
such Securities and any coupons appertaining thereto are then specified as
payable at Stated Maturity), or (2) Government Obligations applicable to
such Securities and coupons appertaining thereto (determined on the basis
of the Currency in which such Securities and coupons appertaining thereto
are then specified as payable at Stated Maturity) which through the
scheduled payment of principal and interest in respect thereof in
accordance with their terms will provide, not later than one day before
the due date of any payment of principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof in an amount, sufficient,
in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee
(or other qualifying trustee) to pay and discharge, (i) the principal of
(and premium, if any) and interest, if any, on such Outstanding Securities
and any coupons appertaining thereto on the Stated Maturity of such
principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding
Securities and any coupons appertaining thereto on the day on which such
payments are due and payable in accordance with the terms of this
Indenture and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company is a party
or by which it is bound.
(c) No Default or Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit or, insofar as Sections 501(5) and
501(6) are concerned, at any time during the period ending on the 91st day
after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (i)
the Company has received from, or there has been published by, the
Internal Revenue Service a ruling, or (ii) since the date of execution of
this Indenture, there has been a change in the applicable Federal income
tax law, in either case to the effect that, and based thereon such opinion
shall confirm that, the Holders of such Outstanding Securities and any
coupons appertaining thereto will not recognize income, gain or loss for
Federal income tax purposes as a result of such defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such defeasance had not
occurred.
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(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance
under Section 1403 (as the case may be) have been complied with and an
Opinion of Counsel to the effect that either (i) as a result of a deposit
pursuant to subsection (a) above and the related exercise of the Company's
option under Section 1402 or Section 1403 (as the case may be),
registration is not required under the Investment Company Act of 1940, as
amended, by the Company, with respect to the trust funds representing such
deposit or by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company in connection therewith pursuant to Section 301.
SECTION 1405. DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE
HELD IN TRUST; OTHER MISCELLANEOUS PROVISIONS. Subject to the provisions of
the last paragraph of Section 1003, all money and Government Obligations (or
other property as may be provided pursuant to Section 301) (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the "Trustee") pursuant to
Section 1404 in respect of any Outstanding Securities of any series and any
coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Holders of such Securities and
any coupons appertaining thereto of all sums due and to become due thereon in
respect of principal (and premium, if any) and interest, if any, but such
money need not be segregated from other funds except to the extent required
by law.
Unless otherwise specified with respect to any Security pursuant
to Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was made
is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 312(d)
or 312(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 1404(a) has been made, the
<PAGE>
84
indebtedness represented by such Security and any coupons appertaining
thereto shall be deemed to have been, and will be, fully discharged and
satisfied through the payment of the principal of (and premium, if any) and
interest, if any, on such Security as the same becomes due out of the
proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect
of such Security into the Currency in which such Security becomes payable as
a result of such election or Conversion Event based on the applicable Market
Exchange Rate for such Currency in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such
Currency in effect (as nearly as feasible) at the time of the Conversion
Event.
The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any
proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. PURPOSES FOR WHICH MEETINGS MAY BE CALLED. If
Securities of a series are issuable as Bearer Securities, a meeting of
Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
SECTION 1502. CALL, NOTICE AND PLACE OF MEETINGS. (a) The
Trustee may at any time call a meeting of Holders of Securities of any series
for any purpose specified in Section 1501, to be held at such time and at
such place in the Borough of Manhattan, The City of New York or in London as
the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor
more than 180 days prior to the date fixed for the meeting.
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85
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication of the notice of such meeting within 21
days after receipt of such request or shall not thereafter proceed to cause
the meeting to be held as provided herein, then the Company or the Holders of
Securities of such series in the amount above specified, as the case may be,
may determine the time and the place in the Borough of Manhattan, The City of
New York or in London for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in subsection (a) of this
Section.
SECTION 1503. PERSONS ENTITLED TO VOTE AT MEETINGS. To be
entitled to vote at any meeting of Holders of Securities of any series, a
Person shall be (1) a Holder of one or more Outstanding Securities of such
series, or (2) a Person appointed by an instrument in writing as proxy for a
Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present
or to speak at any meeting of Holders of Securities of any series shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1504. QUORUM; ACTION. The Persons entitled to vote a
majority in principal amount of the Outstanding Securities of a series shall
constitute a quorum for a meeting of Holders of Securities of such series;
PROVIDED, HOWEVER, that if any action is to be taken at such meeting with
respect to a consent or waiver which this Indenture expressly provides may be
given by the Holders of not less than a specified percentage in principal
amount of the Outstanding Securities of a series, the Persons entitled to
vote such specified percentage in principal amount of the Outstanding
Securities of such series shall constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such adjourned meeting. Notice of the
reconvening of any adjourned meeting shall be given as provided in Section
1502(a), except that such notice need be given only once not less than five
days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a
quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of
that series; PROVIDED, HOWEVER, that, except as limited by the proviso
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86
to Section 902, any resolution with respect to any request, demand,
authorization, direction, notice, consent, waiver or other action which this
Indenture expressly provides may be made, given or taken by the Holders of a
specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as
aforesaid by the affirmative vote of the Holders of such specified percentage
in principal amount of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall
be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504, if
any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of
such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such
meeting; and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505. DETERMINATION OF VOTING RIGHTS; CONDUCT AND
ADJOURNMENT OF MEETINGS. (a) Notwithstanding any provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Holders of Securities of a series in regard to
proof of the holding of Securities of such series and of the appointment of
proxies and in regard to the appointment and duties of inspectors of votes,
the submission and examination of proxies, certificates and other evidence of
the right to vote, and such other matters concerning the conduct of the
meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved
in the manner specified in Section 104 and the appointment of any proxy shall
be proved in the manner specified in Section 104 or by having the signature
of the Person executing the proxy witnessed or guaranteed by any trust
company, bank or banker authorized by Section 104 to certify to the holding
of Bearer Securities. Such regulations may provide that written instruments
appointing proxies, regular on their face, may be presumed valid and genuine
without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by
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87
Holders of Securities as provided in Section 1502(b), in which case the
Company or the Holders of Securities of the series calling the meeting, as
the case may be, shall in like manner appoint a temporary chairman. A
permanent chairman and a permanent secretary of the meeting shall be elected
by vote of the Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of
any Security challenged as not Outstanding and ruled by the chairman of the
meeting to be not Outstanding. The chairman of the meeting shall have no
right to vote, except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount
of the Outstanding Securities of such series represented at the meeting, and
the meeting may be held as so adjourned without further notice.
SECTION 1506. COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers
of the Outstanding Securities of such series held or represented by them.
The permanent chairman of the meeting shall appoint two inspectors of votes
who shall count all votes cast at the meeting for or against any resolution
and who shall make and file with the secretary of the meeting their verified
written reports in duplicate of all votes cast at the meeting. A record, at
least in duplicate, of the proceedings of each meeting of Holders of
Securities of any Series shall be prepared by the secretary of the meeting
and there shall be attached to said record the original reports of the
inspectors of votes on any vote by ballot taken thereat and affidavits by one
or more persons having knowledge of the fact, setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
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ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. AGREEMENT TO SUBORDINATE. The Company, for
itself, its successors and assigns, covenants and agrees, and each Holder of
Securities by his acceptance thereof, likewise covenants and agrees, that the
payment of the principal of (and premium, if any) and interest, if any, on
each and all of the Securities is hereby expressly subordinated, to the
extent and in the manner hereinafter set forth, in right of payment to the
prior payment in full of all Senior Indebtedness.
SECTION 1602. DISTRIBUTION ON DISSOLUTION, LIQUIDATION AND
REORGANIZATION; SUBROGATION OF SECURITIES. Upon any distribution of assets
of the Company upon any dissolution, winding up, liquidation or
reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment for the
benefit of creditors or any other marshalling of the assets and liabilities
of the Company or otherwise (subject to the power of a court of competent
jurisdiction to make other equitable provision reflecting the rights
conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Securities and the holders thereof by a lawful
plan of reorganization under applicable bankruptcy law):
(a) the holders of all Senior Indebtedness shall be entitled to
receive payment in full of the principal thereof (and premium, if any) and
interest due thereon before the Holders of the Securities are entitled to
receive any payment upon the principal (or premium, if any) or interest,
if any, on indebtedness evidenced by the Securities; and
(b) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities, to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article Sixteen shall be paid by the liquidating
trustee or agent or other person making such payment or distribution,
whether a trustee in bankruptcy, a receiver or liquidating trustee or
otherwise, directly to the holders of Senior Indebtedness or their
representative or representatives or to the trustee or trustees under any
indenture under which any instruments evidencing any of such Senior
Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if
any) and interest on the Senior Indebtedness held or represented by each,
to the extent necessary to make payment in full of all Senior Indebtedness
remaining unpaid, after giving effect to any concurrent payment or
distribution to the holders of such Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or character, whether
in cash, property or securities, shall be received by the Trustee or the
Holders of the Securities before all Senior Indebtedness is paid in full,
such payment or distribution shall be paid
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89
over, upon written notice to the Trustee, to the holder of such Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the
principal of (and premium, if any) and interest, if any, on the Securities
shall be paid in full and no such payments or distributions to the Holders of
the Securities of cash, property or securities otherwise distributable to the
holders of Senior Indebtedness shall, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Securities be deemed to be a payment by the Company to or on account of the
Securities. It is understood that the provisions of this Article Sixteen are
and are intended solely for the purpose of defining the relative rights of
the Holders of the Securities, on the one hand, and the holders of the Senior
Indebtedness, on the other hand. Nothing contained in this Article Sixteen or
elsewhere in this Indenture or in the Securities is intended to or shall
impair, as between the Company, its creditors other than the holders of
Senior Indebtedness, and the Holders of the Securities, the obligation of the
Company, which is unconditional and absolute, to pay to the Holders of the
Securities the principal of (and premium, if any) and interest, if any, on
the Securities as and when the same shall become due and payable in
accordance with their terms, or to affect the relative rights of the Holders
of the Securities and creditors of the Company other than the holders of
Senior Indebtedness, nor shall anything herein or in the Securities prevent
the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture,
subject to the rights, if any, under this Article Sixteen of the holders of
Senior Indebtedness in respect of cash, property or securities of the Company
received upon the exercise of any such remedy. Upon any payment or
distribution of assets of the Company referred to in this Article Sixteen,
the Trustee, subject to the provisions of Section 601, shall be entitled to
rely upon a certificate of the liquidating trustee or agent or other person
making any distribution to the Trustee for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of Senior
Indebtedness and other indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article Sixteen.
The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness. The Trustee shall not be liable
to any such holder if it shall pay over or distribute to or on behalf of
Holders of Securities or the Company moneys or assets to which any holder of
Senior Indebtedness shall be entitled by virtue of this Article Sixteen.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants or obligations
as are specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
<PAGE>
90
If the Trustee or any Holder of Securities does not file a proper
claim or proof of debt in the form required in any proceeding referred to
above prior to 30 days before the expiration of the time to file such claim
in such proceeding, then the holder of any Senior Indebtedness is hereby
authorized, and has the right, to file an appropriate claim or claims for or
on behalf of such Holder of Securities.
SECTION 1603. NO PAYMENT ON SECURITIES IN EVENT OF DEFAULT ON
SENIOR INDEBTEDNESS. No payment by the Company on account of principal (or
premium, if any), sinking funds or interest, if any, on the Securities shall
be made unless full payment of amounts then due for principal (premium, if
any), sinking funds and interest on Senior Indebtedness has been made or duly
provided for in money or money's worth.
SECTION 1604. PAYMENTS ON SECURITIES PERMITTED. Nothing
contained in this Indenture or in any of the Securities shall (a) affect the
obligation of the Company to make, or prevent the Company from making, at any
time except as provided in Sections 1602 and 1603, payments of principal of
(or premium, if any) or interest, if any, on the Securities or (b) prevent
the application by the Trustee of any moneys deposited with it hereunder to
the payment of or on account of the principal of (or premium, if any) or
interest, if any, on the Securities, unless the Trustee shall have received
at its Corporate Trust Office written notice of any event prohibiting the
making of such payment more than two Business Days prior to the date fixed
for such payment.
SECTION 1605. AUTHORIZATION OF HOLDERS TO TRUSTEE TO EFFECT
SUBORDINATION. Each Holder of Securities by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may
be necessary or appropriate to effectuate the subordination as provided in
this Article Sixteen and appoints the Trustee his attorney-in-fact for any
and all such purposes.
SECTION 1606. NOTICES TO TRUSTEE. Notwithstanding the
provisions of this Article or any other provisions of this Indenture, neither
the Trustee nor any Paying Agent (other than the Company) shall be charged
with knowledge of the existence of any Senior Indebtedness or of any event
which would prohibit the making of any payment of moneys to or by the Trustee
or such Paying Agent, unless and until the Trustee or such Paying Agent shall
have received (in the case of the Trustee, at its Corporate Trust Office)
written notice thereof from the Company or from the holder of any Senior
Indebtedness or from the trustee for any such holder, together with proof
satisfactory to the Trustee of such holding of Senior Indebtedness or of the
authority of such trustee; PROVIDED, HOWEVER, that if at least two Business
Days prior to the date upon which by the terms hereof any such moneys may
become payable for any purpose (including, without limitation, the payment of
either the principal (or premium, if any) or interest, if any, on any
Security) the Trustee shall not have received with respect to such moneys the
notice provided for in this Section 1606, then, anything herein contained to
the contrary notwithstanding, the Trustee shall have full power and authority
to receive such moneys and to apply the same to the purpose for which they
were received, and shall not be affected by any notice to the contrary, which
may be received by it within two Business Days prior to such date. The
Trustee shall be entitled to rely on the delivery to it of
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91
a written notice by a Person representing himself to be a holder of Senior
Indebtedness (or a trustee on behalf of such holder) to establish that such a
notice has been given by a holder of Senior Indebtedness or a trustee on
behalf of any such holder. In the event that the Trustee determines in good
faith that further evidence is required with respect to the right of any
Person as a holder of Senior Indebtedness to participate in any payment or
distribution pursuant to this Article Sixteen, the Trustee may request such
Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Indebtedness held by such Person, the extent to which
such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article
Sixteen and, if such evidence is not furnished, the Trustee may defer any
payment to such Person pending judicial determination as to the right of such
Person to receive such payment.
SECTION 1607. TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS. The
Trustee in its individual capacity shall be entitled to all the rights set
forth in this Article Sixteen in respect of any Senior Indebtedness at any
time held by it to the same extent as any other holder of Senior Indebtedness
and nothing in Section 613 or elsewhere in this Indenture shall be construed
to deprive the Trustee of any of its rights as such holder.
Nothing in this Article Sixteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
SECTION 1608. MODIFICATIONS OF TERMS OF SENIOR INDEBTEDNESS.
Any renewal or extension of the time of payment of any Senior Indebtedness or
the exercise by the holders of Senior Indebtedness of any of their rights
under any instrument creating or evidencing Senior Indebtedness, including,
without limitation, the waiver of default thereunder, may be made or done all
without notice to or assent from the Holders of the Securities or the Trustee.
No compromise, alteration, amendment, modification, extension,
renewal or other change of, or waiver, consent or other action in respect of,
any liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this
Article Sixteen or of the Securities relating to the subordination thereof.
SECTION 1609. RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF
LIQUIDATING AGENT. Upon any payment or distribution of assets of the Company
referred to in this Article Sixteen, the Trustee and the Holders of the
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution,
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92
the holders of Senior Indebtedness and other indebtedness of the Company, the
amount thereof or payable thereon, the amount or amounts paid or distributed
thereon and all other facts pertinent thereto or to this Article Sixteen.
* * * * *
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto
affixed and attested, all as of the day and year first above written.
DEERE & COMPANY
By ______________________
[SEAL] Treasurer
Attest:
________________________
[Assistant Secretary]
The Bank of New York, Trustee
By ______________________
[SEAL]
Attest:
________________________
[Trust Officer]
<PAGE>
93
STATE OF ILLINOIS )
) ss:
COUNTY OF ROCK ISLAND )
On the _______________ day of March, 1999, before me personally
came ______________________, to me known, who, being by me duly sworn, did
depose and say that he resides at ___________________, Illinois
______________; that he is the Treasurer of Deere & Company, one of the
corporations described in and which executed the foregoing instrument; that
he knows the seal of said corporation; that the seal affixed to said
instrument is such corporate seal; that it was so affixed by authority of the
Board of Directors of said corporation; and that he signed his name thereto
by like authority.
[Notarial Seal]
____________________
Notary Public
COMMISSION EXPIRES
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the ______ day of March, 1999, 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
<PAGE>
2
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 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
<PAGE>
2
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>
[FACE OF NOTE]
CUSIP NO.
REGISTERED
PRINCIPAL AMOUNT
No. FX -
DEERE & COMPANY
SUBORDINATED MEDIUM-TERM NOTE, SERIES C,
Due from 9 Months to 30 Years from Date of Issue
(FIXED RATE)
If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "DEPOSITORY") or a nominee of the Depository, this
Security is a Global Security and the following two legends apply:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
<PAGE>
2
ISSUE PRICE: OPTION TO ELECT REPAYMENT:
[ ] YES [ ] NO
ORIGINAL ISSUE DATE: OPTIONAL REPAYMENT DATE[S]:
STATED MATURITY DATE: MINIMUM DENOMINATIONS:
[ ] $1,000
[ ] Other:
SPECIFIED CURRENCY: ADDITIONAL AMOUNTS:
United States Dollars:
[ ] YES [ ] NO
Foreign Currency:
EXCHANGE RATE AGENT: DEFEASANCE: [ ] YES [ ] NO
OPTION TO RECEIVE PAYMENTS IN SPECIFIED COVENANT DEFEASANCE:
CURRENCY OTHER THAN U.S. DOLLARS: [ ] YES [ ] NO
[ ]YES [ ] NO
INTEREST RATE:
TOTAL AMOUNT OF OID:
INTEREST PAYMENT DATES IF OTHER THAN
MARCH 15 AND SEPTEMBER 15: YIELD TO MATURITY:
REGULAR RECORD DATES IF OTHER
THAN MARCH 1 AND SEPTEMBER 1: INITIAL ACCRUAL PERIOD OID:
OPTIONAL REDEMPTION: [ ] YES [ ] NO OPTIONAL INTEREST RATE
RESET: [ ] YES [ ] NO
INITIAL REDEMPTION DATE:
OPTIONAL INTEREST RATE
RESET DATES:
INITIAL REDEMPTION PERCENTAGE:
OTHER/DIFFERENT PROVISIONS:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
SINKING FUND:
<PAGE>
3
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
______________ on the Stated Maturity Date shown above (except to the extent
redeemed or repaid prior to the Stated Maturity Date) and to pay interest, if
any, thereon at the Interest Rate shown above from the Original Issue Date
shown above or from the most recent Interest Payment Date to which interest,
if any, has been paid or duly provided for, semi-annually on March 15 and
September 15 of each year (unless other Interest Payment Dates are shown on
the face hereof) (each, an "INTEREST PAYMENT DATE") until the principal
hereof is paid or made available for payment and on the Stated Maturity Date,
any Redemption Date or Repayment Date (such terms are together hereinafter
referred to as the "MATURITY DATE" with respect to the principal repayable on
such date); PROVIDED, HOWEVER, that any payment of principal (or premium, if
any) or interest, if any, to be made on any Interest Payment Date or on the
Maturity Date that is not a Business Day (as defined below) shall be made on
the next succeeding Business Day with the same force and effect as if made on
such Interest Payment Date or the Maturity Date, as the case may be, and no
additional interest, if any, shall accrue on the amount so payable as a
result of such delayed payment. For purposes of this Security, unless
otherwise specified on the face hereof, "BUSINESS DAY" means any day that is
not a Saturday or Sunday and that is neither a legal holiday nor a day on
which commercial banks are authorized or required by law, regulation or
executive order to close in The City of New York; PROVIDED, HOWEVER, that, if
the Specified Currency from above is a foreign currency, such day is also not
a day on which commercial banks are authorized or required by law, regulation
or executive order to close in the Principal Financial Center (as defined) of
the country issuing the Specified Currency (or, if the Specified Currency is
the euro, such day is also a day on which the Trans-European Automated
Real-Time Gross Settlement Express Transfer (TARGET) System is open).
"Principal Financial Center" means (i) the capital city of the country
issuing the Specified Currency except that with respect to United States
dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch
guilders, South African rand and Swiss francs, the "Principal Financial
Center" shall be The City of New York, Sydney and (solely in the case of the
Specified Currency) Melbourne, Toronto, Frankfurt, Amsterdam, Johannesburg
and Zurich, respectively.
Any interest hereon is accrued from, and including, the immediately
preceding Interest Payment Date in respect of which interest, if any, has been
paid or duly provided for (or from, and including, the Original Issue Date if no
interest has been paid) to, but excluding, the succeeding Interest Payment Date
or the Maturity Date, as the case may be. The interest, if any, so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in the Indenture and subject to certain exceptions described herein
(referred
<PAGE>
4
to on the reverse hereof), be paid to the person (the "HOLDER") in whose name
this Security (or one or more Predecessor Securities) is registered at the close
of business on the March 1 or September 1 (whether or not a Business Day), as
the case may be, next preceding such Interest Payment Date (unless other Regular
Record Dates are specified on the face hereof) (each, a "REGULAR RECORD DATE");
PROVIDED, HOWEVER, that, if this Security was issued between a Regular Record
Date and the initial Interest Payment Date relating to such Regular Record Date,
interest, if any, for the period beginning on the Original Issue Date and ending
on such initial Interest Payment Date shall be paid on the Interest Payment Date
following the next succeeding Regular Record Date to the Holder hereof on such
next succeeding Regular Record Date; and PROVIDED FURTHER that interest, if any,
payable on the Maturity Date will be payable to the person to whom the principal
hereof shall be payable. Any such interest not so punctually paid or duly
provided for on any Interest Payment Date other than the Maturity Date
("DEFAULTED INTEREST") will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a special record date (the "SPECIAL RECORD DATE") for the payment of
such Defaulted Interest to be fixed by the Trustee (referred to on the reverse
hereof), notice whereof shall be given to the Holder of this Security not less
than ten days prior to such Special Record Date, or may be paid at any time in
any other lawful manner, all as more fully provided in the Indenture.
Unless otherwise specified above, all payments in respect of this
Security will be made in U.S. dollars regardless of the Specified Currency
shown above unless the Holder hereof makes the election described below. If
the Specified Currency shown above is other than U.S. dollars, the Exchange
Rate Agent (referred to on the reverse hereof) will arrange to convert any
such amounts so payable in respect hereof into U.S. dollars in the manner
described on the reverse hereof; PROVIDED, HOWEVER, that the Holder hereof
may, if so indicated above, elect to receive all or any specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Security in such Specified Currency by delivery of a written request to the
corporate trust office of the Trustee in The City of New York, on or prior
to the applicable Regular Record Date or at least sixteen days prior to the
Maturity Date, as the case may be. Such request may be in writing (mailed or
hand delivered) or by cable, telex or other form of facsimile transmission.
The Holder hereof may elect to receive payment in such Specified Currency for
all principal, premium, if any, and interest, if any, payments and need not
file a separate election for each payment. Such election will remain in
effect until revoked by written notice to the Trustee, but written notice of
any such revocation must be received by the Trustee on or prior to the
applicable Regular Record Date or at least fifteen days prior to the Maturity
Date, as the case may be.
In the event of an official redenomination of the Specified Currency,
the obligations of the Company with respect to payments on this Security shall,
in all cases, be deemed immediately following such redenomination to provide for
payment of that amount of redenominated currency representing the amount of such
obligations immediately before such
<PAGE>
5
redenomination. In no event shall any adjustment be made to any amount payable
hereunder as a result of any change in the value of the Specified Currency shown
above relative to any other currency due solely to fluctuations in exchange
rates.
Until this Security is paid in full or payment therefor in full is
duly provided for, the Company will at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in The City of New York (which, unless
otherwise specified above, shall be the "Place of Payment"). The Company has
initially appointed The Bank of New York at its corporate trust office in The
City of New York as Paying Agent.
Unless otherwise shown above, payment of interest on this Security
(other than on the Maturity Date) will be made by check mailed to the
registered address of the Holder hereof; PROVIDED, HOWEVER, that, if (i) the
Specified Currency is U.S. dollars and this is a Global Security or (ii) the
Specified Currency is a Foreign Currency, and the Holder has elected to
receive payments in such Specified Currency as provided for above, such
interest payments will be made by transfer of immediately available funds,
but only if appropriate instructions have been received in writing by the
Trustee on or prior to the applicable Regular Record Date. Simultaneously
with any election by the Holder hereof to receive payments in respect hereof
in the Specified Currency (if other than U.S. dollars), such Holder may
provide appropriate instructions to the Trustee, and all such payments will
be made in immediately available funds to an account maintained by the payee
with a bank, but only if such bank has appropriate facilities therefor.
Unless otherwise specified above, the principal hereof (and premium, if any)
and interest, if any, hereon payable on the Maturity Date will be paid in
immediately available funds upon surrender of this Security at the office of
the Trustee maintained for that purpose in the Borough of Manhattan, The City
and State of New York (or at such other location as may be specified above).
The Company will pay any administrative costs imposed by banks in making
payments in immediately available funds but, except as otherwise provided
under Additional Amounts above, any tax, assessment or governmental charge
imposed upon payments will be borne by the Holders of the Securities in
respect of which such payments are made.
Interest on this Security, if any, will be computed on the basis of a
360-day year of twelve 30-day months.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE, INCLUDING, WITHOUT
LIMITATION, THE PROVISIONS RELATING TO THE SUBORDINATION OF THIS SECURITY TO THE
COMPANY'S SENIOR INDEBTEDNESS.
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security 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.
DEERE & COMPANY
By:
-------------------------------------
Authorized Officer
Attest:
----------------------------------
Secretary
Dated: TRUSTEE'S CERTIFICATE OF AUTHENTICATION
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:
--------------------------------------
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
DEERE & COMPANY
SUBORDINATED MEDIUM-TERM NOTE, SERIES C
Section 1. GENERAL. This Security is one of a duly authorized
issue of securities (herein called the "SECURITIES") of the Company, issued
and to be issued in one or more series under an indenture, dated as of
March 15, 1999, as it may be supplemented from time to time (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 a series of which this Security 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. This Security is one of the series designated
on the face hereof which is unlimited in aggregate principal amount.
Section 2. PAYMENTS. If the Specified Currency is other than U.S.
dollars and the Holder hereof fails to elect payment in such Specified Currency,
the amount of U.S. dollar payments to be made in respect hereof will be
determined by the Exchange Rate Agent specified on the face hereof or a
successor thereto (the "EXCHANGE RATE AGENT") based on the highest bid quotation
in The City of New York at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date by the Exchange Rate
Agent for the purchase by the Exchange Rate Agent from three recognized foreign
exchange dealers (one of whom may be the Exchange Rate Agent) selected by the
Exchange Rate Agent and approved by the Company for the purchase by the quoting
dealer of the Specified Currency for U.S. dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Securities scheduled to receive U.S. dollar payments and at which the applicable
dealer commits to execute a contract. If three such bid quotations are not
available, payments will be made in the Specified Currency. All currency
exchange costs will be borne by the Holder of the Securities by deductions from
such payments.
Except as set forth below, if the Specified Currency is other than
U.S. dollars and the Specified Currency is not available due to the imposition
of exchange controls or to other circumstances beyond the Company's control, the
Company will be entitled to satisfy its obligations to the Holder of this
Security by making such payment in U.S. dollars on the basis of the noon buying
rate in The City of New York for cable transfers of such Specified Currency as
certified for customs purposes (or, if not so certified, as otherwise
determined) by the Federal Reserve Bank of New York (the "MARKET EXCHANGE RATE")
for such Specified Currency as computed by the Exchange Rate Agent on the second
Business Day prior to the applicable payment date or, if the Market Exchange
Rate is then not available, on the basis of the most recently available Market
Exchange Rate or as otherwise indicated above.
<PAGE>
2
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion (except to the extent expressly provided that
any determination is subject to approval by the Company) and, in the absence of
manifest error, shall be conclusive for all purposes and binding on the Holder
of this Security and the Exchange Rate Agent shall have no liability therefor.
All currency exchange costs will be borne by the Company unless the
Holder of this Security has made the election to receive payments in the
Specified Currency. In that case, the Holder shall bear its pro rata portion of
currency exchange costs, if any, by deductions from payments otherwise due to
such Holder.
References herein to "U.S. DOLLARS" or "U.S. $" or "$" are to the
currency of the United States of America.
Section 3. REDEMPTION. If so specified on the face hereof, the
Company may at its option redeem this Security in whole or from time to time in
part in increments of $1000 (provided that any remaining principal amount of
this Security shall not be less than the Minimum Denomination specified on the
face hereof) on or after the date designated as the Initial Redemption Date on
the face hereof at 100% of the unpaid principal amount hereof or the portion
thereof redeemed (or, if this Security is a Discount Security, such lesser
amount as is provided for below) multiplied by the Initial Redemption Percentage
specified on the face hereof, together with accrued interest, if any, to the
Redemption Date. Such Initial Redemption Percentage shall decline at each
anniversary of the Initial Redemption Date by an amount equal to the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
redemption price is 100% of the unpaid principal amount hereof. The Company may
exercise such option by causing the Trustee to mail a notice of such redemption
at least 30 but not more than 60 days prior to the Redemption Date. In the
event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of
the Holder hereof upon the cancellation hereof. If less than all of the
Securities with like tenor and terms to this Security are to be redeemed, the
Securities to be redeemed shall be selected by the Trustee by such method as
the Trustee shall deem fair and appropriate. However, if less than all the
Securities of the series, of which this Security is a part, with differing
issue dates, interest rates or formula 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.
Section 4. REPAYMENT. If so specified on the face hereof, this
Security shall be repayable prior to the Stated Maturity Date at the option of
the Holder on each applicable Optional Repayment Date shown on the face hereof
at a repayment price equal to 100% of the principal amount to be repaid,
together with accrued interest, if any, to the Repayment Date. In order for
this Security to be repaid, the Trustee must receive at least 30 but not more
than
<PAGE>
3
60 days prior to an Optional Repayment Date, this Security with the form
attached hereto entitled "OPTION TO ELECT REPAYMENT" duly completed. Any tender
of this Security for repayment shall be irrevocable. The repayment option may
be exercised by the Holder of this Security in whole or in part in increments of
$1,000 (provided that any remaining principal amount of this Security shall not
be less than the Minimum Denomination specified on the face hereof). Upon any
partial repayment, this Security shall be canceled and a new Security or
Securities for the remaining principal amount hereof shall be issued in the name
of the Holder of this Security.
Section 5. SINKING FUND. Unless otherwise specified on the face
hereof, this Security will not be subject to any sinking fund.
Section 6. DISCOUNT SECURITIES. If this Security (such a Security
being referred to as a "DISCOUNT SECURITY") (a) has been issued at an Issue
Price lower, by more than a DE MINIMIS amount (as determined under United States
federal income tax rules applicable to original issue discount instruments),
than the principal amount hereof and (b) would be considered an original issue
discount security for United States federal income tax purposes, then the amount
payable on this Security in the event of redemption by the Company, repayment at
the option of the Holder or acceleration of the maturity hereof, in lieu of the
principal amount due at the Stated Maturity Date hereof, shall be the Amortized
Face Amount (as defined below) of this Security as of the date of such
redemption, repayment or acceleration. The "AMORTIZED FACE AMOUNT" of this
Security shall be the amount equal to the sum of (a) the Issue Price (as set
forth on the face hereof) plus (b) the aggregate of the portions of the original
issue discount (the excess of the amounts considered as part of the "stated
redemption price at maturity" of this Security within the meaning of
Section 1273(a)(2) of the Internal Revenue Code of 1986, as amended (the
"CODE"), whether denominated as principal or interest, over the Issue Price of
this Security) which shall theretofore have accrued pursuant to Section 1272 of
the Code (without regard to Section 1272(a)(7) of the Code) from the date of
issue of this Security to the date of determination, minus (c) any amount
considered as part of the "stated redemption price at maturity" of this Security
which has been paid on this Security from the date of issue to the date of
determination.
Section 7. MODIFICATION AND WAIVERS; SUBORDINATION; OBLIGATION OF THE
COMPANY ABSOLUTE. The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series. Such amendment may be effected 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, on behalf of the
Holders of all Outstanding Securities, 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
<PAGE>
4
amount of the Outstanding Securities of any series to waive on behalf of all
of the Holders of Securities of such series certain past defaults under the
Indenture and their consequences. Any such consent or waiver shall be
conclusive and binding upon the Holder of this Security and upon all future
Holders of this Security and of any Security 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 Security.
The indebtedness evidenced by the Securities is, to the extent and in
the manner set forth in the Indenture, expressly subordinated and subject in
right of payment to the prior payment in full of all Senior Indebtedness, and
this Security is issued subject to such provisions of the Indenture. Each
Holder of this Security, 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.
No reference herein to the Indenture and no provision of this Security
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 Security at the times, place and rate, and in the
Currency herein prescribed.
Section 8. DEFEASANCE AND COVENANT DEFEASANCE. The Indenture
contains provisions for defeasance at any time of (a) the entire indebtedness of
the Company on this Security and (b) certain restrictive covenants and the
related defaults and Events of Default, upon compliance by the Company with
certain conditions set forth therein, which provisions apply to this Security,
unless otherwise specified on the face hereof.
Section 9. MINIMUM DENOMINATION. Unless otherwise provided on the
face hereof, this Security is issuable only in registered form without coupons
in denominations of $1,000 or any amount in excess thereof which is an integral
multiple of $1,000. If this Security is denominated in a Specified Currency
other than U.S. Dollars or is a Discount Security, this Security shall be
issuable in the denominations set forth on the face hereof.
Section 10. REGISTRATION OF TRANSFER. As provided in the
Indenture and subject to certain limitations herein and therein set forth,
the transfer of this Security is registrable in the Security Register upon
surrender of this Security for registration of transfer at a Place of Payment
for the series of Securities of which this Security forms a part, 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 his attorney duly authorized in writing, and thereupon one
or more new Securities of this series, of like authorized denominations and
for the same aggregate principal amount, will be issued to the designated
transferee or transferees.
<PAGE>
5
If the registered owner of this Security is the Depository (such a
Security being referred to as a "GLOBAL SECURITY") and (i) 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 after notice to the
Company or (ii) an Event of Default occurs, the Company will issue Securities
in certificated form in exchange for this Global Security. In addition, the
Company may at any time, and in its sole discretion, determine not to have
Securities represented by a Global Security and, in such event, will issue
Securities in certificated form in exchange in whole for this Global
Security. In any such instance, an owner of a beneficial interest in this
Global Security will be entitled to physical delivery of Securities in
certificated form equal in principal amount to such beneficial interest and
to have such Securities registered in its name. Securities so issued in
certificated form will be issued in denominations of $1,000 (or such other
Minimum Denomination specified on the face hereof) or any amount in excess
thereof which is an integral multiple of $1,000 (or such Minimum
Denomination) and will be issued in registered form only, without coupons.
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 Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
Section 11. EVENTS OF DEFAULT. If an Event of Default with respect
to the Securities of the series of which this Security forms a part shall have
occurred and be continuing, the principal of this Security may be declared due
and payable in the manner and with the effect provided in the Indenture.
Section 12. DEFINED TERMS. All terms used in this Security which are
defined in the Indenture and are not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
Section 13. GOVERNING LAW. Unless otherwise specified on the face
hereof, this Security 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.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay this Security (or the portion thereof specified below), pursuant to its
terms, on the Optional Repayment Date first occurring after the date of receipt
of the within Security as specified below (the "REPAYMENT DATE"), at a Repayment
Price equal to 100% of the principal amount thereof, together with interest
thereon accrued to the Repayment Date, to the undersigned at:
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
(Please Print or Type Name and Address of the Undersigned.)
FOR THIS OPTION TO ELECT REPAYMENT TO BE EFFECTIVE, THIS SECURITY WITH
THE OPTION TO ELECT REPAYMENT DULY COMPLETED MUST BE RECEIVED AT LEAST 30 BUT
NOT MORE THAN 45 DAYS PRIOR TO THE REPAYMENT DATE (OR, IF SUCH REPAYMENT DATE IS
NOT A BUSINESS DAY, THE NEXT SUCCEEDING BUSINESS DAY) BY THE COMPANY AT ITS
OFFICE OR AGENCY IN THE CITY OF NEW YORK, WHICH WILL BE LOCATED INITIALLY AT THE
OFFICE OF THE TRUSTEE AT C/O THE BANK OF NEW YORK, 101 BARCLAY STREET, NEW YORK,
10286; ATTENTION: CORPORATE TRUST ADMINISTRATION.
If less than the entire principal amount of this Security is to be
repaid, specify the portion thereof (which shall be $1,000 or an integral
multiple thereof) which is to be repaid: $__________.
If less than the entire principal amount of the within Security is to
be repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount ($1,000 or any integral multiple of $1,000; PROVIDED that any
remaining principal amount of this Security shall not be less than the Minimum
Denomination): $________.
Dated:
----------
-----------------------------------
Note: The signature to this Option to Elect Repayment
must correspond with the name as written upon the face
of this Security in every particular without
alterations or enlargement or any change whatsoever.
<PAGE>
--------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT -...........Custodian................
(Cust.) (Minor)
Under Uniform Gifts to Minors Act
....................................
(State)
Additional abbreviations may also be used though not in the above list.
--------------------
FOR VALUE RECEIVED, the undersigned
hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ------------------------------
| |
- -------------------------------------------------------------------------------
Please print or type name and address, including zip code of assignee
- -------------------------------------------------------------------------------
the within Security of DEERE & COMPANY and all rights thereunder and does hereby
irrevocably constitute and appoint
- -------------------------------------------------------------------------------
Attorney to transfer the said Security on the books of the within-named Company,
with full power of substitution in the premises.
Dated
------------------------
SIGNATURE GUARANTEED:
-----------------------------
- -------------------------------
------------------------------------------------------
NOTICE: The signature to this assignment must
correspond with the name as it appears upon the face of
the within Security in every particular, without
alteration or enlargement or any change whatsoever.
<PAGE>
[FACE OF NOTE]
CUSIP NO.
REGISTERED
PRINCIPAL AMOUNT
No. FL -
DEERE & COMPANY
SUBORDINATED MEDIUM-TERM NOTE, SERIES C,
Due from 9 Months to 30 Years from Date of Issue
(FLOATING RATE)
If the registered owner of this Security (as indicated below) is The
Depository Trust Company (the "DEPOSITORY") or a nominee of the Depository, this
Security is a Global Security and the following two legends apply:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND SUCH
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO., OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
UNLESS AND UNTIL THIS CERTIFICATE IS EXCHANGED IN WHOLE OR IN PART FOR
SECURITIES IN CERTIFICATED FORM, THIS CERTIFICATE MAY NOT BE TRANSFERRED EXCEPT
AS A WHOLE BY THE DEPOSITORY TO A NOMINEE THEREOF OR BY A NOMINEE THEREOF TO THE
DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH
NOMINEE TO A SUCCESSOR OF THE DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR.
IF APPLICABLE, THE "TOTAL AMOUNT OF OID", "YIELD TO MATURITY" AND "INITIAL
ACCRUAL PERIOD OID" (COMPUTED UNDER THE APPROXIMATE METHOD) BELOW WILL BE
COMPLETED SOLELY FOR THE PURPOSES OF APPLYING THE FEDERAL INCOME TAX ORIGINAL
ISSUE DISCOUNT ("OID") RULES.
<PAGE>
2
ISSUE PRICE: YIELD TO MATURITY:
ORIGINAL ISSUE DATE: OTHER/DIFFERENT PROVISIONS:
STATED MATURITY DATE: OPTION TO ELECT REPAYMENT:
[ ] YES [ ] NO
BASE RATE: OPTIONAL REPAYMENT DATE[S]:
If LIBOR: [ ] LIBOR Telerate
[ ] LIBOR Reuters
[ ] Other:
Designated LIBOR Page: OPTIONAL REDEMPTION: [ ] YES [ ] NO
Designated LIBOR Currency:
INITIAL REDEMPTION DATE:
If CMT Rate,
Designated CMT Telerate Page:
Designated CMT Maturity Index: INITIAL REDEMPTION PERCENTAGE:
INITIAL INTEREST RATE:
RENEWABLE: [ ] YES [ ] NO
RENEWAL DATE:
ANNUAL REDEMPTION PERCENTAGE REDUCTION:
EXTENDIBLE: [ ] YES [ ] NO
FINAL MATURITY DATE:
MINIMUM DENOMINATION:
INDEX MATURITY: [ ] $1,000
[ ] Other:
SPREAD (PLUS OR MINUS):
SPREAD MULTIPLIER:
SPECIFIED CURRENCY:
CALCULATION AGENT: United States Dollars:
[ ] YES [ ] NO
Foreign Currency:
CALCULATION DATE:
OPTION TO RECEIVE PAYMENTS
IN SPECIFIED CURRENCY
SINKING FUND: OTHER THAN U.S. DOLLARS:
[ ] YES [ ] NO
MAXIMUM INTEREST RATE: EXCHANGE RATE AGENT:
MINIMUM INTEREST RATE:
REFERENCE BANKS:
INTEREST DETERMINATION DATE:
ADDITIONAL AMOUNTS:
INTEREST RESET PERIOD:
DEFEASANCE: [ ] YES [ ] NO
INTEREST RESET DATES:
COVENANT DEFEASANCE: [ ] YES [ ] NO
INTEREST PAYMENT PERIOD: OPTIONAL INTEREST RATE RESET:
[ ] YES [ ] NO
INTEREST PAYMENT DATES:
OPTIONAL INTEREST RATE RESET DATES:
TOTAL AMOUNT OF OID:
INITIAL ACCRUAL PERIOD OID:
<PAGE>
3
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 _____________
__________ on the Stated Maturity Date shown above (except to the extent
redeemed or repaid prior to the Stated Maturity Date) and to pay interest
thereon at the Initial Interest Rate shown above from the Original Issue Date
shown above until the first Interest Reset Date shown above following the
Original Issue Date (if the first Interest Reset Date is later than the Original
Issue Date) and thereafter at the interest rate determined by reference to the
Base Rate shown above, plus or minus the Spread, if any, or multiplied by the
Spread Multiplier, if any, shown above, or determined by reference to such other
formula or adjusted in such other manner, in each case calculated in accordance
with the provisions on the reverse hereof, until the principal hereof is paid or
duly made available for payment. The Company will pay interest on each Interest
Payment Date, if any, specified above, commencing with the first Interest
Payment Date next succeeding the Original Issue Date, and on the Stated Maturity
Date, any Redemption Date or Repayment Date (each such day being hereinafter
referred to as a "MATURITY DATE" with respect to the principal repayable on such
date); PROVIDED, HOWEVER, that any payment of principal (or premium, if any) or
interest, if any, to be made on any Interest Payment Date or on the Maturity
Date that is not a Business Day (as defined below) shall be made on the next
succeeding Business Day (except that if the Base Rate specified above is LIBOR,
and such day falls in the next succeeding calendar month, such payment will be
made on the next preceding Business Day) as described on the reverse hereof.
For purposes of this Security, unless otherwise specified on the face hereof,
"BUSINESS DAY" means any day that is not a Saturday or Sunday and that is
neither a legal holiday nor a day on which commercial banks are authorized or
required by law, regulation or executive order to close in The City of New York;
PROVIDED, HOWEVER, that, if the Specified Currency shown above is a Foreign
Currency, such day is also not a day on which commercial banks are authorized or
required by law, regulation or executive order to close in the Principal
Financial Center (as defined) of the country issuing the Specified Currency (or,
if the Specified Currency is the euro, such day is also a day on which the
Trans-European Automated Real-Time Gross Settlement Express Transfer (TARGET)
System is open); PROVIDED, FURTHER, that, with respect to Securities as to which
LIBOR is an applicable Base Rate, such day is also a London Business Day.
"LONDON BUSINESS DAY" means a day on which commercial banks are open for
business (including dealings in the LIBOR Currency (as defined below)) in
London. "PRINCIPAL FINANCIAL CENTER" means (i) the capital city of the country
issuing the Specified Currency or (ii) the capital city of the country to which
the LIBOR Currency relates, as applicable, except, in the case of (i) or (ii)
above, that with respect to United States dollars, Australian dollars, Canadian
dollars, Deutsche marks, Dutch guilders, Portuguese escudos, South African rand
and Swiss francs, the "Principal Financial Center" shall be The City of New
York, Sydney and (solely in the case of the Specified
<PAGE>
4
Currency) Melbourne, Toronto, Frankfurt, Amsterdam, London (solely in the case
of the LIBOR Currency), Johannesburg and Zurich, respectively.
Interest on this Security will accrue from, and including, the
immediately preceding Interest Payment Date to which interest has been paid or
duly provided for (or from, and including, the Original Issue Date if no
interest has been paid or duly provided for) to, but excluding, the applicable
Interest Payment Date or the Maturity Date, as the case may be (each, an
"Interest Period"). The interest, if any, so payable, and punctually paid or
duly provided for, on any Interest Payment Date will, as provided in the
Indenture and subject to certain exceptions described herein (referred to on the
reverse hereof), be paid to the person (the "HOLDER") in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the fifteenth day (whether or not a Business Day) next preceding
such Interest Payment Date (a "REGULAR RECORD DATE"); PROVIDED, HOWEVER, that,
if this Security was issued between a Regular Record Date and the initial
Interest Payment Date relating to such Regular Record Date, interest, if any,
for the period beginning on the Original Issue Date and ending on such initial
Interest Payment Date shall be paid on the Interest Payment Date following the
next succeeding Regular Record Date to the Holder on such Regular Record Date;
and PROVIDED FURTHER that interest, if any, payable on the Maturity Date will be
payable to the person to whom the principal hereof shall be payable. Any such
interest not so punctually paid or duly provided for on any Interest Payment
Date other than the Maturity Date ("DEFAULTED INTEREST") will forthwith cease to
be payable to the Holder on such Regular Record Date and may either be paid to
the person in whose name this Security (or one or more Predecessor Securities)
is registered at the close of business on a special record date (the "SPECIAL
RECORD DATE") for the payment of such Defaulted Interest to be fixed by the
Trustee (referred to on the reverse hereof), notice whereof shall be given to
the Holder of this Security not less than ten days prior to such Special Record
Date, or may be paid at any time in any other lawful manner, all as more fully
provided in the Indenture.
Unless otherwise specified above, all payments in respect of this
Security will be made in U.S. dollars regardless of the Specified Currency
shown above unless the Holder hereof makes the election described below. If
the Specified Currency shown above is other than U.S. dollars, the Exchange
Rate Agent (referred to on the reverse hereof) will arrange to convert any
such amounts so payable in respect hereof into U.S. dollars in the manner
described on the reverse hereof; PROVIDED, HOWEVER, that the Holder hereof
may, if so indicated above, elect to receive all or a specified portion of
any payment of principal, premium, if any, and/or interest in respect of this
Security in such Specified Currency by delivery of a written request to the
corporate trust office of the Trustee in The City of New York, on or prior to
the applicable Regular Record Date or at least fifteen days prior to the
Maturity Date, as the case may be. Such request may be in writing (mailed or
hand delivered) or by cable, telex or other form of facsimile transmission.
The Holder hereof may elect to receive payment in such Specified Currency for
all principal and interest payments and need not file a separate election for
each payment. Such election will remain in effect until revoked by written
notice to the Trustee, but written notice of any such revocation must be
received by the
<PAGE>
5
Trustee on or prior to the Regular Record Date or at least fifteen days prior to
the Maturity Date, as the case may be.
In the event of an official redenomination of the Specified Currency,
the obligations of the Company with respect to payments on this Security shall,
in all cases, be deemed immediately following such redenomination to provide for
payment of that amount of redenominated currency representing the amount of such
obligations immediately before such redenomination. In no event shall any
adjustment be made to any amount payable hereunder as a result of any change in
the value of the Specified Currency shown above relative to any other currency
due solely to fluctuations in exchange rates.
Until the Securities are paid in full or payment therefor in full is
duly provided for, the Company will at all times maintain a Paying Agent (which
Paying Agent may be the Trustee) in The City of New York (which, unless
otherwise specified above, shall be the "PLACE OF PAYMENT"). The Company has
initially appointed The Bank of New York at its corporate trust office in The
City of New York as paying agent.
Unless otherwise shown above, payment of interest on this Security
(other than on the Maturity Date) will be made by check mailed to the
registered address of the Holder hereof; PROVIDED, HOWEVER, that, if (i) the
Specified Currency is U.S. dollars and this is a Global Security or (ii) the
Specified Currency is a Foreign Currency, and the Holder has elected to
receive payments in such Specified Currency as provided for above, such
interest payments will be made by transfer of immediately available funds,
but only if appropriate instructions have been received in writing by the
Trustee on or prior to the applicable Regular Record Date. Simultaneously
with any election by the Holder hereof to receive payments in respect hereof
in the Specified Currency (if other than U.S. dollars), such Holder may
provide appropriate instructions to the Trustee, and all such payments will
be made in immediately available funds to an account maintained by the payee
with a bank, but only if such bank has appropriate facilities therefor.
Unless otherwise specified above, the principal hereof (and premium, if any)
and interest hereon payable on the Maturity Date will be paid in immediately
available funds upon surrender of this Security at the office of the Trustee
maintained for that purpose in the Borough of Manhattan, The City and State
of New York (or at such other location as may be specified above). The
Company will pay any administrative costs imposed by banks in making payments
in immediately available funds, but, except as otherwise provided under
Additional Amounts above, any tax, assessment or governmental charge imposed
upon payments will be borne by the Holders of the Securities in respect of
which such payments are made.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY
SET FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE, INCLUDING, WITHOUT
LIMITATION, THE PROVISIONS RELATING TO THE SUBORDINATION OF THIS SECURITY TO THE
COMPANY'S SENIOR INDEBTEDNESS.
<PAGE>
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security 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.
DEERE & COMPANY
By:
--------------------------------------
Authorized Officer
Attest:
---------------------------------
Secretary
Dated: TRUSTEE'S CERTIFICATE OF AUTHENTICATION
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:
--------------------------------------
Authorized Signatory
<PAGE>
[REVERSE OF NOTE]
DEERE & COMPANY
SUBORDINATED MEDIUM-TERM NOTE, SERIES C
Section 1. GENERAL. This Security is one of a duly authorized
issue of securities (herein called the "SECURITIES") of the Company, issued
and to be issued in one or more series under an indenture, dated as of
March 15, 1999, as it may be supplemented from time to time (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 a series of which this Security 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. This Security is one of the series designated
on the face hereof which is unlimited in aggregate principal amount.
Section 2. PAYMENTS. If the Specified Currency is other than U.S.
dollars and the Holder hereof fails to elect payment in such Specified Currency,
the amount of U.S. dollar payments to be made in respect hereof will be
determined by the Exchange Rate Agent specified on the face hereof or a
successor thereto (the "EXCHANGE RATE AGENT") based on the highest bid quotation
in The City of New York at approximately 11:00 A.M., New York City time, on the
second Business Day preceding the applicable payment date by the Exchange Rate
Agent for the purchase by the Exchange Rate Agent of the Specified Currency for
U.S. dollars from three recognized foreign exchange dealers (one of whom may be
the Exchange Rate Agent) selected by the Exchange Rate Agent and approved by the
Company for the purchase by the quoting dealer of the Specified Currency for
U.S. dollars for settlement on such payment date in the aggregate amount of the
Specified Currency payable to all Holders of Securities scheduled to receive
U.S. dollar payments and at which the applicable dealer commits to execute a
contract. If three such bid quotations are not available, payments will be made
in the Specified Currency. All currency exchange costs will be borne by the
Holder of the Securities by deductions from such payments.
Except as set forth below, if the Specified Currency is other than
U.S. dollars and the Specified Currency is not available due to the imposition
of exchange controls or to other circumstances beyond the Company's control, the
Company will be entitled to satisfy its obligations to the Holder of this
Security by making such payment in U.S. dollars on the basis of the noon buying
rate in The City of New York for cable transfers of such Specified Currency as
certified for customs purposes (or, if not so specified, as otherwise
determined) by the Federal Reserve Bank of New York (the "MARKET EXCHANGE RATE")
for such Specified Currency as computed by the Exchange Rate Agent on the second
Business Day prior to the
<PAGE>
2
applicable payment date or, if the Market Exchange Rate is then not available,
on the basis of the most recently available Market Exchange Rate or as otherwise
indicated above.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion (except to the extent expressly provided that
any determination is subject to approval by the Company) and, in the absence of
manifest error, shall be conclusive for all purposes and binding on the Holder
of this Security and the Exchange Rate Agent shall have no liability therefor.
All currency exchange costs will be borne by the Company unless the
Holder of this Security has made the election to receive payments in the
Specified Currency. In that case, the Holder shall bear its pro rata portion of
currency exchange costs, if any, by deductions from payments otherwise due to
such Holder.
Section 3. INTEREST RATE CALCULATIONS. Unless otherwise set forth on
the face hereof, the following provisions of this Section 3 shall apply to the
calculation of interest on this Security. If the first Interest Reset Date is
later than the Original Issue Date, this Security will bear interest from its
Original Issue Date to the first Interest Reset Date at the Initial Interest
Rate set forth on the face hereof. Thereafter, the interest rate hereon for
each Interest Reset Period (as defined below) will be determined by reference to
the Base Rate set forth on the face hereof, as adjusted by the Spread, the
Spread Multiplier or other formula, if any, set forth on the face hereof.
As set forth on the face hereof, this Security may also have either or
both of the following: (i) a maximum limitation, or ceiling, on the rate at
which interest may accrue during any Interest Period (as defined below)
("MAXIMUM INTEREST RATE"); and (ii) a minimum limitation, or floor, on the rate
at which interest may accrue during any Interest Period ("MINIMUM INTEREST
RATE"). In addition to any Maximum Interest Rate that may be set forth on the
face hereof, the interest rate on this Security will in no event be higher than
the maximum rate permitted by New York law, as the same may be modified by
United States law of general application.
The rate of interest hereon will be reset daily, weekly, monthly,
quarterly, semi-annually or annually or at another interval (each, an "INTEREST
RESET PERIOD"), as set forth on the face hereof. The date or dates on which
interest will be reset (each, an "INTEREST RESET DATE") will be, if this
Security resets (i) daily, each Business Day; (ii) weekly, the Wednesday of each
week (unless the Base Rate set forth on the face hereof is the Treasury Rate),
in which case, the Tuesday of each week (except as provided below); (iii)
monthly, the third Wednesday of each month; (iv) quarterly, the third Wednesday
of March, June, September and December of each year; (v) semi-annually, the
third Wednesday of each of the two months set forth on the face hereof; and (vi)
annually, the third Wednesday of the month of each year set forth on the face
hereof; PROVIDED, HOWEVER, that if the first Interest Reset Date is later than
the
<PAGE>
3
Original Issue Date, the interest rate in effect from the Original Issue Date to
the first Interest Reset Date will be the Initial Interest Rate as set forth on
the face hereof. If the Base Rate set forth on the face hereof is the Treasury
Rate and a Treasury auction shall fall on the Interest Reset Date for this
Security, then such Interest Reset Date shall instead be the first Business Day
immediately following such Treasury auction. If any Interest Reset Date would
otherwise be a day that is not a Business Day, such Interest Reset Date shall be
postponed to the next succeeding Business Day, except that, if the Base Rate set
forth on the face hereof is LIBOR, if such Business Day is in the next
succeeding calendar month, such Interest Reset Date shall be the immediately
preceding Business Day.
The interest payable hereon on each Interest Payment Date and on the
Maturity Date shall be the amount of interest accrued from, and including, the
Original Issue Date or the next preceding Interest Payment Date in respect of
which interest, if any, has been paid or duly provided for, as the case may be,
to, but excluding, the next succeeding Interest Payment Date or the Maturity
Date, as the case may be; PROVIDED, HOWEVER, that, if the interest rate is reset
daily or weekly, interest payable on any Interest Payment Date will be the
amount of interest accrued from and including the Original Issue Date or from
but excluding the last Regular Record Date through which interest has been paid
to and including the Regular Record Date immediately preceding such Interest
Payment Date, except that interest payable on the Maturity Date will include
interest accrued to, but excluding, the Maturity Date (each such period, an
"INTEREST PERIOD"). If the Maturity Date falls on a day which is not a Business
Day, the payment of principal, premium, if any, and interest, if any, with
respect to the Maturity Date will be paid on the next succeeding Business Day
with the same force and effect as if made on the Maturity Date, and no interest
shall accrue on the amount so payable as a result of such delayed payment. If
an Interest Payment Date other than the Maturity Date falls on a day that is not
a Business Day, such Interest Payment Date will be postponed to the next day
that is a Business Day and interest will accrue for the period of such
postponement (except if the Base Rate specified above is LIBOR, and such day
falls in the next succeeding calendar month, such Interest Payment Date will be
the immediately preceding Business Day), it being understood that, to the extent
this sentence is inconsistent with Section 112 of the Indenture, the provisions
of this sentence shall apply in lieu of such Section.
Accrued interest will be calculated by multiplying the principal
amount hereof by an accrued interest factor. Such accrued interest factor will
be computed by adding the interest factor calculated for each day in the
Interest Period or from the last date from which accrued interest is being
calculated. The interest factor for each such day is computed by dividing the
interest rate applicable on such day by 360, if the Base Rate set forth on the
face hereof is the CD Rate, Commercial Paper Rate, Eleventh District Cost Funds
Rate, Federal Funds Rate, Prime Rate or LIBOR (as described below), or by the
actual number of days in the year, if the Base Rate set forth on the face hereof
is the Treasury Rate or the CMT Rate (each as described below). The interest
rate applicable to any day that is an Interest Reset Date is the interest rate
as determined, in accordance with the procedures hereinafter set forth, with
<PAGE>
4
respect to the Interest Determination Date (as defined below) pertaining to such
Interest Reset Date. The interest rate applicable to any other day is the
interest rate for the immediately preceding Interest Reset Date (or, if none,
the Initial Interest Rate, as set forth on the face hereof).
All percentages resulting from any calculation with respect hereto
will be rounded, if necessary, to the nearest one hundred-thousandth of a
percentage point, with five one-millionths of a percentage point rounded upward
(E.G., 7.123455% (or 0.07123455) being rounded to 7.12346% (or 0.0712346) and
7.123454% (or 0.07123454) being rounded to 7.12345% (or 0.0712345)), and all
currency amounts used in or resulting from such calculation will be rounded to
the nearest one-hundredth of a unit (with five one-thousandths of a unit being
rounded upwards).
Interest will be payable on, if this Security resets (i) daily, weekly
or monthly, the third Wednesday of each month; (ii) quarterly, the third
Wednesday of March, June, September and December of each year; (iii)
semi-annually, the third Wednesday of the two months set forth on the face
hereof; and (iv) annually, the third Wednesday of the month set forth on the
face hereof (each, an "INTEREST PAYMENT DATE"), and in each case, on the
Maturity Date.
If the Base Rate set forth on the face hereof is the CD Rate, the
CMT Rate, the Commercial Paper Rate, the Federal Funds Rate or the Prime
Rate, the "INTEREST DETERMINATION DATE" pertaining to an Interest Reset Date
for this Security will be the second Business Day immediately preceding such
Interest Reset Date; if the Base Rate set forth on the face hereof is LIBOR,
the "INTEREST DETERMINATION DATE" pertaining to an Interest Reset Date for
this Security will be the second London Banking Day immediately preceding
such Interest Reset Date, unless the Designated LIBOR Currency is British
pounds sterling, in which case the "Interest Determination Date" will be such
Interest Reset Date; and if the Base Rate set forth on the face hereof is the
Treasury Rate, the "INTEREST DETERMINATION DATE" pertaining to an Interest
Reset Date for this Security will be the day of the week in which such
Interest Reset Date falls on which Treasury bills (as defined below) would
normally be auctioned. Treasury bills are usually sold at auction on Monday
of each week, unless that day is a legal holiday, in which case the auction
is usually held on the following Tuesday, except that sometimes such auction
may be held on the preceding Friday. If, as the result of a legal holiday,
an auction is so held on the preceding Friday, such Friday will be the
Interest Determination Date pertaining to the Interest Reset Date occurring
in the next succeeding week.
If the Base Rate set forth on the face hereof is the Eleventh District
Cost of Funds Rate, the "INTEREST DETERMINATION DATE" pertaining to an Interest
Reset Date for this Security is the last Business Day of the month immediately
preceding the applicable Interest Reset Date in which the Federal Home Loan Bank
of San Francisco published the index.
<PAGE>
5
Unless otherwise set forth on the face hereof, the "CALCULATION DATE",
where applicable, pertaining to an Interest Determination Date is the earlier of
(i) the tenth calendar day after such Interest Determination Date, or if any
such day is not a Business Day, the next succeeding Business Day and (ii) the
Business Day immediately preceding the applicable Interest Payment Date or the
Maturity Date, as the case may be.
The Company will appoint and enter into an agreement with an agent
(a "CALCULATION AGENT") to calculate the rate of interest on the Securities
of this series which bear interest at a floating rate. Unless otherwise set
forth on the face hereof. The Bank of New York will be the Calculation Agent.
At the request of the Holder hereof, the Calculation Agent will provide the
interest rate then in effect and, if determined, the interest rate that will
become effective on the next Interest Reset Date.
Subject to applicable provisions of law and except as specified
herein, with respect to each Interest Determination Date, the rate of interest
shall be the rate determined by the Calculation Agent in accordance with the
provisions of the applicable heading below.
DETERMINATION OF CD RATE. If the Base Rate set forth on the face
hereof is the CD Rate, this Security will bear interest for each Interest
Reset Period at the interest rate calculated with reference to the CD Rate
and the Spread, Spread Multiplier or other formula, if any, set forth on the
face hereof. Unless otherwise set forth on the face hereof, the "CD RATE"
means, with respect to any Interest Determination Date pertaining thereto,
the rate on such date for negotiable certificates of deposit having the Index
Maturity set forth on the face hereof as published in H.15(519) (as defined
below) under the heading "CDS (SECONDARY MARKET)" or, if not yet published by
3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, the CD Rate will be the rate on such Interest
Determination Date for negotiable certificates of deposit having the Index
Maturity set forth on the face hereof as published in H.15 Daily Update under
the caption "CDS (Secondary Market)." If by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date such rate
is not yet published in either H.15(519) or H.15 Daily Update, the CD Rate on
such Interest Determination Date will be calculated by the Calculation Agent
and will be the average of the secondary market offered rates as of 10:00 A.M.,
New York City time, on such Interest Determination Date, of three leading
non-bank dealers in negotiable U.S. dollar certificates of deposit in The
City of New York selected by the Calculation Agent (after consultation with
the Company) for negotiable certificates of deposit of major United States
money market banks of the highest credit standing (in the market for
negotiable certificates of deposit) having a remaining maturity closest to
the Index Maturity set forth on the face hereof in a denomination of U.S.
$5,000,000; PROVIDED, HOWEVER, that, if the dealers selected as aforesaid by
the Calculation Agent are not quoting as mentioned in this sentence, the
interest rate for the period commencing on the Interest Reset Date following
such Interest Determination Date will be the interest rate in effect on such
Interest Determination Date. "H.15(519)" means the weekly statistical
release designated as such, or any successor
<PAGE>
6
publication, published by the Board of Governors of the Federal Reserve System.
"H.15 DAILY UPDATE" means the daily update of H.15(519), available through the
world-wide-web site of the Board of Governors of the Federal Reserve System at
http://www.bog.frb.fed.us/releases/h15/update, or any successor site or
publication.
DETERMINATION OF COMMERCIAL PAPER RATE. If the Base Rate set forth
on the face hereof is the Commercial Paper Rate, this Security will bear
interest for each Interest Reset Period at the interest rate calculated with
reference to the Commercial Paper Rate and the Spread, Spread Multiplier or
other formula, if any, set forth on the face hereof. Unless otherwise set
forth on the face hereof, the "COMMERCIAL PAPER RATE" means, with respect to
any Interest Determination Date pertaining thereto, the Money Market Yield
(calculated as described below) of the rate on such date for commercial paper
having the Index Maturity set forth on the face hereof, as such rate shall be
published in H.15(519) under the caption "COMMERCIAL PAPER - NONFINANCIAL"
or, if not yet published by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Commercial Paper
Rate shall be the Money Market Yield of the rate on such Interest
Determination Date for commercial paper having the Index Maturity set forth
on the face hereof as published in H.15 Daily Update under the caption
"COMMERCIAL PAPER -NONFINANCIAL". If by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date such rate
is not yet published in either H.15(519) or H.15 Daily Update, the Commercial
Paper Rate on such Interest Determination Date shall be calculated by the
Calculation Agent and shall be the Money Market Yield of the average of the
offered rates as of 11:00 A.M., New York City time, on such Interest
Determination Date of three leading dealers in commercial paper in The City
of New York selected by the Calculation Agent (after consultation with the
Company) for commercial paper having the Index Maturity set forth on the face
hereof placed for an industrial issuer whose bond rating is "Aa", or the
equivalent, from a nationally recognized securities rating agency; PROVIDED,
HOWEVER, that, if the dealers selected as aforesaid by the Calculation Agent
are not quoting as mentioned in this sentence, the interest rate for the
period commencing on the Interest Reset Date following such Interest
Determination Date will be the interest rate in effect on such Interest
Determination Date.
"MONEY MARKET YIELD" shall be a yield (expressed as a percentage)
calculated in accordance with the following formula:
MONEY MARKET YIELD = D X 360 x 100
---------------
360 - (D x M)
where "D" refers to the applicable per annum rate for commercial paper quoted on
a bank discount basis and expressed as a decimal; and "M" refers to the actual
number of days in the Interest Period for which interest is being calculated.
<PAGE>
7
DETERMINATION OF FEDERAL FUNDS RATE. If the Base Rate set forth on
the face hereof is the Federal Funds Rate, this Security will bear interest
for each Interest Reset Period at the interest rate calculated with reference
to the Federal Funds Rate and the Spread, Spread Multiplier or other formula,
if any, set forth on the face hereof. Unless otherwise set forth on the face
hereof, the "FEDERAL FUNDS RATE" means, with respect to any Interest
Determination Date pertaining thereto, the rate on such date for federal
funds as published in H.15(519) under the caption "FEDERAL FUNDS (EFFECTIVE)"
or, if not yet published by 3:00 P.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the Federal Funds Rate
will be the rate on such Interest Determination Date as published in H.15
Daily Update under the caption "FEDERAL FUNDS/EFFECTIVE RATE". If by 3:00
P.M., New York City time, on the Calculation Date pertaining to such Interest
Determination Date such rate is not yet published in either H.15(519), or
H.15 Daily Update, the Federal Funds Rate for such Interest Determination
Date will be calculated by the Calculation Agent and will be the average of
the rates for the last transaction in overnight federal funds arranged by
three leading dealers of federal funds transactions in The City of New York,
which dealers have been selected by the Calculation Agent (after consultation
with the Company), as of 9:00 A.M., New York City time, on such Interest
Determination Date; PROVIDED, HOWEVER, that, if the dealers selected as
aforesaid by the Calculation Agent are not quoting as mentioned in this
sentence, the interest rate for the period commencing on the Interest Reset
Date following such Interest Determination Date will remain the interest rate
in effect on such Interest Determination Date.
DETERMINATION OF LIBOR. If the Base Rate set forth on the face hereof
is LIBOR, this Security will bear interest for each Interest Reset Period at the
interest rate calculated with reference to LIBOR and the Spread, Spread
Multiplier or other formula, if any, set forth on the face hereof. Unless
otherwise set forth on the face hereof, "LIBOR" means the rate determined by the
Calculation Agent in accordance with the following provisions:
(i) If "LIBOR Reuters" is specified on the face hereof, LIBOR will
be the average of the offered rates for deposits in the LIBOR Currency
having the Index Maturity set forth on the face hereof on the applicable
Interest Reset Date, as such rates appear on the Designated LIBOR Page as
of 11:00 A.M., London time, on that Interest Determination Date, if at
least two such offered rates appear on the Designated LIBOR Page.
(ii) If "LIBOR Telerate" is specified on the face hereof, LIBOR
will be the rate for deposits in the LIBOR Currency having the Index
Maturity set forth on the face hereof on the applicable Interest Reset
Date, as such rates appears on the Designated LIBOR Page as of 11:00 A.M.,
London time, on that Interest Determination Date. If such rate does not
appear, LIBOR for such Interest Determination Date will be determined as
described in (iii) below.
<PAGE>
8
(iii) If the Designated LIBOR Page by its terms provides only for a
single rate, that single rate will be used regardless of the foregoing
provisions require more than one rate. With respect to an Interest
Determination Date, if LIBOR-Reuters is the applicable method for
determining LIBOR and fewer than two offered rates appear on the Designated
LIBOR Page as specified in (i) above or if LIBOR-Telerate is the applicable
method for determining LIBOR and no rate appears on the Designated LIBOR
Page as specified in (ii) above, then LIBOR will be determined on the basis
of the offered rates at which deposits in the LIBOR Currency having the
Index Maturity set forth on the face hereof on the Interest Determination
Date and in a principal amount that is representative of a single
transaction in that market at that time are offered by four major banks in
the London interbank market at approximately 11:00 AM., London time, on the
Interest Determination Date to prime banks in the London interbank market.
The Calculation Agent will select the four banks and request the principal
London office of each of those banks to provide a quotation of its rate for
deposits in the LIBOR Currency. If at least two quotations are provided,
LIBOR for that Interest Determination Date will be the average of those
quotations. If fewer than two quotations are provided as mentioned above,
LIBOR will be the average of the rates quoted by three major banks in the
Principal Financial Center selected by the Calculation Agent at
approximately 11:00 A.M. in the Principal Financial Center, on the Interest
Determination Date for loans to leading Europeans banks in the LIBOR
Currency having the Index Maturity set forth on the face hereof and in a
principal amount that is representative for a single transaction in the
LIBOR Currency in that market at that time. The Calculation Agent will
select the three banks referred to above. If fewer than three banks
selected by the Calculation Agent are quoting as mentioned above, LIBOR
will remain LIBOR then in effect on the Interest Determination Date.
"LIBOR CURRENCY" means the Designated LIBOR Currency specified on the
face hereof as to which LIBOR shall be calculated or, if no such currency
is specified on the face hereof, United States dollars.
"DESIGNATED LIBOR PAGE" means if "LIBOR Reuters" is specified on the
face hereof, the display on the Reuter Monitor Money Rates Service (or any
successor service) on the page specified on the face hereof (or any other
page as may replace such page on such service) for the purpose of
displaying the London interbank rates of major banks for the LIBOR
Currency; or if "LIBOR Telerate" is specified in the applicable pricing
supplement or neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on
the face hereof as the method of calculating LIBOR, the display on Bridge
Telerate, Inc. (or any successor service, "TELERATE") on the page specified
on the face hereof (or
<PAGE>
9
any other page as may replace such page on such service) for the purpose of
displaying the London interbank rates of major banks for the LIBOR
Currency.
DETERMINATION OF PRIME RATE. If the Base Rate set forth on the face
hereof is the Prime Rate, this Security will bear interest for each Interest
Reset Period at the interest rate calculated with reference to the Prime Rate
and the Spread, Spread Multiplier or other formula, if any, set forth on the
face hereof. Unless otherwise set forth on the face hereof, the "PRIME RATE"
means, with respect to any Interest Determination Date pertaining thereto, the
rate on such date as published in H.15(519) under the caption "BANK PRIME LOAN"
or, if not yet published by 3:00 A.M., New York City time, on the Calculation
Date pertaining to such Interest Determination Date, the rate on such Interest
Determination Date as published in H.15 Daily Update, or such other recognized
electronic source used for the purpose of displaying such rate, under the
caption "Bank Prime Loan."
If the rate is not published in H.15 (519), H.15 Daily Update or
another recognized electronic source by 3:00 P.M., New York City time, on the
Calculation Date, then the Calculation Agent will determine the Prime Rate to be
the average of the of the rates of interest publicly announced by each bank that
appears on the Reuters screen designated as "US Prime 1" as that bank's prime
rate or base lending rate as in effect for that Interest Determination Date. If
at least one rate but fewer than four rates appear on the Reuters screen US
Prime 1 on the Interest Determination Date, then the Prime Rate will be the
average of the prime rates or base lending rates quoted (on the basis of the
actual number of days in the year divided by a 360-day year) as of the close of
business on the Interest Determination Date by three major money center banks in
the City of New York selected by the Calculation Agent. If the banks selected
by the Calculation Agent are not quoting as mentioned above, the Prime Rate will
remain the Prime Rate then in effect on the Interest Determination Date.
DETERMINATION OF TREASURY RATE. If the Base Rate set forth on the
face hereof is the Treasury Rate, this Security will bear interest for each
Interest Reset Period at the interest rate calculated with reference to the
Treasury Rate and the Spread, Spread Multiplier or other formula, if any, set
forth on the face hereof. Unless otherwise set forth on the face hereof, the
"TREASURY RATE" means, with respect to any Interest Determination Date
pertaining thereto the rate for the auction of direct obligations of the
United States ("TREASURY BILLS") held on such Interest Determination Date
having the Index Maturity set forth on the cover page hereof under the
caption "INVESTMENT RATE" on the display on Telerate on page 56 (or any other
page as may replace such page on such service) ("TELERATE PAGE 56") or page
57 (or any other page as may replace such page on such service) ("TELERATE
PAGE 57") by 3:00 P.M., New York City time, on the Calculation date for that
Interest Determination Date.
The following procedures will be followed if the Treasury Rate cannot
be determined as described above:
<PAGE>
10
If the rate is not published by 3:00 P.M., New York City time, on
the Calculation Date, the Treasury Rate will be the Bond Equivalent Yield of
the auction rate of such Treasury bills as published in H.15 Daily Update or
such recognized electronic source used for the purpose of displaying such
rate under the caption "U.S. Government Securities Treasury Bills/Auction
High."
If the rate is not published by 3:00 P.M., New York City time, on the
Calculation Date and cannot be determined as described in the immediately
preceding paragraph, the Treasury Rate will be the Bond Equivalent Yield of
the auction rate of such Treasury bills as otherwise announced by the United
States Department of Treasury.
If the results of the most recent auction of Treasury bills having
the Index Maturity set forth on the face hereof are not published or
announced as described above by 3:00 P.M., New York City time, on the
Calculation Date, or if no auction is held on the Interest Determination
Date, then the Treasury Rate will be the Bond Yield Equivalent on such
Interest Determination Date of Treasury bills having the Index Maturity set
forth on the face hereof as published in H.15(519) under the caption "U.S.
Government securities/Treasury bills/Secondary market" or, if not yet
published by 3:00 p.m., New York City time, on the related Calculation Date,
the rate on such Interest Determination Date of such Treasury Bills as
published in H.15 Daily Update, or such other recognized electronic source
used for the purpose of displaying such rate, under the caption "U.S.
Government securities/Treasury bills/Secondary market."
If such rate is not published in H.15 (519), H.15 Daily Update or
another recognized electronic source, then the Calculation Agent will
determine the Treasury Rate to be the Bond Yield Equivalent of the average of
the secondary market bid rates, as of approximately 3:30 P.M., New York City
time, on the Interest Determination Date of three leading primary United
States government securities dealers (which may include Agents or their
affiliates) for the issue of Treasury bills with a remaining maturity closest
to the Index Maturity set forth on the face hereof. The Calculation Agent
will select the three dealers referred to above.
If fewer than three dealers selected by the Calculation Agent are
quoting as mentioned above, the Treasury Rate will remain the Treasury Rate then
in effect on that Interest Determination Date.
"Bond Equivalent Yield" means a yield (expressed as a percentage)
calculated in accordance with the following formula:
D x N
Bond Equivalent Yield = --------------- x 100
360 - (D x M)
where "D" refers to the applicable per annum rate for Treasury bills quoted
on a bank discount basis, "N" refers to 365 or 366, as the case may be, and
"M" refers to the actual number of days in the applicable Interest Reset
Period.
DETERMINATION OF CMT RATE. If the Base Rate set forth on the face
hereof is the CMT Rate, this Security will bear interest for each Interest Reset
Period at the interest rate calculated with reference to the CMT Rate and the
Spread, Spread Multiplier, or other formula, if any, set forth on the face
hereof. Unless otherwise set forth on the face hereof, the "CMT RATE" means,
with respect to any Interest Determination Date pertaining thereto, the rate
displayed on the Designated CMT Telerate Page (as defined below) under the
caption "... Treasury Constant Maturities ... Federal Reserve Board Release H.15
... Mondays Approximately 3:45 P.M.", under the column for the Designated CMT
Maturity Index (as defined below) for (i) if the Designated CMT Telerate Page is
7051 or any successor page, the
<PAGE>
11
rate on such Interest Determination Date and (ii) if the Designated CMT Telerate
Page is 7052 or any successor page, the rate for the week or the monthly
average, as applicable, ended immediately preceding the week in which the
related Interest Determination Date occurs. If such rate is no longer displayed
on the relevant page, or if not displayed by 3:00 P.M., New York City time, on
the Calculation Date pertaining to such Interest Determination Date, then the
interest rate for such Interest Determination Date shall be the rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published, or if not published by 3:00 P.M., New York City time, on the
Calculation Date pertaining to such Interest Determination Date, then the
interest rate for such Interest Determination Date shall be the rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) as may then be published by either the Board of
Governors of the Federal Reserve System or the United States Department of the
Treasury that the Calculation Agent determines (with the concurrence of the
Company) to be comparable to the rate formerly displayed on the Designated CMT
Telerate Page and published in H.15(519). If such information is not provided
by 3:00 P.M., New York City time, on the Calculation Date pertaining to such
Interest Determination Date, then the interest rate for such Interest
Determination Date shall be calculated by the Calculation Agent and shall be a
yield to maturity, based on the arithmetic average of the secondary market
closing offer side prices as of approximately 3:30 P.M., New York City time, on
such Interest Determination Date, reported by three leading primary United
States government securities dealers (each, a "REFERENCE DEALER") in The City of
New York, for the most recently issued direct noncallable fixed rate obligations
of the United States ("U.S. TREASURY NOTES") with an original maturity of
approximately the Designated CMT Maturity Index and a remaining term to maturity
of not less than such Designated CMT Maturity Index minus one year. The three
Reference Dealers shall be determined by (i) the selection of five Reference
Dealers by the Calculation Agent (after consultation with the Company) and (ii)
the elimination of the Reference Dealers providing the highest (or, in the event
of equality, one of the highest) and the lowest (or, in the event of equality,
one of the lowest) quotations for such Interest Determination Date. If the
Calculation Agent cannot obtain three such U.S. Treasury Note quotations, the
interest rate for such Interest Determination Date shall be calculated by the
Calculation Agent and shall be a yield to maturity based on the arithmetic
average of the secondary market offer side prices as of approximately 3:30 P.M.,
New York City time, on the Interest Determination Date reported, according to
their written records, by three Reference Dealers in The City of New York,
selected in the manner described above, for U.S. Treasury Notes with an original
maturity of the number of years that is the next highest to the Designated CMT
Maturity Index and a remaining term to maturity closest to the Designated CMT
Maturity Index and in an amount of at least $100 million. If only three or four
of such Reference Dealers are quoting as described above, then the interest rate
shall be based on the arithmetic average of the offer side prices so obtained
from all such Reference Dealers, without eliminating the Reference Dealers
providing the highest and the lowest of such quotes. If fewer than three such
Reference Dealers are quoting as described above, then the interest rate shall
be the CMT Rate in effect on such Interest Determination Date. If two such U.S.
Treasury Notes have remaining terms
<PAGE>
12
to maturity equally close to the Designated CMT Maturity Index, the quotes for
the U.S. Treasury Note with the shorter remaining term to maturity shall be
used.
"DESIGNATED CMT TELERATE PAGE" means the display on the Dow Jones
Telerate Service on the page set forth on the face hereof (or any other
page as may replace such page on that service for the purpose of displaying
treasury constant maturities as reported in H.15(519)). If no such page is
so specified, the Designated CMT Telerate Page shall be 7052.
"DESIGNATED CMT MATURITY INDEX" means the original period to maturity
of the U.S. Treasury securities (either 1, 2, 3, 5, 7, 10, 20 or 30
years) specified on the face hereof with respect to which the CMT Rate will
be calculated. If no such maturity is so specified, the Designated CMT
Maturity Index shall be two years.
DETERMINATION OF THE ELEVENTH DISTRICT COST OF FUNDS RATE. If the
Base Rate set forth on the face hereof is the Eleventh District Cost of Funds
Rate this security will bear interest for each Interest Reset Period at the
interest rate calculated with reference to the Eleventh District Cost of Funds
Rate and Spread, Spread Multiple or other formula, if any, set forth on the face
hereof. Unless otherwise set forth on the face hereof, the "ELEVENTH DISTRICT
COST OF FUNDS RATE" means with respect to any Interest Determination Date the
rate equal to the monthly weighted average cost of funds for the month preceding
the Interest Determination Date as displayed on the Telerate Page 7058 by 11:00
A.M., San Francisco time, on the Calculation Date for that Interest
Determination Date under the caption "11th District."
The following procedures will be used if the Eleventh District Cost of
Funds Rate cannot be determined as described above: (i) if the rate is not
displayed on the relevant page by 11:00 A.M., San Francisco time, on the
Calculation Date, then the Eleventh District Cost of Funds Rate will be the
monthly weighted average cost of funds paid by member institutions of the
Eleventh Federal Home Loan Bank District, as announced by the Federal Home Loan
Bank of San Francisco, for the month preceding the date of announcement and
(ii) if no announcement was made relating to the month preceding the Interest
Determination Date, the Eleventh District Cost of Funds Rate will remain the
Eleventh District Cost of Funds Rate then in effect on the Interest
Determination Date.
References herein to "U.S. DOLLARS" or "U.S. $" or "$" are to the
currency of the United States of America.
Section 4. REDEMPTION. If so specified on the face hereof, the
Company may at its option redeem this Security in whole or from time to time in
part in increments of $1,000 (provided that any remaining principal amount of
this Security shall not be less than the Minimum Denomination specified on the
face hereof) on or after the date designated as the Initial Redemption Date on
the face hereof at 100% of the unpaid principal amount hereof or
<PAGE>
13
the portion thereof redeemed (or, if this Security is a Discount Security,
such lesser amount as is provided for below) multiplied by the Initial
Redemption Percentage specified on the face hereof, together with accrued
interest to the Redemption Date. Such Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by an amount equal to
the Annual Redemption Percentage Reduction, if any, specified on the face hereof
until the redemption price is 100% of the unpaid principal amount hereof. The
Company may exercise such option by causing the Trustee to mail a notice of such
redemption at least 30 but not more than 60 days prior to the Redemption Date.
In the event of redemption of this Security in part only, a new Security or
Securities for the unredeemed portion hereof shall be issued in the name of the
Holder hereof upon the cancellation hereof. If less than all of the Securities
with like tenor and terms to this Security are to be redeemed, the Securities to
be redeemed shall be selected by the Trustee by such method as the Trustee shall
deem fair and appropriate. However, if less than all the Securities of the
series, of which this Security is a part, with differing issue dates, interest
rates or formula 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.
Section 5. REPAYMENT. If so specified on the face hereof, this
Security shall be repayable prior to the Stated Maturity Date at the option of
the Holder on each applicable Optional Repayment Date shown on the face hereof
at a repayment price equal to 100% of the principal amount to be repaid,
together with accrued interest to the Repayment Date. In order for this
Security to be repaid, the Trustee must receive at least 30 but not more than 60
days prior to an Optional Repayment Date, this Security with the form attached
hereto entitled "OPTION TO ELECT REPAYMENT" duly completed. Any tender of this
Security for repayment shall be irrevocable. The repayment option may be
exercised by the Holder of this Security in whole or in part in increments of
$1,000 (provided that any remaining principal amount of this Security shall not
be less than the Minimum Denomination specified on the face hereof). Upon any
partial repayment, this Security shall be cancelled and a new Security or
Securities for the remaining principal amount hereof shall be issued in the name
of the Holder of this Security.
Section 6. SINKING FUND. Unless otherwise specified on the face
hereof, this Security will not be subject to any sinking fund.
Section 7. DISCOUNT SECURITIES. If this Security (such Security being
referred to as a "DISCOUNT SECURITY") (a) has been issued at an Issue Price
lower, by more than a DE MINIMIS amount (as determined under United States
federal income tax rules applicable to original issue discount instruments),
than the principal amount hereof and (b) would be considered an original issue
discount security for United States federal income tax purposes, then the amount
payable on this Security in the event of redemption by the Company, repayment at
the option of the Holder or acceleration of the maturity hereof, in lieu of the
principal amount due at the Stated Maturity Date hereof, shall be the Amortized
Face Amount (as defined below) of this Security as of the date of such
redemption, repayment or
<PAGE>
14
acceleration. The "AMORTIZED FACE AMOUNT" of this Security shall be the amount
equal to the sum of (a) the Issue Price (as set forth on the face hereof) plus
(b) the aggregate of the portions of the original issue discount (the excess of
the amounts considered as part of the "stated redemption price at maturity" of
this Security within the meaning of Section 1273(a)(2) of the Internal Revenue
Code of 1986, as amended (the "CODE"), whether denominated as principal or
interest, over the Issue Price of this Security) which shall theretofore have
accrued pursuant to Section 1272 of the Code (without regard to
Section 1272(a)(7) of the Code) from the date of issue of this Security to the
date of determination, minus (c) any amount considered as part of the "stated
redemption price at maturity" of this Security which has been paid on this
Security from the date of issue to the date of determination.
Section 8. MODIFICATION AND WAIVERS; SUBORDINATION; OBLIGATION OF THE
COMPANY ABSOLUTE. The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities of
each series. Such amendment may be effected 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, on behalf of the
Holders of all Outstanding Securities, 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 all Outstanding
Securities of any series to waive on behalf of all of the Holders of Securities
of such series certain past defaults under the Indenture and their consequences.
Any such consent or waiver shall be conclusive and binding upon the Holder of
this Security and upon all future Holders of this Security and of any Security
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
Security.
The indebtedness evidenced by the Securities is, to the extent and in
the manner set forth in the Indenture, expressly subordinated and subject in
right of payment to the prior payment in full of all Senior Indebtedness, and
this Security is issued subject to such provisions of the Indenture. Each
Holder of this Security, 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.
No reference herein to the Indenture and no provision of this Security
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 on this Security at the times, place and rate, and in the Currency
herein prescribed.
<PAGE>
15
Section 9. DEFEASANCE AND COVENANT DEFEASANCE. The Indenture contains
provisions for defeasance at any time of (a) the entire indebtedness of the
Company on this Security and (b) certain restrictive covenants and the related
defaults and Events of Default, upon compliance by the Company with certain
conditions set forth therein, which provisions apply to this Security, unless
otherwise specified on the face hereof.
Section 10. MINIMUM DENOMINATION. Unless otherwise provided on the
face hereof, this Security is issuable only in registered form without coupons
issued in denominations of $1,000 or any amount in excess thereof which is an
integral multiple of $1,000. If this Security is denominated in a Specified
Currency other than U.S. dollars or is a Discount Security, this Security shall
be issuable in the denominations set forth on the face hereof.
Section 11. REGISTRATION OF TRANSFER. As provided in the Indenture
and subject to certain limitations herein and therein set forth, the transfer of
this Security is registrable in the Security Register upon surrender of this
Security for registration of transfer at a Place of Payment for the series of
Securities of which this Security is a part, 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 his attorney duly
authorized in writing, and thereupon one or more new Securities of this series,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees.
If the registered owner of this Security is the Depository (such a
Security being referred to herein as a "GLOBAL SECURITY") and (i) 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 following notice to
the Company or (ii) an Event of Default occurs, the Company will issue
Securities in certificated form in exchange for this Global Security. In
addition, the Company may at any time determine not to have Securities
represented by this Global Security and, in such event, will issue Securities in
certificated form in exchange in whole for this Global Security representing
such Security. In any such instance, an owner of a beneficial interest in a
Global Security will be entitled to physical delivery of Securities in
certificated form equal in principal amount to such beneficial interest and to
have such Securities registered in its name. Securities so issued in
certificated form will be issued in denominations of $1,000 (or such other
Minimum Denomination specified on the face hereof) or any amount in excess
thereof which is an integral multiple of $1,000 (or such Minimum Denomination)
and will be issued in registered form only, without coupons.
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.
<PAGE>
16
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Holder as the owner hereof for all purposes, whether or not this
Security be overdue, and neither the Company, the Trustee nor any such agent
shall be affected by notice to the contrary.
Section 12. EVENTS OF DEFAULT. If an Event of Default with respect to
the Securities of the series of which this Security forms a part shall have
occurred and be continuing, the principal of this Security may be declared due
and payable in the manner and with the effect provided in the Indenture.
Section 13. DEFINED TERMS. All terms used in this Security which are
defined in the Indenture and are not otherwise defined herein shall have the
meanings assigned to them in the Indenture.
Section 14. GOVERNING LAW. Unless otherwise specified on the face
hereof, this Security 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.
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably requests and instructs the Company
to repay this Security (or the portion thereof specified below), pursuant to its
terms, on the "REPAYMENT DATE" first occurring after the date of receipt of the
within Security as specified below, at a Repayment Price equal to 100% of the
principal amount thereof, together with interest thereon accrued to the
Repayment Date, to the undersigned at:
- --------------------------------------------------------------------------------
(Please Print or Type Name and Address of the Undersigned.)
FOR THIS OPTION TO ELECT REPAYMENT TO BE EFFECTIVE, THIS SECURITY WITH
THE OPTION TO ELECT REPAYMENT DULY COMPLETED MUST BE RECEIVED AT LEAST 30 BUT
NOT MORE THAN 45 DAYS PRIOR TO THE REPAYMENT DATE (OR, IF SUCH REPAYMENT DATE IS
NOT A BUSINESS DAY, THE NEXT SUCCEEDING BUSINESS DAY) BY THE COMPANY AT ITS
OFFICE OR AGENCY IN THE CITY OF NEW YORK, WHICH WILL BE LOCATED INITIALLY AT THE
OFFICE OF THE TRUSTEE AT C/O THE BANK OF NEW YORK, 101 BARCLAY STREET, NEW YORK,
NEW YORK 10286; ATTENTION: CORPORATE TRUST ADMINISTRATION.
If less than the entire principal amount of this Security is to be
repaid, specify the portion thereof (which shall be $1,000 or an integral
multiple thereof) which is to be repaid: $ ___________.
If less than the entire principal amount of this Security is to be
repaid, specify the denomination(s) of the Security(ies) to be issued for the
unpaid amount ($1,000 or any integral multiple of $1,000; PROVIDED that any
remaining principal amount of this Security shall not be less than the Minimum
Denomination): $ ________.
Dated:
---------------------
--------------------------------------
Note: The signature to this Option to Elect
Repayment must correspond with the name as written
upon the face of this Security in every particular
without alterations or enlargement or any change
whatsoever.
<PAGE>
--------------------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship and not as
tenants in common
UNIF GIFT MIN ACT - ...............Custodian.............
(Cust.) (Minor)
Under Uniform Gifts to Minors Act
.....................................
(State)
Additional abbreviations may also be used though not in the above list.
--------------------------
FOR VALUE RECEIVED, the undersigned
hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
- ---------------------------------------
| |
- --------------------------------------------------------------------------------
Please print or type name and address, including zip code of assignee
- --------------------------------------------------------------------------------
the within Security of DEERE & COMPANY and all rights thereunder and does hereby
irrevocably constitute and appoint
- --------------------------------------------------------------------------------
Attorney to transfer the said Security on the books of the within-named Company,
with full power of substitution in the premises.
Dated
------------------------------------
SIGNATURE GUARANTEED:
--------------------------------
- -------------------------------
---------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Security in every
particular, without alteration or enlargement
or any change whatsoever.
<PAGE>
EXHIBIT 5
March 3, 1999
To the Board of Directors
of Deere & Company
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. 33-54165 (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 debt securities (the "Debt Securities") and warrants to purchase
Debt Securities (the "Debt Warrants") with an aggregate issue price of up to
$1,450,000,000. The Debt Securities and the Debt Warrants are collectively
referred to as the "Securities".
The Debt Securities will be issued in one or more series and
may be either senior debt securities ("Senior Securities") issued pursuant to
an Indenture dated as of June 15, 1994 (the "Senior Indenture") between the
Company and The Chase Manhattan Bank (successor by merger to The Chase
Manhattan Bank (National Association)), trustee (the "Senior Trustee"), or
subordinated debt securities ("Subordinated Securities") issued pursuant to
an Indenture (the "Subordinated Indenture") between the Company and The Bank
of New York, trustee (the "Subordinated Trustee"). The Debt Warrants will be
issued under one or more debt warrant agreements (each, a "Warrant
Agreement") to be entered into between the Company and a financial
institution identified therein as warrant agent (each, a "Warrant Agent").
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,
<PAGE>
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, executed
and delivered by the Company pursuant to the authority granted in the
Resolutions and, assuming the due authorization, execution and delivery
thereof by the Senior Trustee, constitutes 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 exercise of any Debt Warrants) 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 by
the Company and, when executed and delivered by the Company pursuant to the
authority granted in the Resolutions and assuming the 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.
4. The Subordinated Securities (including Subordinated
Securities issuable upon exercise of any Debt Warrants) 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 the due authorization, execution and
delivery thereof by the applicable Warrant Agent,
<PAGE>
will constitute valid and legally binding instruments of the Company
enforceable against the Company in accordance with their respective terms.
6. The Debt Warrants have been duly authorized and, when the
final terms thereof have been duly established and approved and when
certificates representing such Debt 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 Debt Warrants will constitute
valid and legally binding obligations of the Company entitled to the benefits
of the applicable Warrant Agreement.
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,
/s/ Shearman & Sterling
JJ/LLJ/GFB
<PAGE>
March 3, 1999
To the Board of Directors of
Deere & Company
Ladies and Gentlemen:
We are acting as special tax counsel for Deere & Company (the
"Company") in connection with the preparation and filing with the Securities
and Exchange Commission under the Securities Act of 1933, as amended, of a
Registration Statement on Form S-3 containing a Prospectus Supplement, dated
[_________, 1999], to a Prospectus dated [_________, 1999]. The Prospectus
Supplement relates to the offering by the Company of its Medium Term Notes,
Series C (the "Notes") in an aggregate principal amount of $1,450,000,000.
We are of the opinion that, subject to the limitations set forth
therein, the discussion under the caption "United States Taxation" accurately
describes the material United States federal income tax consequences of the
purchase, ownership and disposition of the Notes. The foregoing opinion is
based upon the Internal Revenue Code of 1986, as amended, Treasury
Regulations (including proposed Regulations and temporary Regulations)
promulgated thereunder, rulings, official pronouncements and judicial
decisions, all as in effect on the date hereof and all of which are subject
to change, possibly with retroactive effect, or to different interpretations.
Very truly yours,
/s/ Shearman & Sterling
LMB/AFS
<PAGE>
[DELOITTE & TOUCHE LETTERHEAD]
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 November 24, 1998,
appearing in the Annual Report on Form 10-K of Deere & Company for the year
ended October 31, 1998 and to the reference to us under the heading "Experts"
in the Prospectus, which is part of this Registration Statement.
DELOITTE & TOUCHE LLP
Chicago, Illinois
March 3, 1999
<PAGE>
- -------------------------------------------------------------------------------
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
(Exact name of trustee as specified in its charter)
NEW YORK 13-4994650
(State of incorporation (I.R.S. employer
if not a national bank) identification No.)
270 PARK AVENUE
NEW YORK, NEW YORK 10017
(Address of principal executive offices) (Zip Code)
William H. McDavid
General Counsel
270 Park Avenue
New York, New York 10017
Tel: (212) 270-2611
(Name, address and telephone number of agent for service)
---------------------------------------------
DEERE & COMPANY
(Exact name of obligor as specified in its charter)
DELAWARE 36-2386361
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification No.)
1 EAST FIRST STREET, SUITE 600
RENO, NEVADA 89501
(Address of principal executive offices) (Zip Code)
---------------------------------------------
SUBORDINATED DEBT SECURITIES
(Title of the indenture securities)
---------------------------------------------
<PAGE>
-2-
GENERAL
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.
New York State Banking Department, State House, Albany, New York
12110.
Board of Governors of the Federal Reserve System, Washington, D.C.,
20551
Federal Reserve Bank of New York, District No. 2, 33 Liberty Street,
New York, N.Y.
Federal Deposit Insurance Corporation, Washington, D.C., 20429.
(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.
None.
<PAGE>
-3-
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,
including the Organization Certificate and the Certificates of Amendment dated
February 17, 1969, August 31, 1977, December 31, 1980, September 9, 1982,
February 28, 1985, December 2, 1991 and July 10, 1996 (see Exhibit 1 to Form T-1
filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
2. A copy of the Certificate of Authority of the Trustee to Commence
Business (see Exhibit 2 to Form T-1 filed in connection with Registration
Statement No. 33-50010, which is incorporated by reference. On July 14, 1996,
in connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
3. None, authorization to exercise corporate trust powers being contained
in the documents identified above as Exhibits 1 and 2.
4. A copy of the existing By-Laws of the Trustee (see Exhibit 4 to Form
T-1 filed in connection with Registration Statement No. 333-06249, which is
incorporated by reference).
5. Not applicable.
6. The consent of the Trustee required by Section 321(b) of the Act
(see Exhibit 6 to Form T-1 filed in connection with Registration Statement
No. 33-50010, which is incorporated by reference. On July 14, 1996, in
connection with the merger of Chemical Bank and The Chase Manhattan Bank
(National Association), Chemical Bank, the surviving corporation, was renamed
The Chase Manhattan Bank).
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.
8. Not applicable.
9. Not applicable.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 the
Trustee, The Chase Manhattan Bank, 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 21st day of December, 1998.
THE CHASE MANHATTAN BANK
By /s/ William G. Keenan
--------------------------------
William G. Keenan
Trust Officer
<PAGE>
Exhibit 7 to Form T-1
Bank Call Notice
RESERVE DISTRICT NO. 2
CONSOLIDATED REPORT OF CONDITION OF
The Chase Manhattan Bank
of 270 Park Avenue, New York, New York 10017
and Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System,
at the close of business September 30, 1998, 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 MILLIONS
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and
currency and coin ......................................... $ 11,951
Interest-bearing balances ................................. 4,551
Securities: ................................................
Held to maturity securities.................................. 1,740
Available for sale securities................................ 48,537
Federal funds sold and securities purchased under
agreements to resell ...................................... 29,730
Loans and lease financing receivables:
Loans and leases, net of unearned income $127,379
Less: Allowance for loan and lease losses 2,719
Less: Allocated transfer risk reserve ......... 0
---------
Loans and leases, net of unearned income,
allowance, and reserve ................................... 124,660
Trading Assets ............................................. 51,549
Premises and fixed assets (including capitalized
leases)................................................... 3,009
Other real estate owned .................................... 272
Investments in unconsolidated subsidiaries and
associated companies...................................... 300
Customers' liability to this bank on acceptances
outstanding .............................................. 1,329
Intangible assets .......................................... 1,429
Other assets ............................................... 13,563
----------
TOTAL ASSETS ............................................... $292,620
----------
----------
</TABLE>
- 4 -
<PAGE>
LIABILITIES
<TABLE>
<CAPTION>
<S> <C>
Deposits
In domestic offices .................................... $98,760
Noninterest-bearing ................... $39,071
Interest-bearing ...................... 59,689
-------
In foreign offices, Edge and Agreement,
subsidiaries and IBF's.................................. 75,403
Noninterest-bearing ................ $ 3,877
Interest-bearing ...................... 71,526
Federal funds purchased and securities sold under agree-
ments to repurchase ....................................... 34,471
Demand notes issued to the U.S. Treasury .................. 1,000
Trading liabilities ....................................... 41,589
Other borrowed money (includes mortgage indebtedness
and obligations under capitalized leases):
With a remaining maturity of one year or less ........... 3,781
With a remaining maturity of more than one year
through three years............................... 213
With a remaining maturity of more than three years....... 104
Bank's liability on acceptances executed and
outstanding............................................ 1,329
Subordinated notes and debentures ........................ 5,408
Other liabilities ........................................ 12,041
TOTAL LIABILITIES ........................................ 274,099
---------
EQUITY CAPITAL
Perpetual preferred stock and related surplus.............. 0
Common stock .............................................. 1,211
Surplus (exclude all surplus related to preferred stock)... 10,441
Undivided profits and capital reserves .................... 6,287
Net unrealized holding gains (losses)
on available-for-sale securities .......................... 566
Cumulative foreign currency translation adjustments ......... 16
TOTAL EQUITY CAPITAL ........................................ 18,521
---------
TOTAL LIABILITIES AND EQUITY CAPITAL ........................ $292,620
---------
---------
</TABLE>
I, Joseph L. Sclafani, E.V.P. & Controller of the above-named
bank, do hereby declare that this Report of Condition has
been prepared in conformance with the instructions issued
by the appropriate Federal regulatory authority and is true
to the best of my knowledge and belief.
JOSEPH L. SCLAFANI
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 in-
structions issued by the appropriate Federal regulatory
authority and is true and correct.
WALTER V. SHIPLEY )
THOMAS G. LABRECQUE )DIRECTORS
WILLIAM B. HARRISON, JR. )
-5-
<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.)
One 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.)
One John Deere Place 61265-8098
Moline, Illinois (Zip code)
(Address of principal executive offices)
===========================
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, N.Y.
of the State of New York 10006, and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y.
New York 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
(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.
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
17 C.F.R. 229.10(d).
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.)
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.
-2-
<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 2nd day of March, 1999.
THE BANK OF NEW YORK
By: /s/ MARY LAGUMINA
--------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
-3-
<PAGE>
Exhibit 7 to Form T-1
Consolidatated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1998, 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 depository
institutions:
Noninterest-bearing balances and currency and coin . . . . . . $3,951,273
Interest-bearing balances . . . . . . . . . . . . . . . . . . 4,134,162
Securities:
Held-to-maturity securities . . . . . . . . . . . . . . . . . 932,468
Available-for-sale securities . . . . . . . . . . . . . . . . 4,279,246
Federal funds sold and Securities purchased
under agreements to resell . . . . . . . . . . . . . . . . . . 3,161,626
Loans and lease financing receivables:
Loans and leases, net of unearned income . . . . 37,861,802
LESS: Allowance for loan and lease losses. . . . 619,791
LESS: Allocated transfer risk reserve. . . . . . 3,572
Loans and leases, net of unearned income,
allowance, and reserve . . . . . . . . . . . . . . . . . . . 37,238,439
Trading Assets.. . . . . . . . . . . . . . . . . . . . . . . . . 1,551,556
Premises and fixed assets (including capitalized leases) . . . . 684,181
Other real estate owned. . . . . . . . . . . . . . . . . . . . . 10,404
Investments in unconsolidated subsidiaries and associated
companies. . . . . . . . . . . . . . . . . . . . . . . . . . . 196,032
Customers' liability to this bank on acceptances outstanding. . 895,160
Intangible assets. . . . . . . . . . . . . . . . . . . . . . . . 1,127,375
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . 1,915,742
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Total assets . . . . . . . . . . . . . . . . . . . . . . . . . . $60,077,664
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<PAGE>
Dollar Amounts
in Thousands
---------------
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . $27,020,578
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . 11,271,304
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . 15,749,274
In foreign offices, Edge and Agreement subsidiaries,
and IBFs . . . . . . . . . . . . . . . . . . . . . . . . . . 17,197,743
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . 103,007
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . 17,094,736
Federal funds purchased and Securities sold under
agreements to repurchase . . . . . . . . . . . . . . . . . . . 1,761,170
Demand notes issued to the U.S.Treasury. . . . . . . . . . . . . 125,423
Trading liabilities. . . . . . . . . . . . . . . . . . . . . . . 1,625,632
Other borrowed money:
With remaining maturity of one year or less . . . . . . . . . 1,903,700
With remaining maturity of more than one year
through three years. . . . . . . . . . . . . . . . . . . . . 0
With remaining maturity of more than three years . . . . . . . 31,639
Bank's liability on acceptances executed and outstanding . . . . 900,390
Subordinated notes and debentures. . . . . . . . . . . . . . . . 1,308,000
Other liabilities. . . . . . . . . . . . . . . . . . . . . . . . 2,708,852
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Total liabilities. . . . . . . . . . . . . . . . . . . . . . . . 54,583,127
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-----------
EQUITY CAPITAL
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . 1,135,284
Surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 764,443
Undivided profits and capital reserves . . . . . . . . . . . . . 3,542,168
Net unrealized holding gains (losses) on
on available-for-sale securities . . . . . . . . . . . . . . . 82,367
Cumulative foreign currency translation adjustments . . . . . . (29,725)
-----------
Total equity capital . . . . . . . . . . . . . . . . . . . . . . 5,494,537
-----------
Total liabilities and equity capital . . . . . . . . . . . . . . $60,077,664
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</TABLE>
<PAGE>
I, Thomas J. Mastro, 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.
Thomas J. Mastro
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.
----
Thomas A. Reyni |
Gerald L. Hassell | Directors
Alan R. Griffith |
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