<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 7, 1999
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
--------------------------
BOEING CAPITAL CORPORATION
(Exact name of Registrant as specified in its Charter)
<TABLE>
<S> <C>
DELAWARE 95-2564584
(State or other Jurisdiction (I.R.S. Employer
of Incorporation or Identification Number)
Organization)
</TABLE>
4060 LAKEWOOD BOULEVARD, SIXTH FLOOR, LONG BEACH, CALIFORNIA 90808-1700
(562) 627-3000
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive offices)
MICHAEL C. DRAFFIN, ESQ.
VICE PRESIDENT--TAXES & ASSOCIATE GENERAL COUNSEL AND SECRETARY
BOEING CAPITAL CORPORATION
4060 LAKEWOOD BOULEVARD, SIXTH FLOOR, LONG BEACH, CALIFORNIA 90808-1700
(562) 627-3085
(Name, address, including zip code, and telephone number, including
area code, of agent for service)
WITH A COPY TO:
<TABLE>
<S> <C>
H. DAVID HEUMANN, ESQ. NORMAN D. SLONAKER, ESQ.
Assistant General Counsel Brown & Wood LLP
Boeing Capital Corporation One World Trade Center
4060 Lakewood Boulevard, Sixth Floor New York, New York 10048-0557
Long Beach, California 90808-1700
</TABLE>
--------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME TO
TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT.
--------------------------
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 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 an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Section 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of this prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
--------------------------
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
TITLE OF EACH PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF
CLASS OF SECURITIES AMOUNT TO AGGREGATE PRICE AGGREGATE OFFERING REGISTRATION
TO BE REGISTERED BE REGISTERED PER UNIT(1) PRICE(1) FEE(1)
<S> <C> <C> <C> <C>
Debt Securities..................... $2,500,000,000(2) 100% $2,500,000,000 $695,000
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Or, if any debt securities are (i) denominated other than in U.S. dollars,
such principal amount as shall result in an aggregate offering price
equivalent to $2,500,000,000 at the time of initial offering, or (ii) issued
at an original issue discount, such greater principal amount as shall result
in aggregate gross proceeds to the Registrant of $2,500,000,000.
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, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE.
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<PAGE>
INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A
REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR MAY
OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT BECOMES
EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL OR THE
SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BE ANY SALE OF THESE SECURITIES
IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE UNLAWFUL PRIOR
TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS OF ANY SUCH STATE.
<PAGE>
SUBJECT TO COMPLETION DATED JULY 7, 1999
PROSPECTUS
for an offering for sale of
$2,500,000,000
of
BOEING CAPITAL CORPORATION
DEBT SECURITIES
- This Prospectus describes debt securities which Boeing Capital Corporation
may issue and sell at various times. The section of this Prospectus
entitled The Debt Securities provides general information about the debt
securities. The Prospectus Supplement provides the specific terms of the
debt securities.
- The total principal amount of the debt securities issued under this
Prospectus will not exceed $2,500,000,000.
- We may distribute the debt securities through underwriters, dealers or
agents, or may sell directly to investors. More detailed information is
provided under the heading "How We Plan to Distribute the Debt
Securities."
- The date of this Prospectus is , 1999.
- Investing in our debt securities involves risks. You should read the "Risk
Factors" section in the accompanying Prospectus Supplement to find out
about these risks.
- Neither the Securities and Exchange Commission nor any state securities
commission has approved the debt securities or determined if this
Prospectus and the Prospectus Supplement are truthful or complete. It is
illegal for anyone to tell you otherwise.
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
-----
<S> <C>
WHERE YOU CAN FIND MORE INFORMATION ABOUT US............................................................... 4
CAUTIONARY NOTE ABOUT FORWARD-LOOKING STATEMENTS........................................................... 4
DESCRIPTION OF OUR BUSINESS AND OUR COMPANY................................................................ 5
GENERAL INFORMATION ABOUT BOEING CAPITAL................................................................... 5
USE OF PROCEEDS............................................................................................ 6
RATIO OF EARNINGS TO FIXED CHARGES......................................................................... 6
THE DEBT SECURITIES........................................................................................ 6
HOW WE PLAN TO DISTRIBUTE THE DEBT SECURITIES.............................................................. 18
LEGAL OPINIONS REGARDING THE VALIDITY OF THE DEBT SECURITIES............................................... 19
EXPERTS.................................................................................................... 19
</TABLE>
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<PAGE>
WHERE YOU CAN FIND MORE INFORMATION ABOUT US
We are subject to the information requirements of the Securities and
Exchange Act of 1934, and accordingly we file reports, proxy statements and
other information with the SEC. You can inspect and copy these materials at the
SEC's Public Reference Room at 450 Fifth Street, N.W., Washington, D.C. 50249.
Please call the SEC at 1-800-SEC-0330 for further information on the public
reference room. You can also find our SEC filings at the SEC's Internet website
at http://www.sec.gov.
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 our SEC filings. Information incorporated by reference is considered to
be part of this Prospectus and information that we file with the SEC after the
date of this Prospectus will automatically update and supersede the information
in this Prospectus. We incorporate by reference in this Prospectus the following
filings we have made with the SEC:
- our annual report on Form 10-K for the year ended December 31, 1998;
- our quarterly report on Form 10-Q for the quarter ended March 31, 1999;
and
- all future filings made by us with the SEC under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 until we sell all of the
debt securities.
You may receive a copy of any of these filings, at no cost, by writing or
calling Boeing Capital Corporation, 4060 Lakewood Blvd., Sixth Floor, Long
Beach, California 90808-1700, Attention: Treasury Department, telephone: (562)
627-3000.
We have filed a registration statement with the SEC to register the debt
securities under the Securities Act of 1933. This Prospectus is part of that
registration statement, but omits certain information contained in the
registration statement as permitted by the SEC rules. You may obtain copies of
the registration statement by writing to the address or calling the telephone
number in the paragraph above.
CAUTIONARY NOTE ABOUT FORWARD-LOOKING STATEMENTS
Certain statements in this Prospectus and in the Prospectus Supplement are
"forward-looking statements" under the Private Securities Litigation Reform Act
of 1995. These statements give our current expectations or forecasts of future
events and the future performance of Boeing Capital and do not relate directly
to historical or current events or the historical or current performance of
Boeing Capital. Most of these statements contain words that identify them as
forward-looking, such as "anticipate," "estimate," "expect," "project,"
"intend," "plan," "believe," or other words that relate to future events, as
opposed to past or current events.
You should understand as you read this Prospectus that any forward-looking
statement in this Prospectus or in the Prospectus Supplement may turn out to be
wrong. A forward-looking statement may turn out to be wrong because our
assumptions or predictions were in error, or because unknown risks arose after
the date of this Prospectus. For example, among other things, any of the
following could render a forward-looking statement inaccurate or wrong:
- changes in general economic and business conditions affecting the
commercial finance industry;
- our ability to compete with other commercial finance companies;
- the level of demand for financing; and
- changes in our business strategies.
4
<PAGE>
Please realize that an inaccurate or incorrect forward-looking statement may
mean that the future performance of Boeing Capital will vary materially from the
future performance predicted in this Prospectus and from the historical and
current performance of Boeing Capital.
DESCRIPTION OF OUR BUSINESS AND OUR COMPANY
We are a commercial finance company. Our primary businesses are commercial
aircraft financing and commercial equipment leasing and financing. Accordingly,
our business is broken into two main groups: the commercial aircraft finance
group and the commercial equipment leasing group. Both groups operate primarily
out of Boeing Capital's principal executive offices located at 4060 Lakewood
Boulevard, Sixth Floor, Long Beach, California 90808-1700 and our telephone
number is (562) 627-3000. Unless the context otherwise indicates, the terms
"we," "us," or "Boeing Capital" mean Boeing Capital Corporation and its
wholly-owned subsidiaries.
THE COMMERCIAL AIRCRAFT FINANCE GROUP
Through our commercial aircraft finance group, we finance commercial
aircraft by purchasing aircraft subject to lease to airlines and by providing
secured financing for aircraft purchases. Until 1986, Boeing Capital financed
only McDonnell Douglas aircraft. Since 1986, Boeing Capital has financed
aircraft manufactured by manufacturers other than McDonnell Douglas; however,
aircraft manufactured by McDonnell Douglas continue to comprise a significant
majority of Boeing Capital's commercial aircraft portfolio.
As of March 31, 1999 and December 31, 1998, the carrying value of Boeing
Capital's commercial aircraft portfolio was $1,544.9 million and $1,573.5
million, respectively. These numbers represent 54.7% and 56.2%, respectively, of
Boeing Capital's total portfolio. As of March 31, 1999 and December 31, 1998,
McDonnell Douglas aircraft comprised 71.4% and 71.2%, respectively, of Boeing
Capital's commercial aircraft portfolio. These numbers represent 39.1% and
40.0%, respectively, of Boeing Capital's total portfolio. As of March 31, 1999
and December 31, 1998, aircraft manufactured by The Boeing Company comprised
17.8% and 17.8%, respectively, of Boeing Capital's commercial aircraft
portfolio. These numbers represent 9.7% and 10.0%, respectively, of Boeing
Capital's total portfolio.
THE COMMERCIAL EQUIPMENT LEASING AND FINANCING GROUP
Through our commercial equipment leasing and financing group, we provide
single-investor, tax-oriented lease financing and debt financing. The group
specializes in leasing equipment such as executive aircraft, machine tools,
over-the-road transportation equipment, printing equipment, vessels and other
types of equipment which it believes will maintain strong collateral and
residual values. The group is based in Long Beach, but maintains marketing
offices in Chicago, Illinois, Atlanta, Georgia and Detroit, Michigan. The group
obtains business primarily through the direct solicitation of customers by its
marketing personnel.
As of March 31, 1999 and December 31, 1998, the carrying value of Boeing
Capital's commercial equipment leasing portfolio was $1,275.6 million and
$1,225.0 million, respectively. These numbers represent 45.2% and 43.7%,
respectively, of Boeing Capital's total portfolio.
GENERAL INFORMATION ABOUT BOEING CAPITAL
Boeing Capital was incorporated in Delaware in 1968 and is a wholly-owned
subsidiary of Boeing Capital Services Corporation, a wholly-owned subsidiary of
McDonnell Douglas Corporation, which, in turn, is a wholly-owned subsidiary of
The Boeing Company. We became an indirect subsidiary of The Boeing Company on
August 1, 1997 as the result of the merger of McDonnell Douglas Corporation with
a subsidiary of The Boeing Company.
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<PAGE>
USE OF PROCEEDS
Unless otherwise specified in the applicable Prospectus Supplement, we will
use the net proceeds from the sale of the debt securities:
- to fund the acquisition of businesses and parts of businesses;
- to purchase equipment for lease and loan; and
- for other corporate purposes such as reducing indebtedness, including
indebtedness we owe to McDonnell Douglas Corporation and The Boeing
Company.
RATIO OF EARNINGS TO FIXED CHARGES
The following table shows the ratio of our earnings to fixed charges for the
periods indicated:
<TABLE>
<CAPTION>
THREE
MONTHS
YEARS ENDING ENDED
DECEMBER 31, MARCH 31,
----------------------------------------------------- ---------
(DOLLARS IN MILLIONS) 1998 1997 1996 1995 1994 1999
--------- --------- --------- --------- --------- ---------
<S> <C> <C> <C> <C> <C> <C>
Ratio of income before provisions for income taxes and fixed
charges to fixed charges..................................... 1.80 1.68 1.62 1.57 1.37 1.85
--- --- --- --- --- ---
<CAPTION>
(DOLLARS IN MILLIONS) 1998
---------
<S> <C>
Ratio of income before provisions for income taxes and fixed
charges to fixed charges..................................... 1.61
---
</TABLE>
We have computed these ratios by dividing earnings available for fixed
charges for each period by fixed charges for that period. For purposes of these
computations, we calculated "earnings" by adding our pre-tax income and our
fixed charges. We calculated "fixed charges" by adding the interest we pay on
our indebtedness, the amount we amortize for debt financing costs and our
estimate of the amount of the interest within our rental expense.
THE DEBT SECURITIES
We may offer and sell from time to time two types of debt securities. We
have designated the first type as Senior Securities and the second type as
Subordinated Securities.
The Senior Securities are to be issued under an indenture dated as of
, 1999 (the "Senior Indenture"), between Boeing Capital and Bankers
Trust Company, as trustee ("Bankers Trust"). The Subordinated Securities are to
be issued pursuant to an indenture dated as of , 1999 (the
"Subordinated Indenture"), between Boeing Capital and Bankers Trust, as trustee.
The Senior Securities and Subordinated Securities are referred to herein as the
"debt securities". The Senior Indenture and Subordinated Indenture are
collectively referred to herein as the "Indentures" and Bankers Trust is herein
referred to as the "Trustee".
The following description of the debt securities summarizes certain of the
material provisions of the Indentures and the debt securities. This summary is
not intended to be a full restatement of all of the terms of the debt
securities. We urge you to read the Indentures because they, and not this
description, will define your rights as a holder of the debt securities. We have
filed the Indentures as exhibits to the Registration Statement of which this
Prospectus is a part.
The following description relates generally to every series of debt
securities. The particular terms of any series of debt securities will be set
forth in the Prospectus Supplement that relates to such series. If any
information in the Prospectus Supplement differs from the general terms
described below, you should rely on the information in the Prospectus Supplement
with respect to the particular debt securities being offered.
6
<PAGE>
GENERAL
The debt securities will be unsecured general obligations of Boeing Capital.
The Senior Securities will rank equally with all of our other unsecured and
unsubordinated indebtedness. The Subordinated Securities will be subordinated to
all of our existing and future senior indebtedness as described below under
"Subordination".
The Indentures do not limit the aggregate principal amounts of debt
securities that may be issued thereunder. The Indentures allow us to issue debt
securities from time to time in one or more series with varying maturities, at
par or at a discount. The Indentures also give us the ability to reopen a
previous issue of a series of debt securities and issue additional debt
securities of such series or establish additional terms for such series of debt
securities.
You should refer to the Prospectus Supplement applicable to the debt
securities for which this Prospectus is being delivered with respect to the
following terms:
- the title of the debt securities being offered and whether they are Senior
Securities, Subordinated Securities or both;
- the aggregate principal amount and the denominations in which the debt
securities are being offered;
- the price or prices at which the debt securities are being offered;
- the date or dates on which the principal of the debt securities is
scheduled to become due;
- the rate or rates, which may be fixed or variable, at which the debt
securities will bear interest or the formula by which the interest will be
calculated; the date or dates from which such interest will accrue, and
the method by which such interest will be paid;
- the terms and conditions upon which we may redeem the debt securities;
- any obligation by us to redeem, purchase or repay the debt securities at
the option of the holder;
- any provisions for the establishment of a sinking, purchase or other
similar fund, if any;
- whether the debt securities are to be issued as fully registered
securities, bearer securities or both, and with or without coupons, or
both;
- whether the debt securities will be issued in whole or in part in the form
of a global certificate;
- any provisions for the payment of specified taxes, assessments or other
governmental charges to non-United States persons or option to redeem the
affected debt securities in lieu of making such payments;
- any additional covenants applicable to the debt securities;
- the currency or currency unit of payment of principal of and premium, if
any, and interest on such debt securities, and any index used to determine
the amount of principal of and premium, if any, and interest on such debt
securities;
- any events of default other than those described in the Indentures; and
- any other terms of such debt securities.
FORM, EXCHANGE, REGISTRATION AND TRANSFER
The debt securities of a series may be issued in fully registered form, as
bearer securities with coupons attached or both. The debt securities of a series
may be issuable in permanent global form. If
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<PAGE>
the debt securities are issuable as both registered and bearer securities, the
holder can opt to exchange the bearer securities (accompanied by all unmatured
coupons, except as provided below, and all matured coupons in default) for
registered securities of the same series of any authorized denominations and of
like aggregate principal amount and tenor. Unless the Prospectus Supplement for
such series provides otherwise, bearer securities that are to be exchanged
between a record date and a date on which the next interest payment is due will
be surrendered without the coupon relating to such interest payment and such
interest payment will be made to the holder of the coupon when due. We will not
issue bearer securities in exchange for registered securities.
The debt securities may be presented for exchange and registration of
transfer at the offices of the Trustee, Four Albany Street, New York, New York
10006, Attention: Corporate Trust and Agency Group. The debt securities may also
be submitted to transfer agents designated by us in the applicable Prospectus
Supplement. The transfer or exchange will be effected when the Trustee or
authorized transfer agent is satisfied with the documents of title and the
identity of the person making the request. At a minimum, we will establish
transfer agents, in the case of registered securities, in each place where
payments can be made with respect to such series, and in the case of bearer
securities, in each place of payment for such series located outside the United
States. Additional transfer agents may be designated in the Prospectus
Supplement or otherwise from time to time and we reserve the right to rescind
the designation of any transfer agent or to approve a change in the location
through which any transfer agent acts. While there will be no service charge for
any registration of transfer or exchange of the debt securities, we may require
payment of an amount sufficient to cover any taxes and other governmental
charges associated with such registration.
If only part of a series of outstanding debt securities is to be called for
redemption, we will not be required to do the following:
1. register the transfer of or exchange debt securities of the series to be
redeemed from 15 days before the date notice is given identifying the serial
numbers of the debt securities to be redeemed and ending at the close of
business on (a) the day of mailing of the notice of redemption, if the debt
securities of such series are issuable only as registered securities, (b) the
first day of publication of the notice of redemption, if the debt securities of
such securities are issuable ONLY as bearer securities, or (c) the day of
mailing of the notice of redemption if the debt securities of such series are
issuable as both registered securities and bearer securities and no publication
of the notice has been made;
2. register the transfer or exchange of any registered security called for
redemption except for the portion, if any, that is not being redeemed;
3. exchange any bearer securities called for redemption, except in exchange
for registered securities of that series of like tenor and principal amount that
will be immediately surrendered for redemption.
PAYMENT
We will make payments of principal of and premium, if any, and interest, if
any, on registered securities at the offices of the agent or agents designated
by us to make such payments. We may also make payments of interest, at our
option, by check mailed to the address of the person appearing on the securities
register maintained by Trustee or by wire transfer to the account of the person
appearing on such register. Unless otherwise set forth in the applicable
Prospectus Supplement, we will make payments of interest due on the registered
securities to the holder of record as it appears on the register maintained by
the Trustee at the close of business on the date established for making such
determination.
Unless otherwise indicated in the applicable Prospectus Supplement, we will
make payments of principal of and premium, if any, and interest, if any, on
bearer securities, subject to any applicable law
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<PAGE>
and regulations, at the offices of paying agents designated by us located
outside the United States, or by check or wire transfer to an account maintained
by the payee outside the United States. Unless otherwise indicated in the
applicable Prospectus Supplement, we will only make payments of interest on
bearer securities against surrender of the coupon relating to such interest
installment.
We have designated the Trustee as our sole paying agent for debt securities
issuable solely as registered securities. We have designated, in the case of (a)
registered securities, the Trustee as paying agent in the Borough of Manhattan,
The City of New York and, (b) bearer securities, a paying agent in each place
outside of the United States where such debt securities or their associated
coupons may be surrendered for payment, provided, however, that if such debt
securities are listed on a stock exchange located outside the United States and
if required by the rules of such stock exchange, we have agreed to maintain a
paying agent in such cities outside the United States as required.
Additional paying agents may be designated in the Prospectus Supplement or
otherwise from time to time and we reserve the right to rescind the designation
of any paying agent or to approve a change in the location through which any
paying agent acts.
Any moneys we pay to a paying agent for the payment of principal of,
premium, or interest on the debt securities which remains unclaimed at the first
anniversary of the date such payment was due will be returned to us.
GLOBAL SECURITIES
We may issue the debt securities in global form. The global securities may
be issued in registered or bearer form and may be temporary or permanent. The
global securities will be deposited with, or on behalf of, the depository
identified in the applicable Prospectus Supplement. The Prospectus Supplement
will also describe the circumstances, if any, under which beneficial owners may
be able to exchange their interest in a global security for definitive
securities of the same series. You are advised to refer to the Prospectus
Supplement for more detailed information with respect to the issuance of
definitive securities and the terms thereof, and the terms of the depositary
arrangements we have made with respect to any global security.
CERTAIN COVENANTS
DEFINITIONS.
The following defined terms will be used in this description of the
covenants:
"Capital Stock" means any and all shares, interests, participations or other
equivalents (however designated) evidencing equity ownership.
"Consolidated Assets" means the amount of all assets which under generally
accepted accounting principles as in effect on the date of such balance sheet
would appear on our consolidated balance sheet (after deducting related
depreciation, amortization, unearned finance charges, allowance for credit
losses and other valuation reserves), but not including goodwill, unamortized
debt discount and expenses, corporate organization expenses, patents and
trademarks.
"Consolidated Liabilities" means the amount of all liabilities which under
generally accepted accounting principles as in effect on the date of such
balance sheet would appear on our consolidated balance sheet, including, without
limitation, the par value or involuntary liquidation value, whichever is
greater, of minority interests, if any, in preference stock of all subsidiaries,
but not including the following: redeemable preferred or preference stock,
minority interests, if any, in common stock of subsidiaries, valuation reserves
(including unearned finance charges and allowances for credit losses deducted
from assets), our Capital Stock and surplus and surplus reserves, deferred
taxes, deferred investment tax credits and any of our Subordinated Indebtedness.
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"Debt" means, with respect to any person, all obligations for borrowed money
of such person which in accordance with generally accepted accounting principles
shall be classified upon a balance sheet of such person as liabilities of such
persons, including (a) direct debt and other similar monetary obligations of
such person, (b) obligations secured by any lien upon property owned by such
person or obligations created or arising under any conditional sale, capital
lease, or other title retention agreement with respect to property acquired by
such person; provided, however, that debt does not include any indebtedness,
including purchase money indebtedness, with respect to which a creditor has no
recourse against the obligor except recourse to specific property the
acquisition of which was financed by or otherwise secures such indebtedness, or
the proceeds of any sale or lease of such property or both, and (c) obligations
under agreements to pay installments of purchase price or other like payments
with respect to fixed assets not utilized by such person or its subsidiaries in
the ordinary course of business, including obligations ostensibly to pay rent
under which an equity interest is to be acquired in the rented property. Debt
includes all guarantees of such person to the extent the amount of such
guarantees is in excess of 50% of the Shareholder's Equity of such person.
"Lien" means any interest in Property securing an obligation owed to, or a
claim by, a Person other than the owner of the Property, whether such interest
is based on the common law, statute or contract (but excluding a landlord's
statutory lien for rent not yet due), and including, but not limited to, the
security interest lien arising from a mortgage, encumbrance, pledge, conditional
sale or trust receipt or a lease, consignment or bailment for security purposes.
The term "Lien" shall include reservations, exceptions, encroachments,
easements, rights-of-way, covenants, conditions, restrictions, leases and other
title exceptions and encumbrances affecting Property. For the purpose of the
Indentures, Boeing Capital shall be deemed to be the owner of any Property which
it has acquired or holds subject to a conditional sale agreement, capital lease
or other arrangement pursuant to which title to the Property has been retained
by or vested in some other person for security purposes.
"Original Issue Discount Security" means any debt security which provides
for an amount less than the principal amount thereof to be due and payable.
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Senior Indebtedness" means all of the indebtedness of, or guaranteed by,
Boeing Capital for borrowed money (including the principal of, premium, if any,
or interest on any such borrowed money and any commitment fees for unborrowed
amounts which, if borrowed, would constitute Senior Indebtedness), whether
currently outstanding or hereafter incurred, unless, under the instrument
evidencing the same or under which the same is outstanding, it is expressly
provided that such indebtedness is subordinate to other indebtedness and
obligations of Boeing Capital.
"Shareholder's Equity" of any Person means the shareholder's equity
appearing on the balance sheet of such Person as determined under generally
accepted accounting principles.
"Subordinated Indebtedness" means the Subordinated Securities and all other
indebtedness of, or guaranteed by, Boeing Capital whether or not outstanding on
the date of the Subordinated Indenture, which is by the terms thereof made
subordinate and junior in right of payment to all Senior Indebtedness.
LIMITATION UPON LIENS
The Indentures provide that we will not, create or permit to continue in
existence any Lien or charge of any kind, upon any of our Property or assets
unless the debt securities then outstanding shall be equally and ratably secured
(subject, in the case of the Subordinated Securities, to subordination as
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to rights of payment as provided in the Subordinated Indenture), with any other
obligation or indebtedness so secured, except that we may:
(a) lease or sublease Property to others in the ordinary course of our
business or lease or sublease any Property if such Property is not needed by us
in the operation of our business;
(b) create, assume and incur or permit to exist Liens on Property acquired
or constructed by us to secure the purchase price of such Property (or to secure
indebtedness for money borrowed or incurred prior to or within 12 months after
the acquisition or construction of any such Property to be subject to such Lien
for the purpose of such acquisition or construction), or Liens existing on any
such Property at the time of acquisition, whether or not assumed, or any Lien
existing on any Property of any Person at the time it becomes a subsidiary or is
merged or consolidated with Boeing Capital or at the time of acquisition of the
assets of a Person as an entirety or substantially as an entirety by Boeing
Capital, and any conditional sales agreement or other title retention agreement
with respect to any Property hereafter acquired; provided, however, that the
aggregate principal amount of the indebtedness secured by all such Liens on any
particular Property shall not exceed the cost of such Property, including the
improvements thereon, to Boeing Capital, and provided, further, that any such
Lien does not extend to other Property owned prior to such acquisition or
construction or to Property thereafter acquired or constructed;
(c) create, assume and incur such Liens that secure indebtedness for
borrowed money, including purchase money indebtedness, which are incurred to
finance or refinance (irrespective of whether the original acquisition of the
Property was with or from money borrowed) the acquisition of Property subject to
such Lien and in respect of which the creditor has no recourse against Boeing
Capital except recourse to such Property or to the proceeds of any sale or lease
of such Property or both;
(d) create, assume and incur or permit to exist Liens on Property of Boeing
Capital in favor of the United States of America or any state thereof, or any
department, governmental body, agency or instrumentality or political
subdivision of any such jurisdiction, to secure partial, progress, advance or
other payments pursuant to any contract, or statute relating thereto;
(e) make any deposit with or give any form of security to any governmental
agency or other body created or approved by law or governmental regulation in
order to enable Boeing Capital to maintain self-insurance, or to participate in
any fund or payment in connection with workmen's compensation, unemployment
insurance, old-age pensions, or other social security, or to share in any
privileges or other benefits available to corporations participating in such
arrangements, or for any other purpose at any time required by law or regulation
promulgated by any government agency or office as a condition to the transaction
of any business or the exercise of any privilege or license, or deposit assets
of Boeing Capital 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 by Boeing
Capital from any judgment or decree against it, or in connection with any other
proceedings in actions at law or suits in equity by or against Boeing Capital;
(f) incur or suffer to be incurred or to exist upon any of its Property or
assets (i) Liens for taxes, assessments or other governmental charges or levies
which are not yet due or payable without penalty or of which amount,
applicability or validity is being contested by Boeing Capital in good faith by
appropriate proceedings and Boeing Capital shall have set aside on its books
reserves which it deems to be adequate with respect thereto (segregated to the
extent required by generally accepted accounting principles), provided, that
foreclosure, distraint, sale or similar proceedings (other than those that may
be and are cured by payment) have not been commenced, (ii) the Liens of any
judgment and other similar Liens arising in connection with court proceedings,
provided such Lien is discharged or the execution or other enforcement of such
Lien is effectively stayed within six months of the creation of such Lien, (iii)
undetermined Liens or charges incident to construction, (iv) materialmen's,
mechanics', workmen's, repairmen's, landlords' liens for rent or other like
Liens arising in the ordinary course of business in respect of obligations which
are not overdue or which are being contested by Boeing
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Capital in good faith by appropriate proceedings, or deposits to obtain the
release of such Liens or (v) any encumbrances consisting of zoning restrictions,
licenses, easements and restrictions on the use of real property and minor
defects and irregularities in the title thereto, which do not materially impair
the use of such property by Boeing Capital in the operation of its business or
the value of such property for the purpose of such business;
(g) create or suffer to be created or to exist in favor of any lender of
moneys or holder of commercial paper of Boeing Capital in the ordinary course of
business a banker's lien or right of offset in the holder of such indebtedness
on moneys of Boeing Capital deposited with such lender or holder in the ordinary
course of business;
(h) create, assume and incur Liens that relate solely to the purchase of,
or the investment in or with respect to, a specific item or items of tangible
personal property and secures indebtedness evidenced by participation
certificates, trust certificates, indentures or the like, however denominated,
provided, further, that no such Lien shall constitute a general lien or mortgage
on substantially all the tangible assets of Boeing Company;
(i) refund, replace or extend any Lien permitted by the Indentures for
amounts not exceeding the principal amount of indebtedness so refunded or
extended at the time of the refunding or extension thereof, and covering only
the same Property theretofore securing the same;
(j) deposit or pledge assets 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;
(k) permit to exist any Lien existing on the date of the Indentures;
(l) create, assume and incur or permit to exist any Lien on any aircraft or
equipment held by Boeing Capital for lease to third parties, if such Lien
secures an obligation in respect of money borrowed which provides that recourse
to Boeing Capital shall not be had for the payment of such obligation; and
(m) in addition to the Liens permitted by clauses (a) through (l) above,
secure an aggregate principal amount of indebtedness of Boeing Capital not in
excess of 15% of Consolidated Assets.
Reference is made to the Prospectus Supplement relating to the Securities
offered thereby for information with respect to additional covenants that may be
included in the terms of the debt securities.
MERGER AND SALES OF ASSETS BY BOEING CAPITAL
Boeing Capital may consolidate or merge with or into any other corporation,
and Boeing Capital may convey, transfer or lease all or substantially all of its
Properties or assets to another Person provided that:
(a) the corporation formed by such consolidation or into which Boeing
Capital is merged or the Person which acquires by conveyance or transfer, or
which leases, the properties and assets of Boeing Capital substantially as an
entirety shall be a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia, and if
such corporation is not Boeing Capital, shall expressly assume, by an indenture
supplemental, 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 (including all additional amounts, if any) on all the debt
securities and the performance of every covenant of the respective Indenture on
the part of Boeing Capital to be performed or observed;
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(b) immediately after giving effect to such transaction and treating any
indebtedness which becomes an obligation of Boeing Capital as a result of such
transaction as having been incurred by Boeing Capital at the time of such
transaction, no event of default, and no event which, after notice or lapse of
time or both, would become an event of default, shall have happened and be
continuing;
(c) if, as a result of any such consolidation, merger, conveyance, transfer
or lease, the properties or assets of Boeing Capital would become subject to a
mortgage, pledge, lien, security interests or other encumbrances which would not
be permitted by the applicable Indenture, Boeing Capital or such successor
corporation or Person, as the case may be, shall take such steps as shall be
necessary to effectively secure the debt securities equally and ratably with (or
prior to) all indebtedness secured thereby; and
(d) Boeing Capital has delivered to the Trustee an officer's certificate
and an opinion of counsel, each stating that such consolidation (if the
corporation formed by such consolidation is not Boeing Capital), merger,
conveyance, transfer or lease and such supplemental indenture comply with the
terms of the respective Indentures and that all conditions precedent therein
provided for relating to such transaction shall have been complied with.
EVENTS OF DEFAULT, NOTICE AND WAIVER
The following events are defined in the Indentures as "events of default":
- the non-payment of any interest extending 30 days beyond the date such
interest payment became due and whether or not, in the case of the
Subordinated Securities, such payment is prohibited by the subordination
provisions referred to below under "Subordination";
- non-payment of any principal of (or premium, if any, on) the debt
securities of the applicable series as such payments become due whether or
not, in the case of the Subordinated Securities, such payment is
prohibited by the subordination provisions referred to below under
"Subordination";
- default in the deposit of any sinking fund payment when and as due,
whether or not, in the case of the Subordinated Securities, such payment
is prohibited by the Subordination provisions referred to below under
"Subordination";
- default in the performance of any other covenant or warranty of Boeing
Capital in the respective Indenture which remains unremedied for a period
of 60 days after notice of default by the holders of at least 25% in
principal amount of the outstanding debt securities of that series or by
the Trustee;
- an event of default, as defined in any mortgage, indenture or instrument
evidencing any indebtedness of Boeing Capital for money borrowed
(including other series of debt securities) in excess of $35,000,000
aggregate principal amount then outstanding (except that such dollar
amount shall not apply with respect to a default with respect to debt
securities of any series outstanding), as a result of which such
indebtedness of Boeing Capital shall have been accelerated and such
acceleration shall not have been annulled or rescinded, or there having
been deposited in trust a sum of money sufficient to discharge in full
such indebtedness, within a period of 20 days after written notice
thereof;
- certain events of bankruptcy, insolvency or reorganization; or
- any other event of default provided in a supplemental indenture with
respect to debt securities of a particular series.
Reference is made to the Prospectus Supplement relating to any series of
offered debt securities which are Original Issue Discount Securities for the
particular provisions relating to the principal
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amount of such Original Issue Discount Securities due upon acceleration upon the
occurrence of an event of default and its continuation.
The Trustee is required, within 90 days after the occurrence of any default
which is known to the Trustee and is continuing, to give to the holders of the
applicable series of debt securities with respect to which such default has
occurred notice of such default, provided, that, except in the case of default
in the payment of principal, premium, if any (including any sinking fund
payment) or interest, if any, on a series of debt securities with respect to
which such default has occurred, the Trustee shall be protected in withholding
such notice if it determines in good faith that the withholding of such notice
is in the interest of the holder of the debt securities of such series.
If an event of default with respect to debt securities of any series then
outstanding shall have occurred and be continuing, the Trustee or the holders of
at least 25% in principal amount of the outstanding debt securities of such
series may declare the principal (or, if the debt securities of that series are
Original Issue Discount Securities, such portion of the principal amount as may
be specified in the terms of that series) and accrued interest of all the debt
securities of such series to be due and payable immediately; provided, however,
that in certain cases, the holders of a majority in aggregate principal amount
of the debt securities of such series then outstanding may rescind and annul
such declaration and its consequences.
The Trustee, subject to its duties during default to act with the required
standard of care, may require indemnification by the holders of a series of debt
securities with respect to which a default has occurred before proceeding to
exercise any right or power under the applicable Indenture at the request of the
holders of debt securities of such series. The holders of a majority in
principal amount of the outstanding debt securities of a series may 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.
In certain cases, the holders of not less than a majority in principal
amount of an outstanding series of debt securities may, on behalf of the holders
of all debt securities of such series, and any coupons appertaining thereto,
waive any past default with respect to such series except a default in the
payment of the principal, premium, if any, or interest (except to the extent
that such interest has been paid), if any, on such series of debt securities
with respect to which such default has occurred.
We are required to file annually with the Trustee a certificate as to the
absence of defaults under each Indenture.
The occurrence of an event of default under an Indenture may give rise to a
cross-default under other series of debt securities issued under such Indenture
and other indebtedness of ours that may be outstanding from time to time.
NOTICES
Except as otherwise provided in the Indentures, notices to holders of bearer
securities will be given by publication at least twice in a daily newspaper in
The City of New York and in such other city or cities as may be specified in
such debt securities. Notices to holders of registered securities will be given
by mail to the addresses of such holders as they appear in the security
registers maintained by the Trustee.
MODIFICATION OF THE INDENTURES
Modification and amendment of the Indentures may be made by us and the
Trustee without the consent of any holder, for any of these purposes:
- to evidence the succession of another corporation to Boeing Capital;
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- to add to the covenants of Boeing Capital for the benefit of the holders
of all or any series of debt securities;
- to add additional events of default;
- to change any provision of the Indentures to facilitate the issuance of
bearer securities;
- to change or eliminate any provision of any Indenture, provided no debt
security outstanding of any series is entitled to the benefit of such
provision;
- to secure the debt securities;
- to establish the form or terms of unissued debt securities;
- to provide for the acceptance of appointment by a successor trustee; or
- to cure any ambiguity, defect or inconsistency in either Indenture or both
of them provided such action does not adversely affect the interests of
holders of debt securities.
Modification and amendment of the Indentures may be made by us and the
Trustee with the consent of the holders of not less than 66 2/3% in principal
amount of the outstanding debt securities of an affected series, provided that
no such modification or amendment may, without the consent of the holder of each
outstanding debt security affected thereby:
- change the stated maturity date or the principal of, premium, if any, or
any installment of interest (or any additional amount) on, any such debt
security;
- reduce the principal amount or rate of interest thereon;
- change the redemption price, if applicable;
- change the place or currency of payment of principal of or premium, if
any, or interest on any debt security;
- impair the right to institute suit for the enforcement of any such payment
on or after the stated maturity thereof;
- reduce the above-stated percentage of outstanding debt securities
necessary to modify or amend the respective Indentures;
- modify the foregoing requirements or reduce the percentage of outstanding
debt securities necessary to waive any past default or compliance with
certain restrictive provisions to less than a majority; or
- with respect to the Senior Securities, reduce the amount of principal of
an Original Issue Discount Security payable upon acceleration of the
maturity thereof.
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DISCHARGE AND DEFEASANCE
Under each of the Indentures, we may discharge certain obligations to
holders of any series of debt securities that have not already been delivered to
the Trustee for cancellation and that either have become due and payable or will
become due and payable within one year (or scheduled for redemption within one
year) by depositing with the applicable Trustee, in trust, funds in an amount
sufficient to pay the entire indebtedness on such debt securities in respect of
principal and premium, if any, and interest, if any, to the date of such deposit
(if such debt securities have become due and payable) or to the maturity
thereof, as the case may be.
Each Indenture further provides that, if applicable to the debt securities
of any series, we may elect to defease and be discharged from any and all
obligations with respect to such debt securities (except for, among other
things, the obligation to pay additional amounts, if any, upon the occurrence of
certain events of taxation, assessment or governmental charge with respect to
payments on such debt securities and the obligations to register the transfer or
exchange of such debt securities, to replace temporary or mutilated, destroyed,
lost or stolen securities, to maintain an office or agency in respect of such
debt securities and to hold moneys for payment in trust) ("defeasance") upon the
irrevocable deposit by us with the Trustee, in trust, of an amount of money or
U.S. Government Obligations (as defined below), or both, applicable to such debt
securities which through the scheduled payment of principal and interest in
accordance with their terms will provide money in an amount sufficient to pay
the principal of (and premium, if any) and interest, if any, on such securities,
and any mandatory sinking fund or analogous payments thereon, on the scheduled
due dates therefor.
Such a trust may only be established if, among other things, (i) the
defeasance does not result in a breach or violation of, or constitute a default
under, the applicable Indenture or any other agreement or instrument to which we
are a party or by which we are bound, (ii) no default or event of default with
respect to the debt securities to be defeased shall have occurred and be
continuing on the date of the establishment of such a trust and (iii) we have
delivered to the Trustee an opinion of counsel (as specified in the applicable
Indenture) to the effect that the holders of such debt securities will not
recognize income, gain or loss for U.S. federal income tax purposes as a result
of such defeasance and will be subject to U.S. 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, and such opinion of counsel must refer to and
be based upon a letter ruling of the Internal Revenue Service received by us, a
Revenue Ruling published by the Internal Revenue Service or a change in
applicable U.S. federal income tax law occurring after the date of the
applicable Indenture.
"U.S. Government Obligations" means generally direct noncallable obligations
of the United States of America for the payment of which its full faith and
credit is pledged or obligations of a person controlled or supervised by and
acting as an agency or instrumentality of the United States of America, the
timely payment of which is unconditionally guaranteed as a full faith and credit
obligation by the United States of America.
The applicable Prospectus Supplement may further describe the provisions, if
any, permitting defeasance, including any modifications to the provisions
described above, with respect to the debt securities of a particular series.
SUBORDINATION
The indebtedness evidenced by the Subordinated Securities and the payment of
the principal of and premium, if any, and interest, if any, on each and all of
the Subordinated Securities are subordinated in right of payment to the prior
payment in full of Senior Indebtedness and, unless specifically designated as
ranking junior to other subordinated debt securities of Boeing Capital, are PARI
PASSU with all other subordinated debt securities of Boeing Capital which have
not been specifically designated as
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ranking junior to other subordinated debt securities of Boeing Capital. We have
not issued any subordinated debt ranking junior to the Subordinated Securities
but we reserve the right to issue such junior subordinated debt.
If we default in the payment of any Senior Indebtedness, unless and until
such default shall have been cured or waived, no direct or indirect payment
shall be made on account of the principal of and premium, if any, or interest,
if any, or any additional amounts on the Subordinated Securities, or in respect
of any sinking fund for, or redemption, retirement or purchase or other
acquisition of any of the Subordinated Securities.
If any other event of default occurs with respect to any Senior
Indebtedness, permitting the holders thereof to accelerate the maturity thereof,
then, unless and until such event of default shall have been cured or waived, no
direct or indirect payment shall be made on account of the principal of, or
premium, if any, or interest, if any (including additional amounts) on any
Subordinated Securities or in respect of any sinking fund for, or redemption,
retirement, purchase or other acquisition of the Subordinated Securities, during
any period of 90 days after written notice of such default shall have been given
to us by any holder of Senior Indebtedness or during any period in which any
judicial proceeding is pending in respect of such default and a notice of
acceleration of the maturity of such Senior Indebtedness has been transmitted to
us in respect of such default.
In the event of: (i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment or other similar proceeding relating to Boeing
Capital, its creditors or its property: (ii) any proceeding for the liquidation,
dissolution or other winding up of Boeing Capital, whether voluntary or
involuntary, whether or not involving bankruptcy proceedings; (iii) any
assignment by Boeing Capital for the benefit of creditors; or (iv) any other
marshalling of the assets of Boeing Capital, all Senior Indebtedness shall first
be paid in full before any payment or distribution shall be made to any holder
of Subordinated Securities.
If any such payment or distribution to be paid to the holders of Senior
Indebtedness shall be made to any holder of Subordinated Securities in
contravention of the foregoing and before all of the Senior Indebtedness shall
have been paid in full, such payment or distribution shall be received in trust
for the benefit of, and shall be paid over or delivered and transferred to, the
holders of Senior Indebtedness at the time outstanding in accordance with the
priorities then existing among such holders for applications to the payment of
all Senior Indebtedness remaining unpaid.
Senior Indebtedness shall not be deemed to have been paid in full unless the
holders thereof shall have received cash equal to the amount of Senior
Indebtedness then outstanding. Upon payment in full of all Senior Indebtedness,
the holders of Subordinated Securities shall be subrogated to all rights of any
holders of Senior Indebtedness to receive any further payments or distributions
applicable to the Senior Indebtedness until all amounts owing on the
Subordinated Securities shall have been paid in full, and such amounts or
distributions which otherwise would be paid or distributed to the holders of
Senior Indebtedness, shall, as between Boeing Capital and its creditors (other
than the holders of Senior Indebtedness), on the one hand, and the holders of
the Subordinated Securities, on the other hand, be deemed to be a payment by
Boeing Capital on account of Senior Indebtedness and on account of the
Subordinated Securities.
As of the date hereof, we had issued none of our Senior Securities pursuant
to the Senior Indenture and none of our Subordinated Securities pursuant to the
Subordinated Indenture. As of , 1999, there was $ in Senior
Indebtedness outstanding and $ in Subordinated Indebtedness outstanding.
Pursuant to certain indebtedness of Boeing Capital not covered by the
Indentures, the most restrictive covenants regarding the incurrence of
additional Senior Indebtedness allows us to incur additional Senior Indebtedness
to the extent of 500% of the sum of net worth plus Subordinated Indebtedness,
less certain adjustments. The maximum amount of additional Senior Indebtedness
which could have been incurred as of March 31, 1999 was $288.6 million. In
addition, certain of our other
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indebtedness not covered by the Indentures contains covenants restricting the
incurrence of additional Senior Indebtedness. However, such covenants are not as
restrictive as the covenants described in this paragraph.
The holders of the debt securities should not rely on the continued
existence of the covenants described above because they will expire (i) as the
indebtedness related thereto matures and is paid, (ii) if we prepay such related
indebtedness or (iii) if we amend or delete such restrictions through the
process of negotiation.
HOW WE PLAN TO DISTRIBUTE THE DEBT SECURITIES
METHOD OF DISTRIBUTION
We may sell the debt securities to or through underwriters, to be designated
from time to time, and we also may sell debt securities directly to investors or
through agents or broker-dealers. In addition, we may authorize agents of Boeing
Capital to solicit and receive offers from certain institutions to purchase the
debt securities. Any distributor to whom or through whom we will sell debt
securities will be named in the applicable Prospectus Supplement. Each
Prospectus Supplement will detail the method of distribution for the debt
securities offered in connection with such Prospectus Supplement.
PRICING
The debt securities may be sold from time to time in one or more
transactions at:
- a fixed price or prices, subject to change;
- market prices prevailing at the time of sale;
- prices relating to prevailing market prices; or
- negotiated prices.
COMPENSATION TO DISTRIBUTORS OF THE DEBT SECURITIES
We, or purchasers of debt securities for whom underwriters act as agents,
may pay compensation to the distributors of the debt securities. Such
compensation may be discounts, concessions or commissions. This compensation, as
well as profit received by distributors in connection with the resale of debt
securities, may be deemed to be underwriting discounts and commissions under the
Securities Act of 1933. Each Prospectus Supplement will describe any distributor
receiving compensation from us deemed to be "underwriting discounts and
commissions" under the Securities Act of 1933 and the compensation received by
the distributor.
INDEMNIFICATION OF DISTRIBUTORS OF THE DEBT SECURITIES
We may enter into agreements with distributors of the debt securities to
indemnify them against certain liabilities, including liabilities under the
Securities Act of 1933.
BEARER DEBT SECURITIES
Each distributor of debt securities which are issuable as bearer debt
securities will agree not to offer, sell or deliver, in any manner, bearer debt
securities in the United States or to United States persons (other than
qualified institutional buyers) in connection with the original issuance of the
debt securities.
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OTHER INFORMATION
Some distributors of the debt securities or affiliates of such persons may
perform services for Boeing Capital or engage in transactions with Boeing
Capital in the ordinary course of business. In connection with the distribution
of the debt securities, Boeing Capital may enter into swap or other hedging
transactions with, or arranged by, distributors of the debt securities or
affiliates of such persons. These distributors or their affiliates may receive
compensation, trading gain or other benefits from these transactions.
LEGAL OPINIONS REGARDING THE VALIDITY OF THE DEBT SECURITIES
Sidley & Austin, Los Angeles, California or Michael C. Draffin, Vice
President--Taxes & Associate General Counsel and Secretary of Boeing Capital or
H. David Heumann, Assistant General Counsel of Boeing Capital or Melinda A.
Johnson, Counsel of Boeing Capital will pass upon the validity of the debt
securities for Boeing Capital. Brown & Wood LLP, New York, New York will pass
upon the validity of the debt securities for the underwriters and agents. Mr.
Draffin, Mr. Heumann or Ms. Johnson may rely, as to all matters governed by New
York law, on the opinion of Brown & Wood LLP.
EXPERTS
The financial statements and the related financial statement schedules
incorporated in this Prospectus by reference from Boeing Capital's Annual Report
on Form 10-K for the years ended December 31, 1998 and 1997 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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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCES
The following table sets forth all expenses in connection with the issuance
and distribution of the securities being registered. All amounts shown are
estimates, except for the registration fee.
<TABLE>
<S> <C>
Registration Fee........................................... $ 695,000
Fees and Expenses of Accountants........................... 40,000
Fees and Expenses of Counsel............................... 182,500
Blue Sky Fees and Expenses................................. 2,000
Fees and Expenses of Trustee............................... 3,500
Printing Expenses.......................................... 36,000
Rating Agency Fees......................................... 393,000
Miscellaneous.............................................. 14,500
Total...................................................... $1,366,500
</TABLE>
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Section 145 of the Delaware General Corporation Law permits indemnification
of officers and directors of domestic or foreign corporations under certain
circumstances and subject to certain limitations. Article XXIII of Boeing
Capital's by-laws and resolutions adopted by Boeing Capital's board of directors
contain provisions for indemnification of its directors and officers consistent
with the provisions of said Section 145.
Boeing Capital's by-laws provide, in substance, that each person made a
party or threatened to be made a party to any type of proceeding, by reason of
the fact that he or she is or was a director or officer of Boeing Capital or
that, being or having been such a director or officer or an employee of Boeing
Capital, he or she is or was serving at the request of an executive officer of
Boeing Capital as a director, officer, employee or agent of another corporation,
will be indemnified and held harmless by Boeing Capital to the full extent
permitted by the Delaware General Corporation Law, against all expense,
liability and loss actually and reasonably incurred by such person in connection
therewith. In certain cases, the indemnified party will be entitled to the
advancement of certain expenses relating to indemnification.
Officers and directors of Boeing Capital are covered by insurance that (with
certain exceptions and within certain limitations) indemnifies them against
losses and liabilities arising from any alleged "wrongful act" including any
alleged error or misstatement, misleading statement, wrongful act or omission,
neglect or breach of duty in their capacities as such.
II-1
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ITEM 16. LIST OF EXHIBITS
<TABLE>
<CAPTION>
1. Form of Distribution Agreement.
<S> <C>
4(a). Form of Indenture between Boeing Capital Corporation and Bankers Trust Company
providing for the issuance of the Senior Notes.
4(b) Form of Indenture between Boeing Capital Corporation and Bankers Trust Company
providing for the issuance of the Subordinated Notes.
4(c). Form of Senior Fixed Rate Medium-Term Note.
4(d). Form of Subordinated Fixed Rate Medium-Term Note.
4(e). Form of Senior Floating Rate Medium Term Note.
4(f). Form of Subordinated Floating Rate Medium-Term Note.
5. Opinion of Sidley & Austin.
12. Computation of Ratio of Earnings to Fixed Charges.
23(a). Consent of Deloitte & Touche LLP.
23(b). Consent of Ernst & Young LLP.
23(c). Consent of Sidley & Austin (included in Exhibit 5).
24. Power of Attorney (included on page II-4).
25(a). Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
Bankers Trust Company with respect to the Senior Debt Securities.
25(b). Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of
Bankers Trust Company with respect to the Subordinated Debt Securities.
</TABLE>
ITEM 17. UNDERTAKINGS
The undersigned registrant hereby undertakes:
(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 (1)(i) and (1)(ii) do not apply if the
Registration Statement is on Form S-3, Form S-8 or Form F-3 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 Exchange Act that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the Securities
Act, 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.
II-2
<PAGE>
(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.
The undersigned registrant hereby undertakes 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
Exchange Act that is incorporated by reference in the Registration Statement
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.
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 Commission such indemnification is against public policy as
expressed in the Act 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 Act and will
be governed by the final adjudication of such issue.
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 City of Long Beach, and State of California, on the 7th day
of July, 1999.
<TABLE>
<S> <C> <C>
BOEING CAPITAL CORPORATION
By: /s/ THOMAS J. MOTHERWAY
-----------------------------------------
Thomas J. Motherway
PRESIDENT
</TABLE>
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas J. Motherway and Steven W. Vogeding, and
each of them, his true and lawful attorneys-in-fact and agents, with full power
of substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to the intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue thereof.
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Registration Statement has been signed by the following persons in the
capacities and on the date indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ DEBORAH C. HOPKINS
- ------------------------------ Director, Chairman of the July 7, 1999
Deborah C. Hopkins Board
/s/ THOMAS J. MOTHERWAY Director, President and
- ------------------------------ Principal Executive July 7, 1999
Thomas J. Motherway Officer
/s/ STEVEN W. VOGEDING Vice President and
- ------------------------------ Principal Financial July 7, 1999
Steven W. Vogeding Officer
/s/ DANIEL O. ANDERSON
- ------------------------------ Director and Vice July 7, 1999
Daniel O. Anderson President -- Operations
</TABLE>
II-4
<PAGE>
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- ------------------------------ -------------------------- -------------------
<C> <S> <C>
/s/ THEODORE J. COLLINS
- ------------------------------ Director July 3, 1999
Theodore J. Collins
/s/ MAURA R. MIZUGUCHI
- ------------------------------ Controller and Principal July 7, 1999
Maura R. Mizuguchi Accounting Officer
/s/ WALTER E. SKOWRONSKI
- ------------------------------ Director July 7, 1999
Walter E. Skowronski
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
- --------- -------------------------------------------------------------------------------------------------------
<S> <C>
1. Form of Distribution Agreement.
4(a). Form of Indenture between Boeing Capital Corporation and Bankers Trust Company providing for the
issuance of the Senior Notes.
4(b) Form of Indenture between Boeing Capital Corporation and Bankers Trust Company providing for the
issuance of the Subordinated Notes.
4(c). Form of Senior Fixed Rate Medium-Term Note.
4(d). Form of Subordinated Fixed Rate Medium-Term Note.
4(e). Form of Senior Floating Rate Medium Term Note.
4(f). Form of Subordinated Floating Rate Medium-Term Note.
5. Opinion of Sidley & Austin.
12. Computation of Ratio of Earnings to Fixed Charges.
23(a). Consent of Deloitte & Touche LLP.
23(b). Consent of Ernst & Young LLP.
23(c). Consent of Sidley & Austin (included in Exhibit 5).
24. Power of Attorney (included on page II-4).
25(a). Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Bankers Trust Company
with respect to the Senior Debt Securities.
25(b). Statement of Eligibility under the Trust Indenture Act of 1939 on Form T-1 of Bankers Trust Company
with respect to the Subordinated Debt Securities.
</TABLE>
<PAGE>
Exhibit 1
BOEING CAPITAL CORPORATION
(A DELAWARE CORPORATION)
SERIES XI MEDIUM-TERM NOTES
DUE 9 MONTHS OR MORE FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
_______, 1999
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower, World Financial Center
New York, New York 10281-1218
Chase Securities Inc.
270 Park Avenue
New York, New York 10017
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
PaineWebber Incorporated
1285 Avenue of the Americas
New York, New York 10019
Ladies/Gentlemen:
Boeing Capital Corporation, a Delaware corporation (the "Company"),
confirms its agreement with Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner &
Smith Incorporated, Chase Securities Inc., Morgan Stanley & Co. Incorporated and
PaineWebber Incorporated (each, an "Agent", and collectively, the "Agents") with
respect to the issue and sale by the Company of its Series XI Medium-Term Notes
Due 9 Months or More from Date of Issue (the "Notes"). The Notes will be either
an authorized series of the Company's senior unsecured debt securities (the
"Senior Securities") issued pursuant to an indenture dated as of ________, 1999,
(the "Senior Indenture"), between the Company and Bankers Trust Company, as
trustee
1
<PAGE>
("Bankers Trust" or the "Trustee"), or an authorized series of the Company's
subordinated unsecured debt securities (the "Subordinated Securities") to be
issued pursuant to an indenture, dated as of _______, 1999 (the "Subordinated
Indenture") between the Company and Bankers Trust, as successor trustee. The
Senior Securities and the Subordinated Securities are herein collectively
referred to as the "Securities" and the Senior Indenture and the Subordinated
Indenture are herein collectively referred to as the "Indentures". All
capitalized terms used herein, unless otherwise defined herein, shall have the
respective meanings ascribed to them in the Indentures.
As of the date hereof, the Company has authorized the issuance and
sale of up to U.S. $2,500,000,000 aggregate principal amount (or its
equivalent, based upon the applicable exchange rate at the time of issuance,
in such foreign currencies, units or composites of two or more thereof as the
Company shall designate at the time of issuance) of Notes to or through 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 to or through the Agents
pursuant to the terms of this Agreement, all as though the issuance of such
Notes were authorized as of the date hereof.
This Agreement provides both for the sale of Notes by the Company to
one or more Agents as principal for resale to investors (as may from time to
time be agreed to by the Company and the applicable Agent) and for the sale of
Notes by the Company directly to investors (as may from time to time be agreed
to by the Company and the applicable Agent), in which case such Agent will act
as an agent of the Company in soliciting purchases of the Notes.
The Company has filed with the Securities and Exchange Commission (the
"SEC") a registration statement on Form S-3 (No. 333-_______) for the
registration of debt securities, including the Notes, 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"). Such registration statement has been
declared effective by the SEC and the Indentures have been qualified under the
Trust Indenture Act of 1939, as amended (the "1939 Act"). Such registration
statement (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 or incorporated by reference as an exhibit) and
the prospectus constituting a part thereof, and any prospectus supplement and
pricing supplement 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 the 1933 Act or otherwise, are referred to herein 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, whether or not such revised
prospectus is 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.
2
<PAGE>
1. APPOINTMENT AS AGENT.
(a) APPOINTMENT. 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, the Company hereby agrees that Notes will be sold exclusively to
or through the Agents except as otherwise described below. The Company agrees
that, during the period the Agents are acting as the Company's agents hereunder,
unless otherwise agreed, the Company will not appoint other agents to act on its
behalf, or to assist it, in the placement of the Notes unless the Company has
entered into an agreement or agreements (which may incorporate by reference
certain provisions hereof and which shall incorporate and be subject to the
commission schedule set forth in Schedule A hereto with respect to any Notes
sold through such agent or agents, acting as an agent) with such agent or agents
and has notified the Agents promptly upon entering into any such agreement.
(b) SALE OF NOTES. The Company shall not sell or approve the
solicitation of purchases of Notes in excess of the amount which shall be
authorized by the Company from time to time or in excess of the aggregate
initial offering price of Notes registered pursuant to the Registration
Statement. The Agents shall have no responsibility for maintaining records with
respect to the aggregate initial offering price of Notes sold, or of otherwise
monitoring the availability of Notes for sale, under the Registration Statement.
(c) PURCHASES AS PRINCIPAL. The Agents shall not have any obligation to
purchase Notes from the Company as principal, but one or more Agents may agree
from time to time to purchase Notes as principal for resale to investors and
other purchasers determined by such Agent or Agents. Any such purchase of Notes
by an Agent as principal shall be made in accordance with Section 3(a) hereof.
(d) SOLICITATIONS AS AGENT. If agreed upon by an Agent and the Company,
such Agent, acting solely as agent for the Company and not as principal, will
solicit purchases of the Notes. Such Agent will communicate to the Company,
orally, each offer to purchase Notes solicited by it on an agency basis, other
than those offers rejected by such Agent. Such Agent shall have the right, in
its discretion reasonably exercised, to reject any proposed purchase of Notes,
as a whole or in part, and any such rejection shall not be deemed a breach of
its agreement contained herein. The Company may accept or reject any proposed
purchase of Notes, in whole or in part. Such Agent shall make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes has been solicited by it 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. If the Company shall default on its
obligation to deliver Notes to a purchaser whose offer it has accepted, the
Company shall (unless the Company's default arose out of a default, gross
negligence or willful misconduct on the part of the Agent) (i) hold such Agent
harmless against any loss, claim or damage arising from or as a result of such
default by the Company and (ii) notwithstanding such default, pay to such Agent
any commission to which it would otherwise be entitled.
3
<PAGE>
(e) RELIANCE. The Company and the Agents agree that any Notes purchased
by one or more Agents as principal shall be purchased, and any Notes the
placement of which an Agent arranges as agent shall be placed by such Agent, in
reliance on the representations, warranties, covenants and agreements of the
Company contained herein and on the terms and conditions and in the manner
provided herein.
2. REPRESENTATIONS AND WARRANTIES.
(a) The Company represents and warrants to the Agents as of the date
hereof, as of the date of each acceptance by the Company of an offer for the
purchase of Notes (whether to one or more Agents as principal or through an
Agent as agent), as of the date of each delivery of Notes (whether to one or
more Agents as principal or through an Agent as agent) (the date of each such
delivery to one or more Agents as principal being hereafter referred to as a
"Settlement Date"), and as of any time that 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 (each of the times
referenced above being referred to herein as a "Representation Date"), as
follows:
(i) REGISTRATION STATEMENT AND THE PROSPECTUS. 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 and the 1933 Act Regulations and the 1939
Act and the rules and regulations of the SEC promulgated thereunder
(the "1939 Act Regulations"). The Registration Statement, at the time
the Registration Statement became effective, did not, and as of the
applicable Representation Date will not, contain any 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 not
misleading. The Prospectus, at the time the Registration Statement
became effective did not, and as of the applicable Representation Date
will not, contain an untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the 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 in writing
to the Company by any of the Agents expressly for use in the
Registration Statement or Prospectus or to that part of the
Registration Statement which shall constitute the Statement of
Eligibility under the 1939 Act (Form T-1) of the Trustees under the
Indentures. After a post-effective amendment to the Registration
Statement is filed and has become effective under the 1933 Act, the
representations and warranties contained in this subsection shall refer
to the Registration Statement as so amended.
(ii) ACCOUNTANTS. To the best of the Company's knowledge,
the accountants who certified the financial statements and supporting
schedules included or incorporated by reference in the Registration
Statement and Prospectus are independent
4
<PAGE>
public accountants as required by the 1933 Act and the 1933 Act
Regulations.
(iii) FINANCIAL STATEMENTS. The consolidated financial
statements included or incorporated by reference in the Registration
Statement and Prospectus present fairly the consolidated financial
position of the Company and its consolidated subsidiaries as at the
dates indicated and the results of their operations for the periods
specified; said financial statements have been prepared in conformity
with generally accepted accounting principles applied on a consistent
basis during the periods involved, except as indicated therein; and any
supporting schedules included in the Registration Statement present
fairly the information required to be stated therein.
(iv) INCORPORATED DOCUMENTS. The documents incorporated
by reference in the Prospectus, at the time they were or hereafter are
filed with the SEC, complied and will comply in all material respects
with the requirements of the 1934 Act and the rules and regulations
thereunder (the "1934 Act Regulations"), and, when read together and
with the other information in the Prospectus, at the time the
Registration Statement became, and any amendments thereto become,
effective, did not and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in the light of
the circumstances under which they were or are made, not misleading.
(v) MATERIAL CHANGES OR MATERIAL TRANSACTIONS. Since the
respective dates as of which information is given in the Registration
Statement and the Prospectus, except as otherwise stated or
incorporated by reference therein or contemplated thereby, (A) there
has been no material adverse change in the financial condition,
earnings or cash flow of the Company and its subsidiaries considered as
one enterprise, or any development reasonably likely to have a material
adverse effect on the financial condition of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in
the ordinary course of business and (B) there has been no material
transaction entered into by the Company or any of its subsidiaries
other than those in the ordinary course of business.
(vi) DUE INCORPORATION AND QUALIFICATION. 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 corporate power
and authority to own, lease and operate its properties and to conduct
its business as described in the Registration Statement; and the
Company is duly qualified as a foreign corporation to transact business
and is in good standing in each jurisdiction in which the failure so to
qualify and be in good standing would materially and adversely affect
the financial condition of the Company.
(vii) SUBSIDIARIES. Each subsidiary corporation of the
Company which from time to time constitutes a "significant subsidiary"
as such term is defined in Rule 1-02 of Regulation S-X (each a
"Material Subsidiary" and together the "Material Subsidiaries") has
been duly incorporated and is validly existing as a corporation in good
5
<PAGE>
standing under the laws of the jurisdiction of its incorporation, has
corporate power and authority to own, lease and operate its properties
and to conduct its business as described in the Registration Statement
and is duly qualified as a foreign corporation to transact business and
is in good standing in each jurisdiction in which the failure so to
qualify and be in good standing would materially and adversely affect
the financial condition of the Company and its subsidiaries considered
as one enterprise; all of the issued and outstanding capital stock of
each such Material Subsidiary has been duly authorized and validly
issued and is fully paid and non-assessable; and, except as otherwise
disclosed in the Registration Statement or the Prospectus, the capital
stock of each such Material Subsidiary owned by the Company, directly
or through subsidiaries, is owned free and clear of any mortgage,
pledge, lien, encumbrance, claim or equity.
(viii) CAPITAL STOCK. The authorized, issued and
outstanding capital stock of the Company is as set forth in the
Company's Annual Report on Form 10-K for the fiscal year ended December
31, 1998 and incorporated by reference into the Registration Statement
and the Prospectus and the shares of issued and outstanding Common
Stock set forth thereunder have been duly authorized and validly issued
and are fully paid and non-assessable and are owned, of record and
beneficially, by the Holding Company.
(ix) NO DEFAULTS; REGULATORY APPROVALS; NO AUTHORIZATION,
APPROVAL OR CONSENT REQUIRED. Neither the Company nor any of its
Material Subsidiaries is in violation of its charter or in default in
the performance or observance of any material obligation, agreement,
covenant or condition contained in any material contract, indenture,
mortgage, loan agreement, note, lease or other material instrument to
which it is a party or by which it or any of them or their properties
may be bound; and the execution and delivery of this Agreement and the
Indentures and the consummation of the transactions contemplated herein
and therein have been duly authorized by all necessary corporate action
and will not conflict with or constitute a breach of, or 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
Material Subsidiaries pursuant to any material contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the
Company or any of its Material Subsidiaries is a party or by which it
or any of them may be bound or to which any of the property or assets
of the Company or any of its Material Subsidiaries is subject, nor will
such action result in any violation of the provisions of the charter or
by-laws of the Company or, to the best of its knowledge, any law,
administrative regulation or administrative or court decree; and no
consent, approval, authorization, order or decree of any court or
governmental authority or agency is required for the consummation by
the Company of the transactions contemplated by this Agreement, except
such as may be required under the 1933 Act, the 1939 Act, the 1933 Act
Regulations, the 1939 Act Regulations or state securities or Blue Sky
laws in connection with the purchase and distribution of the Notes.
(x) REGULATORY CERTIFICATES, AUTHORITIES AND PERMITS.
The Company and its Material Subsidiaries own or possess adequate
certificates, authorities or permits issued by the appropriate state,
6
<PAGE>
federal or foreign regulatory agencies or bodies necessary to conduct
the business now operated by them, and neither the Company nor any of
its Material Subsidiaries has received any notice of proceedings
relating to the revocation or modification of any such certificate,
authority or permit which, singly or in the aggregate, if the subject
of an unfavorable decision, ruling or finding, would materially
adversely affect the financial condition, earnings or cash flow of
the Company and its subsidiaries considered as one enterprise.
(xi) LEGAL PROCEEDINGS; CONTRACTS. Except as may be set
forth in the Prospectus or incorporated by reference therein, there is
no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge
of the Company, threatened against or affecting, the Company or any of
its subsidiaries which is required to be disclosed in the Prospectus
or which has more than a remote possibility of resulting in any
material adverse change in the financial condition, earnings or cash
flow of the Company and its subsidiaries considered as one enterprise,
or in any development reasonably likely to have a material adverse
effect on the financial condition of the Company and its subsidiaries,
considered as one enterprise, or which has more than a remote
possibility of materially and adversely affecting the material
properties or assets thereof or has more than a remote possibility of
materially and adversely affecting the consummation of the transactions
contemplated by the Indentures or this Agreement or the transactions
contemplated herein or therein; and there are no material contracts or
documents of the Company or any of its Material Subsidiaries which are
required to be filed as exhibits to the Registration Statement by the
1933 Act or by the 1933 Regulations which have not been so filed.
(xii) AUTHORIZATION AND VALIDITY OF THE NOTES. 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 Indentures 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 creditors' rights generally or by general
equity principles, and will be entitled to the benefits of the
Indentures, which will be substantially in the forms heretofore
delivered to the Agents; and the Notes and the Indentures conform in
all material respects to all statements relating thereto contained in
the Prospectus.
(xiii) NO LABOR DISPUTES. Other than as set forth in the
Prospectus, no labor dispute by the employees of the Company or any
Subsidiary exists or, to the knowledge of the Company, is imminent
which might be expected to have a material adverse effect upon the
financial condition, earnings or cash flow of the Company and its
subsidiaries, considered as one enterprise.
7
<PAGE>
(b) ADDITIONAL CERTIFICATIONS. Any certificate signed by any officer of
the Company and delivered to one or more Agents or to counsel for the Agents in
connection with an offering of Notes to one or more Agents as principal or
through an Agent as agent shall be deemed a representation and warranty by the
Company to such Agent or Agents as to the matters covered thereby on the date of
such certificate and at each Representation Date subsequent thereto (except that
where similar certificates have been given over time the most recent certificate
will supersede prior certificates).
3. PURCHASES AS PRINCIPAL; SOLICITATIONS AS AGENT.
(a) PURCHASES AS PRINCIPAL. Unless otherwise agreed by an Agent and the
Company, Notes shall be purchased by such Agent as principal. Such purchases
shall be made in accordance with terms agreed upon by one or more Agents and the
Company (which terms, unless otherwise agreed, shall, to the extent applicable,
include those terms specified in Exhibit A hereto and may be agreed upon orally,
with written confirmation prepared by such Agent or Agents and sent by
telecopier to the Company). An Agent's commitment to purchase Notes as principal
shall be deemed to have been made on the basis of the representations and
warranties of the Company herein contained and shall be subject to the terms and
conditions herein set forth. Unless the context otherwise requires, references
herein to "this Agreement" shall include the agreement of one or more Agents to
purchase Notes from the Company as principal. Each purchase of Notes, unless
otherwise agreed, shall be at a discount from the principal amount of each such
Note equivalent to the applicable commission set forth in Schedule A hereto. The
Agents may engage the services of any other broker or dealer in connection with
the resale of the Notes purchased by them as principal and may allow any portion
of the discount received in connection with such purchases from the Company to
such brokers and dealers. At the time of each purchase of Notes by one or more
Agents as principal, the Company and such Agent or Agents shall agree and
specify orally, confirmed in writing, whether any stand-off provision (as
referred to in Section 4(l) hereof) or any officers' certificate, opinion of
counsel or comfort letter (such as those referred to in Sections 7(b), 7(c) and
7(d) hereof) will be required.
(b) SOLICITATIONS AS AGENT. On the basis of the representations and
warranties herein contained, but subject to the terms and conditions herein set
forth, when agreed by the Company and an Agent, such Agent, as an agent of the
Company, will use its reasonable best efforts to solicit offers to purchase the
Notes upon the terms and conditions set forth herein and in the Prospectus. The
Agents are not authorized to appoint sub-agents with respect to Notes sold
through them as agent. 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.
The Company reserves the right, in its sole discretion, to suspend
solicitation of purchases of the Notes through an Agent, as agent, commencing at
any time for any period of time or permanently. As soon as practicable after
receipt of instructions from the Company, such Agent will suspend solicitation
of purchases from the Company until such time as the Company has advised such
Agent that such solicitation may be resumed.
8
<PAGE>
Upon settlement, the Company agrees to pay each Agent a commission, in
the form of a discount, equal to the applicable percentage of the principal
amount of each Note sold by the Company as a result of a solicitation made by
such Agent as set forth in Schedule A hereto.
(c) ADMINISTRATIVE PROCEDURES. The purchase price, interest rate or
formula, maturity date and other terms of the Notes (as applicable) specified in
Exhibit A hereto shall be agreed upon by the Company and the applicable Agent or
Agents and specified in a pricing supplement to the Prospectus (each, a "Pricing
Supplement") to be prepared in connection with each sale of Notes. Except as may
be otherwise specified in the applicable Pricing Supplement, the Notes will be
issued in denominations of U.S. $100,000 or any larger amount that is an
integral multiple of U.S. $1,000. Administrative procedures with respect to the
sale of Notes shall be agreed upon from time to time by the Company, the Agents
and the Trustee (the "Procedures"). The Agents and the Company agree to perform,
and the Company agrees to cause the Trustee to agree to perform, their
respective duties and obligations specifically provided to be performed by them
in the Procedures.
4. COVENANTS OF THE COMPANY.
The Company covenants with the Agents as follows:
(a) REVISIONS OF PROSPECTUS -- MATERIAL CHANGES. If at any time when
the Prospectus is required by the 1933 Act to be delivered in connection with
sales of the Notes any event shall occur or condition exist as a result of which
it is necessary, 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 it is
delivered to a purchaser, or if it shall be necessary, in the reasonable opinion
of either such counsel, at any such time to amend or supplement the Registration
Statement or the Prospectus in order to comply with the requirements of the 1933
Act or the 1933 Act Regulations, immediate notice shall be given, and confirmed
in writing, to the Agents to cease the solicitation of offers to purchase the
Notes in their capacity as agents of the Company and to cease sales of any Notes
the Agents may then own as principal, 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.
(b) PROSPECTUS REVISIONS -- PERIODIC FINANCIAL INFORMATION. On or prior
to the date on which 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 furnish such
information to counsel for the Agents, confirmed in writing, and shall cause the
Prospectus to be amended or supplemented to include or incorporate by reference
capsule financial information
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with respect to the results of operations of the Company for the period between
the end of the preceding fiscal year and the end of such quarter or for such
fiscal year, as the case may be, and corresponding information for the
comparable period of the preceding fiscal year, as well as such other
information and explanations as shall be necessary for an understanding of such
amounts or as shall be required by the 1933 Act or the 1933 Act Regulations.
(c) PROSPECTUS REVISIONS -- AUDITED FINANCIAL INFORMATION. On or prior
to the date on which 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 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.
(d) 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 Rule
158 under the 1933 Act) of the Registration Statement.
(e) NOTICE OF CERTAIN PROPOSED FILINGS. The Company will give counsel
to the Agents notice of its intention to file any amendment to the Registration
Statement or any amendment or supplement to the Prospectus, whether by the
filing of documents pursuant to the 1934 Act, the 1933 Act or otherwise, and
will furnish counsel to the Agents with copies of any such amendment or
supplement or other documents proposed to be filed a reasonable time in advance
of such proposed filing, other than such amendments or supplements providing
solely for a change in the interest rates or redemption dates of the Notes or a
change in the principal amount of the Notes remaining to be sold or other
similar changes.
(f) NOTICE OF CERTAIN EVENTS. The Company will notify the Agents or
their counsel immediately (i) of the effectiveness of any amendment to the
Registration Statement, (ii) of the transmittal to the SEC for filing of any
supplement to the Prospectus (other than pricing supplements, except as set
forth in the Administrative Procedures) or any document to be filed pursuant to
the 1934 Act which will be incorporated by reference in the Prospectus, (iii) of
the receipt of any comments from the SEC with respect to the Registration
Statement or the Prospectus, (iv) of 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 (v) of 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 as soon as practicable.
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(g) COPIES OF THE REGISTRATION STATEMENT AND THE PROSPECTUS. The
Company will deliver to the Agents as many signed and conformed copies of the
registration statement (as originally filed) and of each amendment thereto
(including exhibits filed therewith or incorporated by reference therein and
documents incorporated by reference in the Prospectus) as the Agents may
reasonably request. The Company will furnish to the Agents as many copies of the
Prospectus (as amended or supplemented) as the Agents shall reasonably request
so long as the Agents are required to deliver a Prospectus in connection with
sales or solicitations of offers to purchase the Notes.
(h) COPIES OF FINANCIAL REPORTS. The Company will furnish to the
Agents, at the earliest time the Company makes the same available to others,
copies of its annual reports and other financial reports furnished or made
available to the public generally.
(i) 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 reasonably 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, that the Company has knowledge of, as may be required by
the laws of each jurisdiction in which the Notes have been qualified as above
provided.
(j) 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 Section 13(a),
13(c), 14 or 15(d) of the 1934 Act.
(k) SUSPENSION OF CERTAIN OBLIGATIONS. The Company shall not be
required to comply with the provisions of subsections (a), (b) or (c) of this
Section during any period from the time (i) the Agents shall have suspended
solicitation of purchases of the Notes in their capacity as agent pursuant to
a request from the Company and (ii) no Agent shall then hold any Notes
purchased as principal pursuant hereto, until the time the Company shall
determine that solicitation of purchases of the Notes should be resumed or an
Agent shall subsequently purchase Notes from the Company as principal.
(l) STAND-OFF AGREEMENT. If requested by an Agent in connection with a
purchase by it of Notes as principal in accordance with Section 3(a) hereof,
such transaction shall be subject to the terms of such stand-off provision as
shall be agreed by the Company and the applicable Agent at the time of such
agreement to purchase Notes as principal.
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5. CONDITIONS OF OBLIGATIONS.
The obligations of the Agents to purchase Notes as principal and to
solicit offers to purchase the Notes as agent of the Company, and the
obligations of any purchasers of the Notes sold through an Agent as agent, 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 reasonably satisfactory to the Agents and their counsel:
(i) OPINION OF COMPANY COUNSEL. The opinion of Sidley &
Austin, special counsel to the Company, Michael C. Draffin,
Associate General Counsel of the Company, H. David Heumann, Assistant
General Counsel of the Company, Melinda A. Johnson, Counsel of the
Company, or other counsel reasonably satisfactory to the Agents,
in form and substance reasonably satisfactory to the parties.
In rendering such opinion, such counsel may rely (x) as to the
matters of New York law and as to the matters relating to the 1939 Act
upon the opinion referred to in Section 5(a)(ii) without independent
verification, (y) as to the matters involving the application of laws
of any jurisdiction other than the States of California, Delaware and
New York or the United States, to the extent such counsel deems proper
and specified in such opinion, upon the opinion of other counsel of
good standing whom such counsel believes to be reliable and who are
reasonably satisfactory to counsel to the Agents, and (z) as to matters
of fact, to the extent such counsel deems proper, on certificates of
responsible officers of the Company and public officials.
(ii) The opinion of Brown & Wood LLP, counsel to the
Agents, with respect to the validity of the Indentures, the Notes, the
Registration Statement, the Prospectus and other related matters as the
Agents shall reasonably request.
(iii) In giving their opinions required by subsection
(a)(i) and (a)(ii), respectively, of this Section 5(a), Sidley & Austin
and Brown & Wood LLP shall each additionally state (with appropriate
qualifications) that nothing has come to their attention that would
lead them to believe that the Registration Statement, at the time it
became effective (or, if an amendment to the Registration Statement or
an Annual Report on Form 10-K has been filed by the Company with the
SEC subsequent to the effectiveness of the Registration Statement, then
at the time such amendment became effective or at the time of the most
recent such filing, as the case may be) or at the date hereof,
contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact required to be stated therein or
necessary in order to make the statements therein not misleading or
that the Prospectus, at the date hereof (or, if such opinion is being
delivered in connection with the purchase of Notes from the Company by
one or more
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Agents as principal pursuant to Section 7(c) hereof, at the date of any
agreement by such Agent or Agents to purchase Notes as principal and at
the Settlement Date with respect thereto, as the case may be) (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 there shall not have
been, since the respective dates as of which information is given in the
Registration Statement and the Prospectus, any material adverse change in the
financial condition, earnings or cash flow, of the Company and its subsidiaries
considered as one enterprise, or any development reasonably likely to have a
material adverse effect on the financial condition of the Company and its
subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, and the Agents shall have received a certificate of
the President, any Vice President or the Treasurer or Assistant Treasurer of the
Company, dated as of the date hereof, to the effect (i) that there has been no
such material adverse change, (ii) that the other representations and warranties
of the Company contained in Section 2 are true and correct with the same force
and effect as though expressly made at and as of the date of such certificate,
(iii) that the Company has complied with all material agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to the date
of such certificate, (iv) that there are no legal or governmental proceedings
pending or, to the best of such officer's knowledge, threatened, which are
required to be disclosed in the Registration Statement other than those
disclosed therein, and (v) that 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.
(c) COMFORT LETTER. At the date hereof or such other date as may be
acceptable to the Agents, the Agents shall have received from Deloitte & Touche
or other accountants reasonably satisfactory to the Agents and their counsel, a
letter, dated as of the date hereof or such Settlement Date, 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, and no information concerning their
relationship with or interest in the Company is required by Item 10 of
the Registration Statement.
(ii) In their opinion, the financial statements and
supporting schedules examined by them and included or incorporated by
reference in the Registration Statement and Prospectus and audited by
them and covered by their opinions therein 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
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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 or incorporated by
reference 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 or incorporated by reference 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 or incorporated by reference
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
shareholder's equity or any increase in the 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 amounts shown on the most recent consolidated balance
sheet of the Company and its subsidiaries included or incorporated by
reference in the Registration Statement and Prospectus or, during the
period from the date of such balance sheet to a specified date not more
than three days prior to the date of such letter, there were any
decreases, as compared with the corresponding period in the preceding
year, in consolidated operating income, net income or net income per
share of the Company and its subsidiaries, except in each such case as
set forth in or contemplated by the Registration Statement and
Prospectus or except for such exceptions enumerated in such letter as
shall have been agreed to by the Agents and the Company.
(iv) In addition to the examination referred to in their
report included in the Registration Statement and the Prospectus and
the limited procedures referred to in clause (3) 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 in the Registration Statement and the
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,
counsel to the Agents shall have been furnished with such other documents and
opinions as such counsel may reasonably require (it being acknowledged that the
opinion of counsel being delivered pursuant to Section 5(a)(i) above is
reasonable in light of the circumstances at the date hereof) 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
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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.
The obligations of the Agents to purchase Notes will be subject to
the following further conditions: (i) the rating assigned by any nationally
recognized securities rating agency to any debt securities of the Company as
of the date of the agreement to purchase Notes shall not have been lowered
and no such rating agency shall have publicly announced that it has under
surveillance or review, with possible negative implications, its ratings of
any debt securities of the Company since that date and (ii) there shall not
have come to the attention of the Agent any facts that would cause such Agent
to believe that the Prospectus, at the time it was required to be delivered
to a purchaser of the Notes, contained 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 such time, not misleading.
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated
by the applicable Agent or Agents 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(d) hereof, the indemnity and contribution agreements set forth in
Sections 8 and 9 hereof, the provisions concerning payment of expenses under
Section 10 hereof, the provisions concerning the representations, warranties and
agreements to survive delivery of Section 11 hereof, the provisions relating to
governing law and forum set forth in Section 14 and the provisions relating to
parties set forth in Section 15 hereof shall remain in effect.
6. DELIVERY OF AND PAYMENT FOR NOTES SOLD THROUGH AN AGENT.
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, such Agent shall promptly notify the Company and deliver
such 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 unless the
failure arose from the gross negligence or willful misconduct of such Agent or
from the default by such Agent in the performance of its obligations hereunder.
If such failure occurred for any reason other than the gross negligence or
willful misconduct of such Agent or from the default by such 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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7. ADDITIONAL COVENANTS OF THE COMPANY.
The Company covenants and agrees with the Agents that:
(a) REAFFIRMATION OF REPRESENTATIONS AND WARRANTIES. Each acceptance by
the Company of an offer for the purchase of Notes (whether to one or more Agents
as principal or through an Agent as agent), and each delivery of Notes (whether
to one or more Agents as principal or through an Agent as agent), shall be
deemed to be an affirmation that the representations and warranties of the
Company contained in this Agreement and in the most recent certificate (for each
type of 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 such Agent or Agents or to the purchaser or its
agent, as the case may be, 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 there is filed
with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form 10-K
incorporated by reference into the Prospectus, and otherwise only (i) as may be
required in connection with a sale pursuant to Section 3(a) or (ii) at such
times as may be reasonably requested by the Agents in the event of a material
change in circumstances in respect of the Company, the Company shall furnish or
cause to be furnished to the Agent(s) forthwith a certificate dated the date of
filing with the SEC of such document, the date requested by the Agents or the
date of such sale, as the case may be, in form reasonably satisfactory to the
Agent(s) 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 filing, 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 substantially similar to the certificate
referred to in Section 5(b) hereof, modified as necessary to relate to the
Registration Statement and the Prospectus as amended and supplemented to the
time of delivery of such certificate.
(c) SUBSEQUENT DELIVERY OF LEGAL OPINIONS. Each time that there is
filed with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form
10-K incorporated by reference into the Prospectus, and otherwise only (i) as
may be required in connection with a sale pursuant to Section 3(a) or (ii) at
such times as may be reasonably requested by the Agents in the event of a
material change in circumstances in respect of the Company, the Company shall
furnish or cause to be furnished forthwith, and in any case promptly upon
request, to the Agent(s) and to counsel to the Agents the written opinion of
in-house counsel to the Company, or other counsel satisfactory to the Agent(s),
dated the date of filing with the SEC of such document, the date requested by
the Agent(s) or the date of such sale, as the case may be, in form and substance
reasonably satisfactory to the Agent(s), including such reductions or
limitations as shall be reasonably satisfactory to the Agent(s), but modified,
as necessary, to
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relate to the Registration Statement and the Prospectus as amended and
supplemented to the time of delivery of such opinion or, in lieu of such
opinion, counsel last furnishing such opinion to the Agents may furnish the
Agent(s) with a letter substantially to the effect that the Agent(s) may rely on
such last opinion to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last opinion shall
be deemed to relate to the Registration Statement and the Prospectus as amended
and supplemented to the time of delivery of such letter authorizing reliance).
(d) SUBSEQUENT DELIVERY OF COMFORT LETTERS. Each time that there is
filed with the SEC any Quarterly Report on Form 10-Q or Annual Report on Form
10-K incorporated by reference into the Prospectus, and otherwise only (i) as
may be required in connection with a sale pursuant to Section 3(a) or (ii) at
such times as may be reasonably requested by the Agents in the event of a
material change in circumstances in respect of the Company, the Company shall
cause Deloitte & Touche, or other accountants reasonably satisfactory to the
Agents, forthwith to furnish such Agent a letter, dated the date of the filing
of such document with the SEC, the date of such request or the date of such
sale, as the case may be in form reasonably satisfactory to the Agent(s),
substantially similar to the portions of the letter referred to in clauses (1)
and (2) 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 substantially similar to the portions of the letter referred to in clauses
(3) and (4) 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.
8. INDEMNIFICATION.
(a) INDEMNIFICATION OF THE AGENT(S). The Company agrees to indemnify
and hold harmless each Agent and each person, if any, who controls such 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, as incurred, arising out of any untrue
statement or alleged untrue statement of a material fact contained in
the Registration Statement (or any amendment thereto), or the omission
or alleged omission therefrom of a material fact required to be stated
therein or necessary to make the statements therein not misleading or
arising out of any untrue statement or alleged untrue statement of a
material fact contained in the Prospectus (or any amendment or
supplement thereto) or the omission or alleged omission therefrom of a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading,
unless such untrue statement or omission or such alleged untrue
statement or omission was made in reliance upon and in conformity with
written information furnished to the Company by the Agents expressly
for use in the Registration Statement (or any amendment thereto) or the
Prospectus (or any amendment or supplement thereto);
(ii) against any and all loss, liability, claim, damage
and expense
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whatsoever, as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or 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 (except as made in reliance
upon and in conformity with information furnished by the Agents as
aforesaid), if such settlement is effected with the written consent of
the Company; and
(iii) against any and all expense whatsoever, as incurred
(including the fees and disbursements of counsel chosen by such Agent
and reasonably satisfactory to the Company), reasonably incurred in
investigating, preparing or defending against any litigation, or
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 (except as made in reliance upon and in conformity with
information furnished by the Agents as aforesaid), to the extent that
any such expense is not paid under (i) or (ii) above.
(b) INDEMNIFICATION OF COMPANY. Each Agent agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act against any and all loss, liability,
claim, damage and expense described in the indemnity contained in subsection (a)
of this Section, but only with respect to untrue statements or omissions, or
alleged untrue statements or omissions, made in the Registration Statement (or
any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with information furnished to the
Company by such Agent.
(c) GENERAL. Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve such indemnifying party from any liability which it may
have otherwise than on account of this indemnity agreement. An indemnifying
party may participate at its own expense in the defense of such action. In no
event shall the indemnifying parties be liable for the fees and expenses of more
than one counsel for all indemnified parties 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.
9. CONTRIBUTION.
If the indemnification provided for in Section 8 hereof is unavailable
to the Company, on the one hand, or the Agents, on the other, as an indemnified
party in relation to each other under paragraph 8(a) or 8(b) thereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each such indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities in
such proportion as is appropriate to reflect the relative fault of the Company
on the one hand and the applicable Agents on the other. The
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relative fault of the Company on the one hand and the Agents on the other shall
be determined by references to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information supplied by the Company or the
Agents and the party's relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and the Agents agree that it would not be just and
equitable if contribution pursuant to Section 8 were determined by pro rata
allocation or by any other method of allocation other than the allocation
specified in the immediately preceding paragraph. The amount paid or payable by
any indemnified party as a result of the losses, claims, damages and liabilities
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, 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, no Agent shall be required to contribute any amount in excess of the
amount by which the total price at which the Notes offered and sold to the
public through such Agent exceeds the amount of any damages which such Agent has
otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The remedies provided for in this Section are not exclusive
and shall not limit any rights or remedies which may otherwise be available to
any such indemnified party at law or in equity.
10. PAYMENT OF EXPENSES.
The Company will pay the following expenses incident to the performance
of its obligations under this Agreement:
(a) The preparation and filing of the Registration Statement and all
amendments thereto;
(b) The preparation, printing, issuance and delivery of the Notes;
(c) The fees and disbursements of the Company's accountants and of the
Trustee;
(d) The qualification of the Notes under state securities laws in
accordance with the provisions of Section 4(e) 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;
(e) The printing and delivery to the Agents in quantities as
hereinabove stated of copies of the Registration Statement and all amendments
thereto, and of the Prospectus and any amendments or supplements thereto;
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(f) The printing and delivery to the Agents of copies of the Indentures
and all supplements and amendments thereto;
(g) Any fees charged by rating agencies for the rating of the Notes;
(h) The fees and expenses, if any, incurred with respect to any filing
with the National Association of Securities Dealers, Inc.; and
(i) The reasonable fees and disbursements of counsel to the Agents.
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 shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Agents 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.
12. TERMINATION.
(a) TERMINATION OF THIS AGREEMENT. This Agreement (excluding any
agreement hereunder by one or more Agents to purchase Notes as principal) may be
terminated for any reason, at any time by either the Company, as to one or more
of the Agents, or an Agent, as to itself, upon the giving of 7 days' written
notice of such termination to the other parties hereto.
(b) TERMINATION OF AGREEMENT TO PURCHASE NOTES AS PRINCIPAL. The
applicable Agent or Agents may terminate any agreement hereunder by such Agent
or Agents to purchase Notes as principal, 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 agreement or since the respective dates as of
which information is given in the Registration Statement, any material adverse
change in the financial condition, earnings or cash flow of the Company and its
subsidiaries, considered as one enterprise, or any development reasonably likely
to have a material adverse effect on the financial condition of the Company and
its subsidiaries, considered as one enterprise, whether or not arising in the
ordinary course of business, or (ii) if there has occurred any outbreak or
significant escalation of hostilities or other calamity or crisis the effect of
which on the financial markets of the United States is such as to make it, in
the reasonable judgment of such Agent or Agents, 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 has been suspended, or minimum or maximum prices for
trading have been fixed, or maximum ranges for prices for securities have been
required, by either of said exchanges or by order of the SEC or any other
governmental authority, or if a banking moratorium has been declared by either
Federal or New York authorities, or if a banking moratorium has been declared by
the relevant authorities in the country or countries of origin of any foreign
20
<PAGE>
currency or currencies in which such Notes are denominated 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 such agreement shall have
been lowered since that date or if any such rating agency shall have publicly
announced that it has under surveillance or review, with possible negative
implications, its ratings of any debt securities of the Company since that date,
or (v) if there shall have come to the attention of such Agent or Agents any
facts that would cause them 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. As used in this Section 12(b), the term
"Prospectus" means the Prospectus in the form first provided to the applicable
Agent or Agents for use in confirming sales of the related Notes.
(c) GENERAL. In the event of any such termination, neither party
will have any liability to the other party hereto, except that (i) in the
case of termination pursuant to Section 12(a), the Agents shall be entitled
to any commission earned in accordance with the third paragraph of Section
3(b) hereof, (ii) if at the time of termination (A) any Agent shall own any
Notes purchased by it as principal 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(d) hereof,
the provisions of Section 10 hereof, the indemnity agreement set forth in
Section 8 hereof and the contribution agreement set forth in Section 9
hereof, and the provisions of Sections 11, 14 and 15 hereof shall remain in
effect.
13. NOTICES.
Unless otherwise provided herein, all notices required under the terms
and provisions hereof shall be in writing, either delivered by hand, by 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:
Boeing Capital Corporation
4060 Lakewood Boulevard, 6th Floor
Long Beach, California 90808-1700
Attention: Treasury Department
Telecopy No.: (562) 627-3284
If to the Agents:
If to Chase:
Chase Securities Inc.
21
<PAGE>
270 Park Avenue, 8th Floor
New York, New York 10017
Attention: Medium-Term Note Desk
Telecopy No. (212) 834-6081
If to Merrill Lynch:
Merrill Lynch & Co.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
North Tower - 10th Floor
World Financial Center
New York, New York 10281-1310
Attention: MTN Product Management
Telecopy No.: (212) 449-2234
If to Morgan Stanley & Co. Incorporated:
1585 Broadway, 2nd Floor
New York, NY 10036
Attention: Manager, Continuously Offered Products
Telecopy No.: 212-761-0780
with a copy to it at:
1585 Broadway, 29th Floor
New York, NY 10036
Attention: Peter Cooper, Investment Banking Information Center
Telecopy No.: 212-761-0260
If to PaineWebber:
PaineWebber Incorporated
1285 Avenue of the Americas, 11th Floor
New York, New York 10019
Attention: Ted Hamilton
Telecopy No. (212) 713-2233
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.
14. GOVERNING LAW.
22
<PAGE>
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 the Agents 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 or Los Angeles County, State of California.
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
Section 8 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.
16. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and, if
executed in more than one counterpart, the executed counterparts hereof shall
constitute a single instrument.
23
<PAGE>
If the foregoing is in accordance with the Agents' 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,
BOEING CAPITAL CORPORATION
By: ______________________________
Name:
Title:
Confirmed, Agreed and Accepted, as of the date first above written:
MERRILL LYNCH & CO.
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
By: _______________________
CHASE SECURITIES INC.
By: _______________________
MORGAN STANLEY & CO. INCORPORATED
By: _______________________
PAINEWEBBER INCORPORATED
By: _______________________
24
<PAGE>
SCHEDULE A
As compensation for the services of the Agents hereunder, the Company
shall pay the applicable Agent, on a discount basis, a maximum commission for
the sale of each Note equal to the principal amount of such Note multiplied by
the appropriate percentage set forth below:
<TABLE>
<CAPTION>
PERCENT OF
MATURITY RANGES PRINCIPAL AMOUNT
- --------------- ----------------
<S> <C>
From 9 months to 1 year..................................................... .125%
From 1 year to less than 18 months.......................................... .150
From 18 months to less than 2 years......................................... .200
From 2 years to less than 3 years........................................... .250
From 3 years to less than 4 years........................................... .325
From 4 years to less than 5 years........................................... .450
From 5 years to less than 6 years........................................... .500
From 6 years to less than 7 years........................................... .550
From 7 years to less than 10 years.......................................... .600
From 10 years to less than 15 years......................................... .625
From 15 years to less than 20 years......................................... .700
From 20 years to less than 30 years......................................... .750
More than 30 years.......................................................... *
</TABLE>
- ---------------------------
* As agreed to by the Company and the applicable Agent at the time of
sale.
25
<PAGE>
EXHIBIT A
The following terms, if applicable, shall be agreed to by one or more
Agents and the Company in connection with each sale of Notes:
Principal Amount: $_______
(or principal amount of foreign currency or composite
currency)
Interest Rate:
Interest Payment Dates:
If Floating Rate Note:
Interest Rate Basis(es):
If LIBOR,
/ / LIBOR Reuters Page:
/ / LIBOR Telerate Page:
Designated LIBOR Currency:
IF CMT Rate,
Designated CMT Telerate Page:
If Telerate Page 7052:
/ / Weekly Average
/ / Monthly Average
Designated CMT Maturity Index:
Index Maturity:
Spread and/or Spread Multiplier, if any:
Initial Interest Rate, if any:
Initial Interest Reset Date:
Interest Reset Dates:
Interest Payment Dates:
Maximum Interest Rate, if any:
Minimum Interest Rate, if any:
Fixed Rate Commencement Date, if any:
Fixed Interest Rate, if any:
Day Count Convention:
Calculation Agent:
Redemption Provisions:
Initial Redemption Date:
Initial Redemption Percentage:
Annual Redemption Percentage Reduction, if any:
Repayment Provisions:
Optional Repayment Date(s):
Original Issue Date:
Stated Maturity Date:
Specified Currency:
Exchange Rate Agent:
Authorized Denomination:
Purchase Price: ___%, plus accrued interest, if any, from ____________
Price to Public: ___%, plus accrued interest, if any, from ___________
Issue Price:
A - 1
<PAGE>
Settlement Date and Time:
Additional/Other Terms:
A - 2
<PAGE>
Exhibit 4(a)
BOEING CAPITAL CORPORATION
TO
BANKERS TRUST COMPANY
TRUSTEE
INDENTURE
DATED AS OF ______________, 1999
PROVIDING FOR THE ISSUANCE OF DEBT SECURITIES
<PAGE>
BOEING CAPITAL CORPORATION
AND
BANKERS TRUST COMPANY,
TRUSTEE
INDENTURE
Dated as of ___________________, 1999
-------------------
Reference is made to the following provisions of the Trust
Indenture Act of 1939, as amended, which establish certain duties and
responsibilities of the Issuer and the Trustee which are not set forth in this
Indenture:
<TABLE>
<CAPTION>
Section Subject Section Subject
- ------- ------- ------- -------
<S> <C> <C> <C>
310 (b) Disqualification of Trustee for 315 (c) Duties of claims Trustee in case of
conflicting Securityholders default
311 Preferential collection of Trustee as 315 (d) Provisions relating to responsibility
creditor of Issuer of Trustee
312 (a) Periodic filing of information by 315 (e) Assessment of costs against litigating
Issuer with Trustee Securityholders in certain
circumstances
312 (b) Access of Securityholders to 316 (a) Directions to and waivers by
information Securityholders in certain
circumstances
313 (b) Additional reports of Trustee to 316 (b) Prohibition or impairment of right of
Securityholders Securityholders to payment
314 (c) Evidence of compliance with 316 (c) Right of Issuer to set record date for
conditions precedent certain purposes
315 (a) Duties of Trustee prior to default 317 (a) Special powers of Trustee
315 (b) Notice of default from Trustee to 318 (a) Provisions of Act to control in case
Securityholders of conflict
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
PARTIES........................................................................................
RECITALS OF THE COMPANY .......................................................................
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act .....................................................................
Additional Amounts ......................................................
Affiliate; control ......................................................
Authenticating Agent ....................................................
Authorized Newspaper ....................................................
Bearer Security .........................................................
Board of Directors ......................................................
Board Resolution ........................................................
Business Day ............................................................
Capital Stock ...........................................................
Commission ..............................................................
Company .................................................................
Company Request; Company Order ..........................................
Consolidated Assets .....................................................
Consolidated Liabilities ................................................
Corporate Trust Office ..................................................
corporation .............................................................
coupon ..................................................................
Debt ....................................................................
Defaulted Interest ......................................................
Dollar ..................................................................
Event of Default ........................................................
Guarantees ..............................................................
Holder ..................................................................
Indenture ...............................................................
interest ................................................................
Interest Payment Date ...................................................
Lien ....................................................................
Maturity ................................................................
</TABLE>
- ------------
NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Officers' Certificate ...................................................
Opinion of Counsel ......................................................
Original Issue Discount Security ........................................
Outstanding .............................................................
Paying Agent ............................................................
Person ..................................................................
Place of Payment ........................................................
Predecessor Security ....................................................
Property ................................................................
Redemption Date .........................................................
Redemption Price ........................................................
Registered Security .....................................................
Regular Record Date .....................................................
Responsible Officer .....................................................
Securities ..............................................................
Security Register; Security Registrar; Co-Security
Registrar ............................................................
Special Record Date .....................................................
Stated Maturity .........................................................
Subsidiary ..............................................................
Trustee .................................................................
Trust Indenture Act .....................................................
United States ...........................................................
United States Alien .....................................................
United States Government Obligations ....................................
Vice President ..........................................................
SECTION 102. Compliance Certificates and Opinions ....................................
SECTION 103. Form of Documents Delivered to Trustee ..................................
SECTION 104. Acts of Holders .........................................................
SECTION 105. Notices, Etc., to Trustee and Company ...................................
SECTION 106. Notice to Holders of Securities; Waiver .................................
SECTION 107. Language of Notices, Etc. ...............................................
SECTION 108. Conflict with Trust Indenture Act .......................................
SECTION 109. Effect of Headings and Table of Contents ................................
SECTION 110. Successors and Assigns ..................................................
SECTION 111. Separability Clause .....................................................
SECTION 112. Benefits of Indenture ...................................................
SECTION 113. Governing Law ...........................................................
SECTION 114. Legal Holidays ..........................................................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 115. Appointment of Agent for Service ........................................
SECTION 116. Certain Matters Relating to Currencies ..................................
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally .........................................................
SECTION 202. Form of Trustee's Certificate of Authentication .........................
SECTION 203. Securities in Global Form ...............................................
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited: Issuable in Series ....................................
SECTION 302. Denominations ...........................................................
SECTION 303. Execution, Authentication, Delivery and Dating ..........................
SECTION 304. Temporary Securities and Exchange of Securities .........................
SECTION 305. Registration, Registration of Transfer and Exchange .....................
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities ........................
SECTION 307. Payment of Interest; Interest Rights Preserved ..........................
SECTION 308. Persons Deemed Owners ...................................................
SECTION 309. Cancellation ............................................................
SECTION 310. Computation of Interest .................................................
SECTION 311. Form of Certification By a Person Entitled to
Receive a Bearer Security .......................................
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture .................................
SECTION 402. Application of Trust Money ..............................................
SECTION 403. Satisfaction, Discharge and Defeasance of
Securities of any Series ........................................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default .......................................................
SECTION 502. Acceleration of Maturity; Rescission and
Annulment .......................................................
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ..........................................
SECTION 504. Intentionally Omitted ...................................................
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons ........................................
SECTION 506. Application of Money Collected ..........................................
SECTION 507. Limitation on Suits .....................................................
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest .................................
SECTION 509. Restoration of Rights and Remedies ......................................
SECTION 510. Rights and Remedies Cumulative ..........................................
SECTION 511. Delay or Omission Not Waiver ............................................
SECTION 512. Control by Holders of Securities ........................................
SECTION 513. Waiver of Past Defaults .................................................
SECTION 514. Intentionally Omitted ...................................................
SECTION 515. Waiver of Stay or Extension Laws ........................................
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities .....................................
SECTION 602. Notice of Defaults ......................................................
SECTION 603. Certain Rights of Trustee ...............................................
SECTION 604. Not Responsible for Recitals or Issuance of
Securities ......................................................
SECTION 605. May Hold Securities .....................................................
SECTION 606. Money Held in Trust .....................................................
SECTION 607. Compensation and Reimbursement ..........................................
SECTION 608. Intentionally Omitted ...................................................
SECTION 609. Corporate Trustee Required; Eligibility .................................
SECTION 610. Resignation and Removal; Appointment of
Successor .......................................................
SECTION 611. Acceptance of Appointment by Successor ..................................
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business ........................................................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 613. Intentionally Omitted ...................................................
SECTION 614. Appointment of Authenticating Agent .....................................
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders ......................................................
SECTION 702. Preservation of Information; Communications to
Holders .........................................................
SECTION 703. Reports by Trustee ......................................................
SECTION 704. Reports by Company ......................................................
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms ...........................................................
SECTION 802. Successor Corporation Substituted .......................................
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders .........................................................
SECTION 902. Supplemental Indentures with Consent of Holders .........................
SECTION 903. Execution of Supplemental Indentures ....................................
SECTION 904. Effect of Supplemental Indentures .......................................
SECTION 905. Conformity with Trust Indenture Act .....................................
SECTION 906. Reference in Securities to Supplemental Indentures ......................
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest ..............................
SECTION 1002. Maintenance of Office or Agency .........................................
SECTION 1003. Money for Securities Payments to Be Held in
Trust ...........................................................
SECTION 1004. Additional Amounts ......................................................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
SECTION 1005. Corporate Existence......................................................
SECTION 1006. Maintenance of Properties................................................
SECTION 1007. Payment of Taxes and Other Claims.......................................
SECTION 1008. Intentionally Omitted ...................................................
SECTION 1009. Intentionally Omitted ...................................................
SECTION 1010. Limitation upon Liens ..................................................
SECTION 1011. Statement as to Compliance ..............................................
SECTION 1012. Waiver of Certain Covenants .............................................
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article ................................................
SECTION 1102. Election to Redeem; Notice to Trustee ...................................
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. ......................
SECTION 1104. Notice of Redemption ....................................................
SECTION 1105. Deposit of Redemption Price .............................................
SECTION 1106. Securities Payable on Redemption Date ...................................
SECTION 1107. Securities Redeemed in Part .............................................
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article ................................................
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities ......................................................
SECTION 1203. Redemption of Securities for Sinking Fund ...............................
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called ...............................
SECTION 1302. Call, Notice and Place of Meetings ......................................
SECTION 1303. Persons Entitled to Vote at Meetings ....................................
SECTION 1304. Quorum; Action ..........................................................
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings ..............................................
SECTION 1306. Counting Votes and Recording Action of Meetings .........................
</TABLE>
<PAGE>
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 1401. Securities in Foreign Currencies ........................................
TESTIMONIUM ...................................................................................
SIGNATURES AND SEALS ..........................................................................
ACKNOWLEDGMENTS ...............................................................................
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF SECURITYHOLDERS
Section 1501. Applicability of Article ................................................
</TABLE>
<PAGE>
INDENTURE, dated as of ________________ __, 1999, between BOEING
CAPITAL CORPORATION, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 4060 Lakewood Boulevard, 6th Floor, Long Beach, California 90808, and Bankers
Trust Company, a banking corporation duly organized and existing under the laws
of the State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
unsubordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), unlimited as to principal amount, to be issued in one
or more series as in this Indenture provided.
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 or of series
thereof, 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;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise
herein expressly provided,
<PAGE>
the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at
the date of such computation; 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 Six, are defined in that
Article.
"Act", when used with respect to any Holder of a Security, 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, "con-
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 Person authorized by the Trustee to
act on behalf of the Trustee to authenticate one or more series of Securities.
"Authorized Newspaper" means a newspaper. in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of the officers and/or directors of the Company
appointed by that board.
<PAGE>
"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, or, to the extent permitted by applicable law and the
Company's by-laws, the Executive Committee of 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 a particular location
specified in the Securities or this Indenture, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in such location are authorized or obligated by law to close, except as may
otherwise be provided in the form of securities of any particular series
pursuant to the provisions of this indenture.
"Capital Stock" means any and all shares, interest, participations or
other equivalents (however designated) evidencing equity ownership.
"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 the 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 at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument 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" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller,
an Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Assets" means the amount of all assets which under
generally accepted accounting principles as in effect on the date of such
balance sheet, would appear on a consolidated balance sheet of the Company and
its Subsidiaries (after deducting related depreciation, amortization, unearned
finance charges, allowance for credit losses, and other valuation reserves), but
shall not include goodwill, unamortized debt discount and expenses, corporate
organization expense, patents and trademarks.
"Consolidated Liabilities" means the amount of all liabilities which
under generally accepted accounting principles as in effect on the date of such
balance sheet, would appear on a consolidated balance sheet of the Company and
its Subsidiaries including, without limitation, the par value or involuntary
liquidation value, whichever is greater, of minority interests, if any, in
preference stock of all Subsidiaries, but not including any of the following:
redeemable preferred or preference stock, minority
<PAGE>
interests, if any, in common stock of Subsidiaries, valuation reserves
(including unearned finance charges and allowances for credit losses deducted
from assets), Capital Stock and surplus and surplus reserves of the Company,
deferred taxes, deferred investment tax credit and any Debt of the Company which
is subordinated to the Securities.
"Corporate Trust Office" means the principal office of the Trustee in
the Borough of Manhattan, The City of New York, at which at any particular time
its corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at Four Albany Street, New York, New
York, 10005, Attention: Corporate Trust and Agency Services.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Debt" means, with respect to any Person, all obligations for borrowed
money of such Person which in accordance with generally accepted accounting
principles shall be classified upon a balance sheet of such Person as
liabilities of such Person, including all
(a) direct Debt and other similarly monetary obligations of
such Person,
(b) obligations secured by any lien upon Property owned by
such Person or obligations created or arising under any conditional
sale, capital lease, or other title retention agreement with respect to
Property acquired by such Person, PROVIDED, HOWEVER, that Debt shall
not include any indebtedness, including purchase money indebtedness,
with respect to which a creditor has no recourse against the obligor
except recourse to specific Property the acquisition of which was
financed by or otherwise secures such indebtedness, or to the proceeds
of any sale or lease of such Property or both,
(c) obligations under agreements to pay installments of
purchase price or other like payments with respect to fixed assets not
utilized by such Person or its subsidiaries in the ordinary course of
its business, including obligations ostensibly to pay rent under which
an equity interest is to be acquired in the rented Property.
In addition, Debt shall include all Guarantees of such Person to the
extent the amount of such Guarantees is in excess of 50% of the Shareholder's
Equity of such Person.
"Defaulted Interest" has the meaning specified in Section 307.
<PAGE>
"Dollar" or "$" or any similar reference shall mean the currency of the
United States, except as may otherwise be provided in the form of Securities of
any particular series pursuant to the provisions of this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Guarantees" means all obligations of any Person guaranteeing or in
effect guaranteeing any Debt or obligation or dividend of any other Person (the
"primary obligor") in any manner whether directly or indirectly, including
without limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person (a) to purchase any indebtedness or obligation or any
Property constituting security therefor, (b) to advance or supply funds (i) for
the purchase or payment of any indebtedness or obligation or (ii) to maintain
working capital, equity capital or other balance sheet condition or otherwise to
advance or make available funds for the purchase or payment of any indebtedness
or obligation, (c) to purchase Property, securities or services primarily for
the purpose of assuring the owner of any indebtedness or obligation of the
ability of the primary obligor to make payment of the indebtedness or obligation
or (d) otherwise to assure the owner of the indebtedness or obligation of the
primary obligor against loss in respect thereof. Obligations of the Company or
its Subsidiaries to acquire receivables in the ordinary course of business shall
not be deemed "Guarantees" of the indebtedness of the primary obligor under such
receivables.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the 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, means 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.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity, and, when used with respect to a security which provides
for the payment of Additional Amounts, shall include such Additional Amounts as
provided in Section 1004.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract (but excluding a
landlord's statutory lien for rent not yet due), and including, but not limited
to, the security interest lien arising from a mortgage, encumbrance, pledge,
conditional sale or trust receipt or a lease, consignment or bailment
<PAGE>
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting Property. For the
purpose of this Indenture, the Company or a Subsidiary shall be deemed to be the
owner of any Property which it has acquired or holds subject to a conditional
sale agreement, capital lease or other arrangement pursuant to which title to
the Property has been retained by or vested in some other Person for security
purposes.
"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, request for redemption or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, 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 an
employee of or counsel for the Company, or other counsel acceptable 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 for whose payment or redemption 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
thereto appertaining; PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which hare 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
<PAGE>
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 been given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, the principal
amount of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that could be declared to be due
and payable pursuant to the terms of such Original Issue Discount Security at
the time the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in Section 104(a), and, PROVIDED
FURTHER, that Securities owned beneficially by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor, other
than Securities purchased in connection with the distribution or trading
thereof, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee 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 pledges
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, limited liability company,
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 any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"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, as the case may be.
<PAGE>
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Redemption Date", when used with respect to any Security to be
redeemed, 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" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer within Corporate Trust and Agency Services (or any successor group of
the Trustee) including any managing director, any vice president, any assistant
treasurer, any assistant vice president, any assistant secretary, any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred at the
Trustee's Corporate Trust Office because of his knowledge of and familiarity
with the particular subject.
"Security" or "Securities" means any Security or Securities
authenticated and delivered under this Indenture.
"Security Register", "Security Registrar" and "Co-Security Registrar"
have the respective meanings specified in Section 305.
"Shareholder's Equity" of any Person shall mean the shareholder's
equity appearing on the balance sheet of such Person as determined under
generally accepted accounting principles.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of 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.
<PAGE>
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other Subsidiaries
For the purposes of this definition, 'voting stock" means stock which ordinarily
has 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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provision of this Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and possessions and other
areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depositary" or "Depositary" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depositary by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depositary" or "Depositary" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States which, in
either case, are not callable or redeemable at the
<PAGE>
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government Obligations or a
specific payment of or interest on any such U.S. Government Obligations held by
such custodian for the account of the holder of such 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 U.S.
Government Obligations or the specific payment of principal of or interest on
the U.S. Government Obligations evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
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 shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition 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 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 covenant
or condition 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.
<PAGE>
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any ease 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 with respect 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 a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel 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 with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise or reasonable care should
know, that the certificate or opinion or representations with respect 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.
<PAGE>
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 may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent 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 may, alternatively, be embodied in and evidenced by the record of
Holders of Securities voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities duly called
and held in accordance with the provisions of Article Thirteen, 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
and 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 (subject to
Section 601) conclusive in favor of the Trustee and 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 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities and the principal amount and
serial numbers of Registered Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, 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
<PAGE>
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.
(e) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by Board Resolution, fix in
advance a record date for the determination of Holders of Registered Securities
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
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 Registered Securities 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 of
Registered Securities on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(g) Any request, demand, authorization, direction, notice, consent,
election, 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 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,
election, 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,
<PAGE>
(1) the Trustee by any Holder of a Security or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust and Agency Services, 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 the attention of its Secretary, at
4060 Lakewood Boulevard, 6th Floor, Long Beach, California 90808, or at
any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS SECURITIES; WAIVER.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security 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; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and, if the Securities of such series are then listed on a
stock exchange of any stock exchange outside the United States, in an
Authorized Newspaper in such city as the Company shall advise the
Trustee in writing that such exchange so requires, on a Business Day at
least twice, the first such publication to be not earlier than the
earliest date and not later than the latest date prescribed for the
giving of such notice.
In ease by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any ease
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 of a Registered Security shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice by publication to Holders of Bearer Securities given as provided
above.
In case 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
<PAGE>
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 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 any notice mailed to Holders of Registered
Securities as provided above.
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 of Securities 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. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent,
election 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.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 109. 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 110. 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 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or coupons
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.
<PAGE>
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
or coupons) payment of interest or principal (and premium, 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 or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
SECTION 115. APPOINTMENT FOR SERVICE.
By the execution and delivery of this Indenture, the Company hereby
appoints the Trustee as its agent upon which process may be served in any legal
action or proceeding which may be instituted in any Federal or State court in
the Borough of Manhattan, The City of New York, arising out of or relating to
the Securities, the coupons or this Indenture. Service of process upon such
agent at the office of such agent at Four Albany Street, New York, New York
10015, Attention: Corporate Trust and Agency Services, and written notice of
said service to the Company by the Person serving the same addressed as provided
in Section 105 shall be deemed in every respect effective service of process
upon the Company in any such legal action or proceeding, and the Company hereby
submits to the jurisdiction of any such court in which any such legal action or
proceeding is so instituted. Such appointment shall be irrevocable so long as
the Holders of Securities or coupons shall have any rights pursuant to the terms
thereof or of this Indenture until the appointment of a successor by the Company
with the consent of the Trustee and such successor's acceptance of such
appointment. The Company further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of such agent or
successor.
<PAGE>
By the execution and delivery of this Indenture, Bankers Trust Company
hereby agrees to act as such agent and undertakes promptly to notify the Company
of receipt by it of service of process in accordance with this Section.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, and temporary
global Securities shall be in the form established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons. If the forms of Securities or coupons of any series (or any such
temporary global Security) are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action 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 Company Order contemplated by Section
303 for the authentication and delivery of such Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities. the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 301,
the Securities of a series also shall be issuable in bearer form, with or
without interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
one of the following forms:
<PAGE>
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
________________________________ OR ________________________________
AS TRUSTEE AS TRUSTEE
By:_____________________________
AS AUTHENTICATING AGENT
By:_____________________________ By:_____________________________
AUTHORIZED OFFICER AUTHORIZED OFFICER
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby shall be made in such manner and
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered pursuant to Section 303 or 304 with respect thereto. 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 a Security in global form shall be in writing but need not be
accompanied by or contained in an Officer's Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 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, the Person or Persons specified pursuant to
Section 301.
<PAGE>
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 may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto:
(l) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which 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 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) whether such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with coupons, without coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(4) the Person to whom any interest on any Registered Security
of the series shall be payable if other than the Person in whose name
that Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest and 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;
(5) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal of
such Securities is payable;
(6) the rate or rates at which such Securities shall bear
interest, if any or the method or methods, if any, by which such rate
or rates are to be determined,
<PAGE>
the date or dates, if any, from which such interest shall accrue or the
method or methods, if any, by which such date or dates are to be
determined, the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether
and under what circumstances Additional Amounts on such Securities or
any of them shall be payable, the notice, if any, to Holders regarding
the determination of interest on a floating rate Security and the
manner of giving such notice, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day
months;
(7) the place or places where the principal of (and premium,
if any) and interest on or Additional Amounts, if any, on Securities of
the series shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer, any of such
Securities may be surrendered for exchange and notices or demands to or
upon the Company in respect of such Securities and this Indenture may
be served; the extent to which, or the manner in which, any interest
payment on a global Security on an Interest Payment Date, will be paid
and the manner in which any principal of or premium, if any, on any
global Security will be paid;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such Securities
so redeemed or purchased;
(10) if Bearer Securities of the series are to be issuable,
whether interest in respect of any portion of a temporary Bearer
Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable in respect of an Interest Payment
Date prior to the exchange of such temporary Bearer Security for
definitive Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event. the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(11) the denominations in which Registered Securities of the
series. if any, shall be issuable if other than denominations of $1,000
and any integral
<PAGE>
multiple thereof, and the denominations in which Bearer Securities of
the series, if any, shall be issuable if other than the denomination of
$5,000;
(12) 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;
(13) the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any)
and interest on, and Additional Amounts in respect of, the Securities
of the series shall be payable (if other than the currency of the
United States of America), and the particular provisions applicable
thereto and, if applicable, the amount of Securities of the series
which entitles the Holder of a Security of the series or proxy to one
vote for purposes of Section 1305(c);
(14) any addition to, or modification or deletion of, any
Event of Default or any covenant of the Company specified herein with
respect to the Securities of the series;
(15) if the principal of (and premium, if any) or interest,
and Additional Amounts in respect of, if any, on such Securities are to
be payable, at the election of the Company or a Holder thereof, in a
coin or currency, including composite currencies, other than that in
which the Securities are stated to be payable, the period or periods
within which, 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 in which such Securities are denominated or stated
to be payable and the currency in which such Securities or any of them
are to be so payable;
(16) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to, such
Securities may be determined with reference to an index, formula, or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more currencies, commodities,
equity indices or other indices), and, if so, the terms and conditions
upon which and the manner in which such shall be determined and paid or
payable;
(17) if any such Securities are to be issuable in global form
and are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
<PAGE>
(18) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(19) the application, if any, of Section 403 to the Securities
of the series;
(20) if any such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether beneficial owners of interests in any such global Security may
exchange such interests for Securities of the same series and of like
tenor and of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
specified in Section 305, and (ii) the name of the Depositary or U.S.
Depositary, as the case may be, to any global Security;
(21) if there is more than one Trustee, the identity of the
Trustee, and if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities.
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and all coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to currency of payments due thereunder, denomination and the rate or rates of
interest, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officers' Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee upon receipt of a Company Order by
the Trustee pursuant to Section 303 on original issue form time to time upon
written order of persons designated in the Officers' Certificate or supplemental
indenture and that such persons are authorized to determine, consistent with
such Officers' Certificate or any applicable supplemental indenture, such terms
and conditions of the Securities of such series as are specified in such
Officers' Certificate or supplemental indenture. All securities of any one
series need not be issued at the same time, and unless otherwise so provided by
the Company, a series may be reopened for issuance of additional Securities of
such series or to establish additional terms of such series of Securities.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
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 of the series.
<PAGE>
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, the Registered Securities of each series shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of each series, if any, shall be issuable in the denomination
of $5,000. or in such other denominations and amounts as may from time to time
be fixed by or pursuant to a Board Resolution.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile. Coupons shall bear the facsimile signature of the
Treasurer or any Assistant Treasurer of the Company.
Securities and 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.
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 coupons appertaining thereto, executed by the Company to the Trustee or its
designated agent for authentication by the Trustee, 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, a
Bearer Security may be delivered only outside the United States and only if the
Trustee shall have received from the person entitled to receive such Bearer
Security a certificate in the form required by Section 31 1, 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 or permanent global
Security first becomes exchangeable for such Bearer Security in accordance with
the terms of such temporary Security or permanent global Security and this
Indenture. If any Security shall be represented by a permanent global 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
or 307, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled.
<PAGE>
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, 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
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the forms of such Securities and coupons, if any, have
been established by or pursuant to Board Resolution as permitted by
Section 201, that such forms have been established in conformity with
the provisions of this Indenture;
(b) if the terms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement,. to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
(d) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and coupons, if any, have
been complied with; and
(e) this Indenture has been qualified under the Trust
Indenture Act.
If such forms 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 or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security (including any temporary or definitive Bearer Security in
global form) shall be dated as of the date specified as contemplated by Section
301.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
coupons appertaining thereto, the Trustee shall also be entitled to receive
annually, and shall be fully protected in relying upon, an Officers' Certificate
stating that, to the best knowledge of the Persons
<PAGE>
executing such certificate, no event which is, or after notice or lapse of time
would become, an Event of Default with respect to any of the Securities shall
have occurred and be continuing.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, 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. Except as permitted by
Section 306 or 307, 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,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
SECTION 304. TEMPORARY SECURITIES AND EXCHANGE OF SECURITIES.
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 evidenced by their execution of such Securities. In
the case of Bearer Securities of any series, such temporary Securities may be in
global form, representing all of the Outstanding Bearer Securities of such
series.
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 unmatured coupons
appertaining thereto) the Company shall execute and the Trustee shall
authenticate and
<PAGE>
deliver in exchange therefor (at an office or agency of the Company in the case
of Bearer Securities) a like principal amount of definitive Securities of the
same series of authorized denominations and of like tenor; PROVIDED, HOWEVER,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and PROVIDED, FURTHER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the person entitled to receive the
definitive Bearer Security a certificate in the form required by Section 311.
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.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to this Section 305 or Section 1002 a register
(being the combined register of the Security Registrar and all Co-Security
Registrars and sometimes collectively referred to 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.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment maintained for such
purpose for such 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 like tenor and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for Registered Securities of the same series containing identical
terms and provisions of any authorized denominations and of like tenor and
aggregate principal amount, 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 Securities which the Holder making the exchange is
entitled to receive.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series containing identical
terms and provisions, of any authorized denominations and of like tenor and
aggregate principal amount, 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, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee 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 be furnished to them such security or indemnity as they
may require to
<PAGE>
save each of them and any Paying Agent harmless. If 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 exchange
for a Registered Security of the same series 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 date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such coupon
is so surrendered with such Bearer Security, such coupon shall be returned to
the person so surrendering the Bearer Security), 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.
If expressly provided with respect to the Securities of any series, at
the option of the Holder, Registered Securities of such series may be exchanged
for Bearer Securities upon such terms and conditions as may be provided with
respect to such series.
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 provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depositary is at any time unwilling,
unable or ineligible to continue as Depositary and a successor depositary is
not appointed by the Company within 60 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing
with respect to the Securities. If the beneficial owners of interests in a
global Security are entitled to exchange such interests for definitive
Securities, then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities in such form and
denominations as are required by or pursuant to this Indenture, and of the
same series, containing identical terms and in aggregate principal amount
equal to the principal amount of such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by the
U.S. Depositary or such other Depositary as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S.
<PAGE>
Depositary or such other Depositary, as the case may be (which instructions
shall be in writing, but need not be contained in or accompanied by an
Officers' Certificate or be accompanied by an Opinion of Counsel), 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 in part, for
definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such global Security to be exchanged, which
(unless such Securities are not issuable both as Bearer Securities and as
Registered Securities, in which case the definitive Securities exchanged for
the global Security shall be issuable only in the form in which the
Securities are issuable, as provided in or pursuant to this Indenture) shall
be in the form of Bearer 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 of the same series to be redeemed and
ending on the relevant Redemption Date; and provided, further, that (unless
otherwise provided in or pursuant to this Indenture) no Bearer Security
delivered in exchange for a portion of a global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following
any such exchange in part, such global Security shall be returned by the
Trustee to such Depositary or the U.S. Depositary, as the case may be, or
such other Depositary of U.S. Depositary referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security
is issued in exchange for any portion of a global Security after the close of
business at the office or agency of such global Security where such exchange
occurs on or after (i) any Regular Record Date for such Security and before
the opening of business at such office or agency on the next Interest Payment
Date, or (ii) any Special Record Date for such Security and before the
opening of business at such office or agency on the related proposed date for
payment of interest or Default Interest, as the case may be, interest shall
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 shall 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
global Security shall be payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the 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 Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
<PAGE>
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 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of that series called for redemption and ending at the close of
business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if Securities of the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if Securities of the
series 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 the unredeemed portion of any Security being redeemed
in part. 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, PROVIDED that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture.
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, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series containing identical terms and provisions and of like tenor
and principal amount 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 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 containing
identical terms and provisions and of like tenor and principal amount 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>
Notwithstanding the foregoing provisions of this Section 306, in case
any 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, pay such Security or coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest 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 any such new Security ant coupons, if any, 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.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Registered Security which 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. 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 [merest 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.
<PAGE>
Any interest on any Registered Security of any series which 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
Holder 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, and at the same time
the Company shall deposit with the Trustee an amount of money 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 prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix Record Date for the payment of such Defaulted
Interest which shall Se 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 the address
of such Holder 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 so mailed, 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 folder of such coupon when due in accordance with the provisions
of this Indenture.
<PAGE>
(2) The Company may make payment of any Defaulted Interest on
the 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.
Subject to the foregoing provisions of this Section, 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. 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 Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest 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.
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.
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
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 shall be promptly cancelled by the Trustee. 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 all Securities so delivered shall be promptly cancelled
by the Trustee. 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. All cancelled Securities and coupons held by the
Trustee shall be destroyed, and the Trustee shall promptly deliver a certificate
of destruction to the Company.
<PAGE>
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. FORM OF CERTIFICATION BY A PERSON ENTITLED TO RECEIVE A BEARER
SECURITY.
Whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by a Person entitled to receive a
Bearer Security, such certification shall be provided substantially in the form
of the following certificate, with only such changes as shall be approved by the
Company:
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
-------------------------
This is to certify that the above-captioned Security is not being
acquired by or on behalf of a United States person, or for offer to resell or
for resale to a United States person, or, if a beneficial interest in the
Security is being acquired by a United States person, that such person is a
financial institution or is acquiring through a financial institution and that
the Security is held by a financial institution that has agreed in writing to
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. If this
certificate is being provided by a clearing organization. it is based on
statements provided to it by its member organizations. As used herein, ' United
States" means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction, and "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof and any estate or trust the income of which is subject to United States
Federal income taxation regardless of its source. If the undersigned is a
dealer, the undersigned agrees to obtain a similar certificate from each person
entitled to delivery of any of the above-captioned Securities in bearer form
purchased from it; PROVIDED, HOWEVER, that, if the undersigned has actual
knowledge that the information contained in such a certificate is false, the
undersigned will not deliver a Security in temporary or definitive bearer form
to the person who signed such certificate notwithstanding the delivery of such
certificate to the undersigned.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities.
<PAGE>
We understand that this certificate 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......
........................................
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive Additional
Amounts, as provided in Section 1004), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered and all coupons 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 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 1107, and (iv) Securities and
coupons 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 such Securities 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
<PAGE>
(iii) arc 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
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities and
coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
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;
(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 have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 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.
<PAGE>
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 or 403 shall be held in
truest 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 for whose payment such money has been deposited
with the Trustee.
SECTION 403. SATISFACTION. DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY
SERIES.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, then notwithstanding Section 401, (i)
the Company shall be deemed to have paid and discharged the entire indebtedness
on all the Outstanding Securities of any such series; (ii) the provisions of
this Indenture as it relates to such Outstanding Securities shall no longer be
in effect (except as to the rights of Holders of Securities to receive, from the
trust fund described in subparagraph (1) below, payment of the principal of (and
premium, if any) and any installment of principal of (and premium, if any) or
interest on such Securities on the Stated Maturity of such principal or
installment of principal or interest or any mandatory sinking fund payments or
analogous payments applicable to the Securities of that series on the day on
which such payments are due and payable in accordance with the terms of the
Indenture and of such Securities, the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1004 and the rights, powers,
trusts, duties and immunities of the Trustee hereunder, including those under
Section 607 hereof); and (iii) the Trustee, at the expense of the Company,
shall, upon Company Request, execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Securities of
such series, with reference to this Section 403, the Company
has deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 609)
irrevocably (but subject to the provisions of Section 402 and
the last paragraph of Section 1004), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series,
(X) lawful money of the United States in an amount, or (Y)
U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with
their terms will provide not later than the opening of
business on the due dates of any payment referred to in clause
(i) or (ii) of this subparagraph (l)(A) lawful money of the
United States in an amount, or (Z) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification
<PAGE>
thereof delivered to the Trustee, to pay and discharge (i) the
principal of (and premium, if any) and each installment of
principal (and premium, if any) and interest on the
Outstanding Securities of that series 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 Securities of such series on the day on which
such payments are due and payable in accordance with the terms
of this Indenture and of such Securities; PROVIDED, HOWEVER,
the Company shall not make or cause to be made the deposit
provided for by this subparagraph (A) unless the Company shall
have delivered to the Trustee an Opinion of Counsel to the
effect that either (i), as a result of such deposit and the
related exercise of the Company's option under this Section
403, registration will not be required under the Investment
Company Act of 1940, as amended, by the Company, the trust
funds representing such deposit or the Trustee or (ii) all
necessary registrations under said Act have been effected; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Outstanding Securities of such series;
(3) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of that series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 501(5) or Section 501(6) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 501(5) or Section 501(6) shall have occurred and be
continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (b)
since the date of this Indenture there has been a change in applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred;
<PAGE>
(6) if the Securities of that series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Securities to be delisted;
and
(7) 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 the entire indebtedness on all Outstanding Securities of
any such series have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the applicable escrow trust agreement shall
provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; PROVIDED that the Company shall not be discharged
from any payment obligations in respect of Securities of such series which arc
deemed not to be under clause (iii) of the definition thereof if such
obligations continue to be valid obligations of the Company under applicable
law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under the Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1004 shall survive with respect to such series of Securities.
Each supplemental indenture with respect to a series of Securities may
contain other provisions with respect to the satisfaction, discharge and
defeasance of such series, which provisions may be additional to, or in
replacement of, the provisions set forth in this Section 403.
ARTICLE FIVE
REMEDIES
<PAGE>
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether 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 when it 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
either at Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default of
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) a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company (including
this Indenture), whether such indebtedness now exists or shall
hereafter be created, which default shall have resulted in such
indebtedness, in an aggregate principal amount exceeding $35,000,000
(except that such dollar amount shall not apply with respect to a
default with respect to Securities of any series), becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or annulled, or
there having been deposited in trust a sum of money sufficient to
discharge in full such indebtedness, within a period of 20 days after
there shall have 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 and requiring the
Company to cause such indebtedness to be discharged, cause there to be
deposited
<PAGE>
in trust a sum sufficient to discharge in full such indebtedness or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; PROVIDED, HOWEVER,
that, subject to the provisions of Sections 601 and 602, the Trustee
shall not be deemed to have knowledge of such default unless either (A)
a Responsible Officer of the Trustee shall have actual knowledge of
such default or (B) the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any such
indebtedness or from the trustee under any such mortgage, indenture or
other instrument; PROVIDED, FURTHER, that any such event of default
shall not be deemed to have occurred so long as the Company shall
contest the validity thereof in good faith by appropriate proceedings;
or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company, or of
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
eject for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
either of the foregoing to the entry of a decree or order for relief in
an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding, or the
filing by either of the foregoing of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by either of the foregoing to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of the property of
either, or the making by either of the foregoing of an assignment for
the benefit of creditors, or the admission by either of the foregoing
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action; or
(8) any other Event of Default provided in a supplemental
indenture with respect to Securities of that series.
<PAGE>
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 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 amount (or, if the
Securities of that series. are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of 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 Holders), and upon any
such declaration such principal amount (or specified amount) 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 in this
Article provided, 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
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor 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 non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
<PAGE>
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 interest on any
Security 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 at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, 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 sum so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjusted 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, 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.
<PAGE>
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
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 overdue principal 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, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be due
and payable with respect to such series pursuant to a declaration in
accordance with Section S02) (and premium, if any) and any interest
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 of Securities and coupons
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 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 of Securities and coupons, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
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 or 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.
<PAGE>
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS.
All rights of action and claims under this Indenture or 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 any interest, 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 under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities and
coupons 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 amounts due and payable on such Securities and coupons
for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors or assigns or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction
may direct.
SECTION 507. LIMITATION ON SUITS.
Subject to Section 508, no Holder of any Security of any series or any
related coupons 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
<PAGE>
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 Holders of any other series, 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 of 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 Section 307) interest on such Security or payment of such coupon on
the Stated Maturity or Maturities 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, subject to any determination in such proceeding, 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.
<PAGE>
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 of Securities or coupons 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, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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 on any Security of such series, or
<PAGE>
(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 impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
ant good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder of any Security or coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security or the payment of
any coupon on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date) or
interest on any overdue principal of any Security.
SECTION 515. 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
<PAGE>
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of-an Event of Default with respect
to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series has occurred and is continuing, the Trustee shall exercise, with respect
to Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, EXCEPT that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error or judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance
<PAGE>
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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. 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 by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 703(c), notice of all 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 on any Security of such series or in the payment of any sinking fund
installment with respect to 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 or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of Securities and coupons of such
series; and PROVIDED, FURTHER, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) 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, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) 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 an Officers' Certificate;
<PAGE>
(d) the Trustee may consult with counsel and the written 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;
(e) 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;
(f) 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, direct ion, consent, order, bond, debenture.
note, coupon, other evidence of indebtedness 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 seem 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;
(g) 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; and
(h) except as otherwise provided in Section 501(5), the Trustee shall
not be charged with knowledge of any Event of Default with respect to the
Securities of any series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee assigned to the Corporate Trust and Agency
Services of the Trustee (or any successor division or department of the Trustee)
shall have actual knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such Securities.
<PAGE>
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledges of Securities and coupons and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent. Paying Agent,
Security Registrar or such other agent.
SECTION 606. 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 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (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 the 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, disbursements or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee (which for purposes of this
Section 607(c) shall include its officers, directors, employees and
agents) for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or
<PAGE>
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.
The provisions of this Section 607(c) shall survive the termination of
this Indenture or the registration or removal of the Trustee.
SECTION 608. INTENTIONALLY OMITTED..
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $150,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said 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 610. 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 611.
(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. If the instrument of acceptance by successor Trustee
required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(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:
<PAGE>
(1) the Trustee shall fail to comply with Section
608(a) 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 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, 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 a Board Resolution may remove the Trustee with
respect to all Securities, or (ii) subject to Section 514, 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 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 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 at 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) and shall comply with the
applicable requirements of Section 611. 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 in accordance with the applicable requirements of Section
611, 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 required by Section 611, 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 the securities of such series.
(f) 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 by mailing
written notice of
<PAGE>
such event by first-class mail, postage prepaid, to all Holders of Registered
Securities, if any, of such series as their names and addresses appear in the
security Register and, if Securities of much series are issuable as Bearer
Securities, by publishing notice of such event once in an Authorized Newspaper
in each Place of Payment located outside the United States. 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 611. 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 so appointed 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 the 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.
(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 or 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 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
<PAGE>
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 ant
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Sect ion, as the ease 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 612. 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 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 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 so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. INTENTIONALLY OMITTED.
<PAGE>
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time 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 or
pursuant to Section 306, 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. 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 shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said 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. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, PROVIDED such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof 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 may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issuable as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor
<PAGE>
Authenticating Agent has its principal office if such office is located outside
the United States. 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. 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 for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
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 the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
-----------------------------------
AS TRUSTEE
BY_________________________________
AS AUTHENTICATING AGENT
BY_________________________________
AUTHORIZED SIGNATORY
BY_________________________________
AUTHORIZED SIGNATORY
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not comply
with Section 102) by the Company, shall appoint in accordance with this Section
614 an Authenticating Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE SEVEN
REPORTS BY TRUSTEE AND COMPANY
<PAGE>
SECTION 701. REPORTS BY TRUSTEE TO SECURITYHOLDERS.
Within 60 days after March 15 in each year, beginning with the March 15
following the date of this Indenture, the Trustee shall mail to the
Securityholders a brief report dated as of such reporting date in compliance
with Section 313(a) of the Trust Indenture Act of 1939. The Trustee also shall
comply with Section 313(b) of the Trust Indenture Act of 1939. The Trustee shall
also transmit by mail all reports as required by Section 313(c) of the Trust
Indenture Act of 1939. The Issuer shall promptly notify the Trustee when the
Securities are listed on any stock exchange.
SECTION 702. REPORTS.
The Issuer shall comply with the provisions of Section 314(a) of the
Trust Indenture Act of 1939 and shall file with the Trustee within 45 days after
it files them with the Commission and in any event no later than 60 days after
the end of the respective fiscal quarter, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) which
the Issuer is required to file with the Commission pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State
thereof or the District of Columbia, and if such corporation is not the
Company, 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 (including all Additional Amounts, if any, payable
pursuant to Section 1004) on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
<PAGE>
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) if, as a result of any such or merger or conveyance
transfer or lease, properties or assets of the Company would become
subject to a mortgage, pledge, lien, security interests or other
encumbrance which would not be permitted by this Indenture, the Company
or such successor corporation or Person, as the case may be, shall take
such steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation (if the corporation formed by such consolidation is not
the Company), merger, conveyance, transfer or lease 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 CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of 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 to which such conveyance, transfer or lease 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 corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities and
coupons.
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 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:
<PAGE>
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; 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; or
(4) to add to or change any of the provisions of this
Indenture provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal
(or premium, if any) or any interest on Bearer Securities, to permit
Registered Securities to be exchanged for Bearer Securities or to
permit the issuance of Securities in uncertificated form, PROVIDED 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; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; 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,
pursuant to the requirements of Section 611(b); 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 such action shall not
adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect.
<PAGE>
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders of Securities delivered to the
Company and the Trustee, the Company, when authorized by 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 of such series 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 or coupon affected
thereby,
(1) change the Stated Maturity of the principal of, 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 amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment, or the coin or currency in which, any Security or
any premium or the 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, on or after the
Redemption Date), 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 (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 1304 for quorum or voting, or
(3) change any obligation of the Company to maintain an office
or agency in Section 1002, or
(4) modify any of the provisions of this Section, Section 513
or Section 1012, 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, PROVIDED, HOWEVER, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1012, or the deletion
of this proviso, in accordance with the requirements of Sections 611(b)
and 901(8).
<PAGE>
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.
It shall not be necessary for any Act of Holders of Securities 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.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) 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 coupons 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 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.
<PAGE>
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the 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.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series and office or
agency where Securities of that series may be presented or surrendered for
payments, where Securities of that series may be surrendered for registration of
transfer or exchange 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 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 (including payment of any
Additional Amounts payable on Securities of that series pursuant to Section
1004); PROVIDED, HOWEVER, that if the Securities of that series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland, 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 London, 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 and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may
<PAGE>
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect to any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
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, payment
of principal of and any premium and interest in U.S. dollars (including
Additional Amounts payable in respect thereof) on any Bearer Security may be
made at the Corporate Trust Office of the Trustee in the Borough of Manhattan,
The City of New York if (but only if) payment of the full amount of such
principal, premium, interest or Additional Amounts at all offices outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also 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 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 each Place of Payment 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.
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 Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
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 to so act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest 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.
<PAGE>
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
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 money.
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 (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
any coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, 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 in each Place of Payment notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days nor more than 90 days and no more than 90 days, turn funds over from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
<PAGE>
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 any Security of any series or any
coupon appertaining thereto Additional Amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect of, any Security of any
series of any related coupon of 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 for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section 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.
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
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) 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 (and premium, if any) or interest on the Securities of that
series shall be made to Holders of Securities of that series or the related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that 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 or coupons and the Company will
pay to the Trustee or such Paying Agent the Additional Amounts required by this
Section. 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.
<PAGE>
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company and its Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries considered as a
whole and that the loss thereof is not disadvantageous in any material respect
to the Holders.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties, or disposing of them if such
discontinuance or disposal is, in the judgment of the Company or of the
Subsidiary concerned, desirable in the conduct of its business or the business
of any Subsidiary and not disadvantageous in any material respect to the Holders
of Securities.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims or labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
<PAGE>
SECTION 1008. INTENTIONALLY OMITTED..
SECTION 1009. INTENTIONALLY OMITTED..
SECTION 1010. LIMITATION UPON LIENS.
The Company will not, and will not permit any Subsidiary to create,
assume, incur or suffer to be created, assumed or incurred or to exist any Lien
upon any of the Properties of any character of the Company or any Subsidiary
without making effective provision whereby the Securities and coupons
appertaining thereto then outstanding shall be secured equally ant ratably with
(or prior to) any other obligation or indebtedness so secured, so long as any
such other obligation or indebtedness remains secured; except, however, that
notwithstanding the foregoing, the Company or any Subsidiary, without so
securing the Securities and coupons appertaining thereto, may:
(a) lease or sublease Property to others in the ordinary
course of the business of the Company or any Subsidiary, or lease or
sublease any Property if the Property subject thereto is not needed by
the Company or any Subsidiary in the operation of its business;
(b) create, assume and incur or permit to exist Liens on its
Property acquired or constructed by the Company or a Subsidiary to
secure the purchase price of such Property (or to secure indebtedness
for money borrowed or incurred prior to or within 12 months after the
acquisition or construction of any such Property to be subject to such
Lien for the purpose of such acquisition or construction), or Liens
existing on any such Property at the time of acquisition, whether or
not assumed, or any Lien existing on any Property of any Person at the
time it becomes a Subsidiary or is merged or consolidated with the
Company or a Subsidiary or at the time of acquisition of the assets of
a Person as an entirety or substantially as an entirety by the Company
or a Subsidiary, and any conditional sales agreement or other title
retention agreement with respect to any Property hereafter acquired;
PROVIDED, HOWEVER, that the aggregate principal amount of the
indebtedness secured by all such Liens on any particular Property shall
not exceed the cost of such Property, including the improvements
thereon, to the Company or any such Subsidiary, and PROVIDED, FURTHER,
that any such Lien does not extend to other Property owned prior to
such acquisition or construction or to Property thereafter acquired or
constructed;
(c) create, assume and incur such Liens or permit such Liens
to be created, assumed, incurred or to exist, provided, in each case,
the Lien secures indebtedness for borrowed money, including purchase
money indebtedness, which is incurred to finance or refinance
(irrespective of whether the original acquisition of the Property was
with or from money borrowed) the acquisition of the Property subject to
such Lien and in respect of which the creditor has no recourse against
<PAGE>
the Company or any Subsidiary except recourse to such Property or to
the proceeds of any sale or lease of such Property or both;
(d) create, assume and incur or permit to exist Liens on
Property of the Company or a Subsidiary in favor of the United States
of America or any state thereof, or any department, governmental body,
agency or instrumentality or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other payments
pursuant to any contract, or statute relating thereto;
(e) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or
governmental regulation in order to enable the Company or such
Subsidiary to maintain self-insurance, or to participate in any fund or
payment in connection with workmen's compensation, unemployment
insurance, old-age pensions, or other social security, or to share in
any privileges or other benefits available to corporations
participating in any such arrangements, or for any other purpose at any
time required by law or regulation promulgated by any government agency
or office as a condition to the transaction of any business or the
exercise of any privilege or license, or deposit assets of the Company
or such Subsidiary 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 by the Company or such Subsidiary from any judgment or decree
against it, or in connection with any other proceedings in actions at
law or suits in equity by or against the Company or such Subsidiary;
(f) incur or suffer to be incurred or to exist upon any of its
Property or assets (i) Liens for taxes, assessments or other
governmental charges or levies which are not yet due or are payable
without penalty or of which amount, applicability or validity is being
contested by the Company or such Subsidiary in good faith by
appropriate proceedings and the Company or such Subsidiary shall have
set aside on its books reserves which it deems to be adequate with
respect thereto (segregated to the extent required by generally
accepted accounting principles), PROVIDED that foreclosure, distraint,
sale or similar proceedings (other than those that may be and are cured
by payment) have not been commenced, (ii) the Liens of any judgment and
other similar Liens arising in connection with court proceedings,
providing such Lien is discharged or the execution or other enforcement
of such Lien is effectively stayed within six months of the creation of
such Lien, (iii) undetermined Liens or charges incident to
construction, (iv) materialmen's, mechanics', workmen's, repairmen's,
landlords' liens for rent or other like Liens arising in the ordinary
course of business in respect of obligations which are not overdue or
which are being contested by the Company or such Subsidiary in good
faith by appropriate proceedings, or deposits to obtain the release of
such Liens or (v) any encumbrances consisting of zoning restrictions,
licenses, easements and restrictions on the use of real property and
minor defects and irregularities in the title thereto, which do not
materially impair the use of
<PAGE>
such property by the Company or such Subsidiary in the operation of its
business or the value of such property for the purpose of such
business;
(g) create or suffer to be created or to exist in favor of any
lender of moneys or holder of commercial paper of the Company or a
Subsidiary in the ordinary course of business a banker's lien or right
of offset in the holder of such indebtedness on moneys of the Company
or a Subsidiary deposited with such lender or holder in the ordinary
course of business;
(h) create, assume and incur such Liens or permit such Liens
to be created, assumed, incurred or to exist, PROVIDED any such Lien
relates solely to the purchase of, or the investment in or with respect
to, a specific item or items of tangible personal property and secures
indebtedness evidenced by participation certificates, trust
certificates, indentures or the like, however, denominated, PROVIDED,
FURTHER, that no such Lien shall constitute a general lien or mortgage
on substantially all the tangible assets of the Company;
(i) refund, replace or extend any Lien permitted by this
Section 1010 for amounts not exceeding the principal amount of
indebtedness so refunded or extended at the time of the refunding or
extension thereof, and covering only the same Property theretofore
securing the same;
(j) deposit or pledge assets 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;
(k) permit to exist Liens existing on __________, 1998 on its
Property; and
(1) create, assume and incur or permit to exist any Lien on
aircraft or equipment held by Company or a Subsidiary for lease to
third parties, if such Lien secures an obligation in respect of money
borrowed which provides that recourse to the Company or such Subsidiary
shall not be had for the payment of such obligation;
(m) in addition to the Liens permitted by clauses (a) through
(l) above, secure an aggregate principal amount of indebtedness of the
Company (including its Subsidiaries) not in excess of 15% of
Consolidated Assets.
<PAGE>
SECTION 1011. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement, which need not comply with Section
102, signed by the Chairman of the Board, the President, or a Vice President and
by the Treasurer, an Assistant Treasurer, the Controller or an Assistant
Controller of the Company, stating as to each signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him and the nature and status thereof, and (b) no event has occurred
and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and the
nature and status thereof.
SECTION 1012. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1007, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66 2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either 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.
<PAGE>
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of 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. In case of any redemption at the election of the Company of
less than all 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 Trustees) 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 (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (ii) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue date,
interest rate or formula, Stated Maturity and other terms are to be redeemed,
the particular Securities to be redeemed shall be selected pro rata not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, or by such other
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions of the principal amount of Registered
Securities of such series not redeemed to be less than the minimum denomination
for a Security of such series established herein or pursuant hereto. Unless
otherwise provided in the Securities of a series, partial redemption must be in
an amount not less than $1,000,000 principal amount of Securities.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than the Trustee) in writing of the Securities selected
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 contest otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
<PAGE>
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in par's, or any defect in the notice of any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(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 Securities to be
redeemed,
(4) in case any Registered 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
of such Security will receive, without charge, a new Registered
Security or Registered Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or 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 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 any accrued interest and Additional
Amounts pertaining thereto,
(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,
<PAGE>
unless security or indemnity satisfactory to the Company, the Trustee
and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to 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 the 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 or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a
Depositary to identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company 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, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any accrued interest on and Additional
Amounts with respect to all the Securities or portions thereof which are to be
redeemed on that date.
<PAGE>
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, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall 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 and
Additional Amounts 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 upon presentation and surrender of coupons
for such interest (an office or agency located outside the United States except
as otherwise provided in Section 1002), 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 Securities 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 and Additional Amounts represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
<PAGE>
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Place of Payment for such Security (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 Registered Security or Securities of the
same series, containing identical terms and provisions, 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. If a Security in global form is so surrendered the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depositary
or other Depositary for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
or 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 Securities of any series is herein referred to as an "optional
sinking fund payment' . If provided for by the terms of Securities of any
series, the cash amount of any 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.
<PAGE>
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a 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) may apply as a credit Securities of a 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, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; PROVIDED that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such 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 any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing 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 and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not than less 30 days before each sinking fund payment date the
Trustee shall select 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
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. 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.
<PAGE>
SECTION 1302. 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 l301, 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 1301, 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 2l 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 1303. 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 (l) 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 representative of the
Trustee and its counsel and any representatives of the Company and its counsel.
<PAGE>
SECTION 1304. 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 66
2/3% in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote 66 2/3% 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 the 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 1302(a), except that
such notice need to 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
an 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 only 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 consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66 2/3% in principal amount of
the Outstanding Securities of that series; and PROVIDED, FURTHER, 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 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.
<PAGE>
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this indenture, the Trustee
may take such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such 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 the Holders of Securities as provided in Section 1302(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 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 1302 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>
SECTION 1306. 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 written verified
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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 facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE FOURTEEN
MISCELLANEOUS PROVISIONS
SECTION 1401. SECURITIES IN FOREIGN CURRENCIES.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than United States
dollars shall be treated for any such action or distribution as that amount of
United States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Registered
Securities of such series (if any) for such action, determination of rights or
distribution (or, if there Shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the Company may specify in a written notice to the Trustee or,
in the absence of such written notice, as the Trustee may determine.
ARTICLE FIFTEEN
REPAYMENT AT THE OPTION OF HOLDERS
<PAGE>
SECTION 1501. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 1501, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
---------------------
This instrument 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 instrument.
<PAGE>
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.
BOEING CAPITAL CORPORATION
By________________________________
Title:
ATTEST:
- -----------------------------------
SECRETARY
BANKERS TRUST COMPANY,
TRUSTEE
By________________________________
Assistant Secretary
ATTEST:
- -----------------------------------
SECRETARY
<PAGE>
Exhibit 4(b)
BOEING CAPITAL CORPORATION
TO
BANKERS TRUST COMPANY
TRUSTEE
INDENTURE
DATED AS OF ______________, 1999
PROVIDING FOR THE ISSUANCE OF DEBT SECURITIES
<PAGE>
BOEING CAPITAL CORPORATION
AND
BANKERS TRUST COMPANY,
TRUSTEE
INDENTURE
Dated as of ___________________, 1999
-------------------
Reference is made to the following provisions of the Trust
Indenture Act of 1939, as amended, which establish certain duties and
responsibilities of the Issuer and the Trustee which are not set forth in this
Indenture:
<TABLE>
<CAPTION>
Section Subject Section Subject
- ------- ------- ------- -------
<S> <C> <C> <C>
310 (b) Disqualification of Trustee for 315 (c) Duties of claims Trustee in case of
conflicting Securityholders default
311 Preferential collection of Trustee as 315 (d) Provisions relating to responsibility
creditor of Issuer of Trustee
312 (a) Periodic filing of information by 315 (e) Assessment of costs against litigating
Issuer with Trustee Securityholders in certain
circumstances
312 (b) Access of Securityholders to 316 (a) Directions to and waivers by
information Securityholders in certain
circumstances
313 (b) Additional reports of Trustee to 316 (b) Prohibition or impairment of right of
Securityholders Securityholders to payment
314 (c) Evidence of compliance with 316 (c) Right of Issuer to set record date for
conditions precedent certain purposes
315 (a) Duties of Trustee prior to default 317 (a) Special powers of Trustee
315 (b) Notice of default from Trustee to 318 (a) Provisions of Act to control in case
Securityholders of conflict
</TABLE>
<PAGE>
TABLE OF CONTENTS
<TABLE>
<CAPTION>
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<S> <C>
PARTIES........................................................................................
RECITALS OF THE COMPANY .......................................................................
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions:
Act .....................................................................
Additional Amounts ......................................................
Affiliate; control ......................................................
Authenticating Agent ....................................................
Authorized Newspaper ....................................................
Bearer Security .........................................................
Board of Directors ......................................................
Board Resolution ........................................................
Business Day ............................................................
Capital Stock ...........................................................
Commission ..............................................................
Company .................................................................
Company Request; Company Order ..........................................
Consolidated Assets .....................................................
Consolidated Liabilities ................................................
Corporate Trust Office ..................................................
corporation .............................................................
coupon ..................................................................
Debt ....................................................................
Defaulted Interest ......................................................
Dollar ..................................................................
Event of Default ........................................................
Guarantees ..............................................................
Holder ..................................................................
Indenture ...............................................................
interest ................................................................
Interest Payment Date ...................................................
Lien ....................................................................
Maturity ................................................................
</TABLE>
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NOTE: This table of contents shall not, for any purpose, be deemed to be a part
of the Indenture.
<PAGE>
<TABLE>
<CAPTION>
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<S> <C>
Officers' Certificate ...................................................
Opinion of Counsel ......................................................
Original Issue Discount Security ........................................
Outstanding .............................................................
Paying Agent ............................................................
Person ..................................................................
Place of Payment ........................................................
Predecessor Security ....................................................
Property ................................................................
Redemption Date .........................................................
Redemption Price ........................................................
Registered Security .....................................................
Regular Record Date .....................................................
Responsible Officer .....................................................
Securities ..............................................................
Security Register; Security Registrar; Co-Security
Registrar ............................................................
Special Record Date .....................................................
Stated Maturity .........................................................
Subsidiary ..............................................................
Trustee .................................................................
Trust Indenture Act .....................................................
United States ...........................................................
United States Alien .....................................................
United States Government Obligations ....................................
Vice President ..........................................................
SECTION 102. Compliance Certificates and Opinions ....................................
SECTION 103. Form of Documents Delivered to Trustee ..................................
SECTION 104. Acts of Holders .........................................................
SECTION 105. Notices, Etc., to Trustee and Company ...................................
SECTION 106. Notice to Holders of Securities; Waiver .................................
SECTION 107. Language of Notices, Etc. ...............................................
SECTION 108. Conflict with Trust Indenture Act .......................................
SECTION 109. Effect of Headings and Table of Contents ................................
SECTION 110. Successors and Assigns ..................................................
SECTION 111. Separability Clause .....................................................
SECTION 112. Benefits of Indenture ...................................................
SECTION 113. Governing Law ...........................................................
SECTION 114. Legal Holidays ..........................................................
</TABLE>
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<TABLE>
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SECTION 115. Appointment of Agent for Service ........................................
SECTION 116. Certain Matters Relating to Currencies ..................................
ARTICLE TWO
SECURITY FORMS
SECTION 201. Forms Generally .........................................................
SECTION 202. Form of Trustee's Certificate of Authentication .........................
SECTION 203. Securities in Global Form ...............................................
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited: Issuable in Series ....................................
SECTION 302. Denominations ...........................................................
SECTION 303. Execution, Authentication, Delivery and Dating ..........................
SECTION 304. Temporary Securities and Exchange of Securities .........................
SECTION 305. Registration, Registration of Transfer and Exchange .....................
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities ........................
SECTION 307. Payment of Interest; Interest Rights Preserved ..........................
SECTION 308. Persons Deemed Owners ...................................................
SECTION 309. Cancellation ............................................................
SECTION 310. Computation of Interest .................................................
SECTION 311. Form of Certification By a Person Entitled to
Receive a Bearer Security .......................................
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture .................................
SECTION 402. Application of Trust Money ..............................................
SECTION 403. Satisfaction, Discharge and Defeasance of
Securities of any Series ........................................
</TABLE>
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<TABLE>
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default .......................................................
SECTION 502. Acceleration of Maturity; Rescission and
Annulment .......................................................
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee ..........................................
SECTION 504. Intentionally Omitted ...................................................
SECTION 505. Trustee May Enforce Claims Without Possession
of Securities or Coupons ........................................
SECTION 506. Application of Money Collected ..........................................
SECTION 507. Limitation on Suits .....................................................
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest .................................
SECTION 509. Restoration of Rights and Remedies ......................................
SECTION 510. Rights and Remedies Cumulative ..........................................
SECTION 511. Delay or Omission Not Waiver ............................................
SECTION 512. Control by Holders of Securities ........................................
SECTION 513. Waiver of Past Defaults .................................................
SECTION 514. Intentionally Omitted ...................................................
SECTION 515. Waiver of Stay or Extension Laws ........................................
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties and Responsibilities .....................................
SECTION 602. Notice of Defaults ......................................................
SECTION 603. Certain Rights of Trustee ...............................................
SECTION 604. Not Responsible for Recitals or Issuance of
Securities ......................................................
SECTION 605. May Hold Securities .....................................................
SECTION 606. Money Held in Trust .....................................................
SECTION 607. Compensation and Reimbursement ..........................................
SECTION 608. Intentionally Omitted ...................................................
SECTION 609. Corporate Trustee Required; Eligibility .................................
SECTION 610. Resignation and Removal; Appointment of
Successor .......................................................
SECTION 611. Acceptance of Appointment by Successor ..................................
SECTION 612. Merger, Conversion, Consolidation or Succession to
Business ........................................................
</TABLE>
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<TABLE>
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<S> <C>
SECTION 613. Intentionally Omitted ...................................................
SECTION 614. Appointment of Authenticating Agent .....................................
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Company to Furnish Trustee Names and Addresses
of Holders ......................................................
SECTION 702. Preservation of Information; Communications to
Holders .........................................................
SECTION 703. Reports by Trustee ......................................................
SECTION 704. Reports by Company ......................................................
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. Company May Consolidate, Etc., Only on Certain
Terms ...........................................................
SECTION 802. Successor Corporation Substituted .......................................
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of
Holders .........................................................
SECTION 902. Supplemental Indentures with Consent of Holders .........................
SECTION 903. Execution of Supplemental Indentures ....................................
SECTION 904. Effect of Supplemental Indentures .......................................
SECTION 905. Conformity with Trust Indenture Act .....................................
SECTION 906. Reference in Securities to Supplemental Indentures ......................
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium and Interest ..............................
SECTION 1002. Maintenance of Office or Agency .........................................
SECTION 1003. Money for Securities Payments to Be Held in
Trust ...........................................................
SECTION 1004. Additional Amounts ......................................................
</TABLE>
<PAGE>
<TABLE>
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<S> <C>
SECTION 1005. Corporate Existence......................................................
SECTION 1006. Maintenance of Properties ...............................................
SECTION 1007. Payment of Taxes and Other Claims........................................
SECTION 1008. Intentionally Omitted ...................................................
SECTION 1009. Intentionally Omitted ...................................................
SECTION 1010. Limitation upon Liens ..................................................
SECTION 1011. Statement as to Compliance ..............................................
SECTION 1012. Waiver of Certain Covenants .............................................
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article ................................................
SECTION 1102. Election to Redeem; Notice to Trustee ...................................
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. ......................
SECTION 1104. Notice of Redemption ....................................................
SECTION 1105. Deposit of Redemption Price .............................................
SECTION 1106. Securities Payable on Redemption Date ...................................
SECTION 1107. Securities Redeemed in Part .............................................
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article ................................................
SECTION 1202. Satisfaction of Sinking Fund Payments with
Securities ......................................................
SECTION 1203. Redemption of Securities for Sinking Fund ...............................
ARTICLE THIRTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. Purposes for Which Meetings May Be Called ...............................
SECTION 1302. Call, Notice and Place of Meetings ......................................
SECTION 1303. Persons Entitled to Vote at Meetings ....................................
SECTION 1304. Quorum; Action ..........................................................
SECTION 1305. Determination of Voting Rights; Conduct and
Adjournment of Meetings ..............................................
SECTION 1306. Counting Votes and Recording Action of Meetings .........................
</TABLE>
<PAGE>
<TABLE>
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<S> <C>
ARTICLE FOURTEEN
SUBORDINATION
Section 1401. Securities Subordinated to Senior Indebtedness...........................
Section 1402. Effectuation of Subordination by Trustee.................................
Section 1403. Knowledge of Trustee.....................................................
Section 1404. Trustee's Relation to Senior Indebtedness................................
Section 1405. Rights of Holders of Senior Indebtedness Not Impaired....................
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. Securities in Foreign Currencies ........................................
TESTIMONIUM ...................................................................................
SIGNATURES AND SEALS ..........................................................................
ACKNOWLEDGMENTS ...............................................................................
ARTICLE SIXTEEN
REPAYMENT AT THE OPTION OF SECURITYHOLDERS
Section 1601. Applicability of Article ................................................
</TABLE>
<PAGE>
INDENTURE, dated as of ________________ __, 1999, between BOEING
CAPITAL CORPORATION, a corporation duly organized and existing under the laws of
the State of Delaware (herein called the "Company"), having its principal office
at 4060 Lakewood Boulevard, 6th Floor, Long Beach, California 90808, and Bankers
Trust Company, a banking corporation duly organized and existing under the laws
of the State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance from time to time of its unsecured and
subordinated debentures, notes or other evidences of indebtedness (herein
called the "Securities"), unlimited as to principal amount, to be issued in one
or more series as in this Indenture provided.
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 or of series
thereof, 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;
(3) all accounting terms not otherwise defined herein have the meanings
assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise
herein expressly provided,
<PAGE>
the term "generally accepted accounting principles" with respect to any
computation required or permitted hereunder shall mean such accounting
principles as are generally accepted in the United States of America at
the date of such computation; 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 Six, are defined in that
Article.
"Act", when used with respect to any Holder of a Security, 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, "con-
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 Person authorized by the Trustee to
act on behalf of the Trustee to authenticate one or more series of Securities.
"Authorized Newspaper" means a newspaper. in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of the officers and/or directors of the Company
appointed by that board.
<PAGE>
"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, or, to the extent permitted by applicable law and the
Company's by-laws, the Executive Committee of 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 a particular location
specified in the Securities or this Indenture, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in such location are authorized or obligated by law to close, except as may
otherwise be provided in the form of securities of any particular series
pursuant to the provisions of this indenture.
"Capital Stock" means any and all shares, interest, participations or
other equivalents (however designated) evidencing equity ownership.
"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 the 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 at such time.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument 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" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Controller,
an Assistant Controller, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Assets" means the amount of all assets which under
generally accepted accounting principles as in effect on the date of such
balance sheet, would appear on a consolidated balance sheet of the Company and
its Subsidiaries (after deducting related depreciation, amortization, unearned
finance charges, allowance for credit losses, and other valuation reserves), but
shall not include goodwill, unamortized debt discount and expenses, corporate
organization expense, patents and trademarks.
"Consolidated Liabilities" means the amount of all liabilities which
under generally accepted accounting principles as in effect on the date of such
balance sheet, would appear on a consolidated balance sheet of the Company and
its Subsidiaries including, without limitation, the par value or involuntary
liquidation value, whichever is greater, of minority interests, if any, in
preference stock of all Subsidiaries, but not including any of the following:
redeemable preferred or preference stock, minority
<PAGE>
interests, if any, in common stock of Subsidiaries, valuation reserves
(including unearned finance charges and allowances for credit losses deducted
from assets), Capital Stock and surplus and surplus reserves of the Company,
deferred taxes, deferred investment tax credit and any Debt of the Company which
is subordinated to the Securities.
"Corporate Trust Office" means the principal office of the Trustee in
the Borough of Manhattan, The City of New York, at which at any particular time
its corporate trust business shall be administered, which office at the date of
execution of this Indenture is located at Four Albany Street, New York, New
York, 10005, Attention: Corporate Trust and Agency Services.
"corporation" includes corporations, associations, companies and
business trusts.
"coupon" means any interest coupon appertaining to a Bearer Security.
"Debt" means, with respect to any Person, all obligations for borrowed
money of such Person which in accordance with generally accepted accounting
principles shall be classified upon a balance sheet of such Person as
liabilities of such Person, including all
(a) direct Debt and other similarly monetary obligations of
such Person,
(b) obligations secured by any lien upon Property owned by
such Person or obligations created or arising under any conditional
sale, capital lease, or other title retention agreement with respect to
Property acquired by such Person, PROVIDED, HOWEVER, that Debt shall
not include any indebtedness, including purchase money indebtedness,
with respect to which a creditor has no recourse against the obligor
except recourse to specific Property the acquisition of which was
financed by or otherwise secures such indebtedness, or to the proceeds
of any sale or lease of such Property or both,
(c) obligations under agreements to pay installments of
purchase price or other like payments with respect to fixed assets not
utilized by such Person or its subsidiaries in the ordinary course of
its business, including obligations ostensibly to pay rent under which
an equity interest is to be acquired in the rented Property.
In addition, Debt shall include all Guarantees of such Person to the
extent the amount of such Guarantees is in excess of 50% of the Shareholder's
Equity of such Person.
"Defaulted Interest" has the meaning specified in Section 307.
<PAGE>
"Dollar" or "$" or any similar reference shall mean the currency of the
United States, except as may otherwise be provided in the form of Securities of
any particular series pursuant to the provisions of this Indenture.
"Event of Default" has the meaning specified in Section 501.
"Guarantees" means all obligations of any Person guaranteeing or in
effect guaranteeing any Debt or obligation or dividend of any other Person (the
"primary obligor") in any manner whether directly or indirectly, including
without limitation, all obligations incurred through an agreement, contingent or
otherwise, by such Person (a) to purchase any indebtedness or obligation or any
Property constituting security therefor, (b) to advance or supply funds (i) for
the purchase or payment of any indebtedness or obligation or (ii) to maintain
working capital, equity capital or other balance sheet condition or otherwise to
advance or make available funds for the purchase or payment of any indebtedness
or obligation, (c) to purchase Property, securities or services primarily for
the purpose of assuring the owner of any indebtedness or obligation of the
ability of the primary obligor to make payment of the indebtedness or obligation
or (d) otherwise to assure the owner of the indebtedness or obligation of the
primary obligor against loss in respect thereof. Obligations of the Company or
its Subsidiaries to acquire receivables in the ordinary course of business shall
not be deemed "Guarantees" of the indebtedness of the primary obligor under such
receivables.
"Holder", when used with respect to any Security, means in the case of
a Registered Security the Person in whose name the 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, means 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.
"interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, means interest
payable after Maturity, and, when used with respect to a security which provides
for the payment of Additional Amounts, shall include such Additional Amounts as
provided in Section 1004.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Lien" means any interest in Property securing an obligation owed to,
or a claim by, a Person other than the owner of the Property, whether such
interest is based on the common law, statute or contract (but excluding a
landlord's statutory lien for rent not yet due), and including, but not limited
to, the security interest lien arising from a mortgage, encumbrance, pledge,
conditional sale or trust receipt or a lease, consignment or bailment
<PAGE>
for security purposes. The term "Lien" shall include reservations, exceptions,
encroachments, easements, rights-of-way, covenants, conditions, restrictions,
leases and other title exceptions and encumbrances affecting Property. For the
purpose of this Indenture, the Company or a Subsidiary shall be deemed to be the
owner of any Property which it has acquired or holds subject to a conditional
sale agreement, capital lease or other arrangement pursuant to which title to
the Property has been retained by or vested in some other Person for security
purposes.
"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, request for redemption or
otherwise.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board, the President or a Vice President, and by the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, 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 an
employee of or counsel for the Company, or other counsel acceptable 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 for whose payment or redemption 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
thereto appertaining; PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to
this Indenture provision therefor satisfactory to the Trustee has been
made; and
(iii) Securities which hare 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
<PAGE>
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 been given any request,
demand, authorization, direction, notice, consent or waiver hereunder or are
present at a meeting of Holders of Securities for quorum purposes, the principal
amount of an Original Issue Discount Security that may be counted in making such
determination and that shall be deemed to be Outstanding for such purposes shall
be equal to the amount of the principal thereof that could be declared to be due
and payable pursuant to the terms of such Original Issue Discount Security at
the time the taking of such action by the Holders of such requisite principal
amount is evidenced to the Trustee as provided in Section 104(a), and, PROVIDED
FURTHER, that Securities owned beneficially by the Company or any other obligor
upon the Securities or any Affiliate of the Company or such other obligor, other
than Securities purchased in connection with the distribution or trading
thereof, shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee 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 pledges
is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor.
"Paying Agent" means any Person, which may include the Company,
authorized by the Company to pay the principal of (and premium, if any) or
interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, limited liability company,
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 any
series, means the place or places where the principal of (and premium, if any)
and interest on the Securities of that series are payable as specified as
contemplated by Section 301.
"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, as the case may be.
<PAGE>
"Property" means any interest in any kind of property or asset, whether
real, personal or mixed, or tangible or intangible.
"Redemption Date", when used with respect to any Security to be
redeemed, 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" means any Security established pursuant to
Section 201 which is registered in the Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of any series means the date specified for
that purpose as contemplated by Section 301.
"Responsible Officer", when used with respect to the Trustee, means any
officer within Corporate Trust and Agency Services (or any successor group of
the Trustee) including any managing director, any vice president, any assistant
treasurer, any assistant vice president, any assistant secretary, any other
officer or assistant officer of the Trustee customarily performing functions
similar to those performed by the persons who at the time shall be such
officers, respectively, or to whom any corporate trust matter is referred at the
Trustee's Corporate Trust Office because of his knowledge of and familiarity
with the particular subject.
"Security" or "Securities" means any Security or Securities
authenticated and delivered under this Indenture.
"Security Register", "Security Registrar" and "Co-Security Registrar"
have the respective meanings specified in Section 305.
"Senior Indebtedness" means all of the indebtedness of, or
guaranteed by, the Company for borrowed money (including the principal of,
premium, if any, or interest on any such borrowed money and any commitment
fees for unborrowed amounts which, if borrowed, would constitute Senior
Indebtedness), whether currently outstanding or hereafter incurred, unless,
under the instrument evidencing the same or under which the same is
outstanding, it is expressly provided that such indebtedness is subordinate
to other indebtedness and obligations of the Company.
"Shareholder's Equity" of any Person shall mean the shareholder's
equity appearing on the balance sheet of such Person as determined under
generally accepted accounting principles.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of 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.
<PAGE>
"Subordinated Indebtedness" shall mean the Securities and all other
indebtedness of, or guaranteed by, the Company whether or not outstanding as
of the date of this Indenture, which is by its terms made subordinate and
junior in right of payment to all Senior Indebtedness.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other Subsidiaries
For the purposes of this definition, 'voting stock" means stock which ordinarily
has 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.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
with respect to one or more series of Securities pursuant to the applicable
provision of this Indenture, and thereafter "Trustee" shall mean or include each
Person who is then a Trustee hereunder, and if at any time there is more than
one such Person, "Trustee" as used with respect to the Securities of any series
shall mean the Trustee with respect to Securities of that series.
"Trust Indenture Act" means the Trust Indenture Act of 1939, as
amended, and any reference herein to the Trust Indenture Act or a particular
provision thereof shall mean such Act or provision, as the case may be, as
amended or replaced from time to time or as supplemented from time to time by
rules or regulations adopted by the Commission under or in furtherance of the
purposes of such Act or provision, as the case may be.
"United States" means the United States of America (including the
States and the District of Columbia), its territories and possessions and other
areas subject to its jurisdiction.
"United States Alien" means any Person who, for United States Federal
income tax purposes, is a foreign corporation, a non-resident alien individual,
a non-resident alien fiduciary of a foreign estate or trust, or a foreign
partnership one or more of the members of which is, for United States Federal
income tax purposes, a foreign corporation, a non-resident alien individual or a
non-resident alien fiduciary of a foreign estate or trust.
"U.S. Depositary" or "Depositary" means, with respect to any Security
issuable or issued in the form of one or more global Securities, the Person
designated as U.S. Depository or Depositary by the Company in or pursuant to
this Indenture, which Person must be, to the extent required by applicable law
or regulation, a clearing agency registered under the Securities Exchange Act of
1934, as amended, and, if so provided with respect to any Security, any
successor to such Person. If at any time there is more than one such Person,
"U.S. Depositary" or "Depositary" shall mean, with respect to any Securities,
the qualifying entity which has been appointed with respect to such Securities.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
guaranteed as a full faith and credit obligation by the United States which, in
either case, are not callable or redeemable at the
<PAGE>
option of the issuer thereof, and shall also include a depository receipt issued
by a bank (as defined in Section 3(a)(2) of the Securities Act of 1933, as
amended) as custodian with respect to any such U.S. Government Obligations or a
specific payment of or interest on any such U.S. Government Obligations held by
such custodian for the account of the holder of such 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 U.S.
Government Obligations or the specific payment of principal of or interest on
the U.S. Government Obligations evidenced by such depository receipt.
"Vice President", when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
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 shall include
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition 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 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 covenant
or condition 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.
<PAGE>
SECTION 103. FORM OF DOCUMENTS DELIVERED TO TRUSTEE.
In any ease 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 with respect 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 a certificate or opinion of, or
representations by, counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel 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 with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise or reasonable care should
know, that the certificate or opinion or representations with respect 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.
<PAGE>
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 may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent 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 may, alternatively, be embodied in and evidenced by the record of
Holders of Securities voting in favor thereof, either in person or by proxies
duly appointed in writing, at any meeting of Holders of Securities duly called
and held in accordance with the provisions of Article Thirteen, 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
and 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 (subject to
Section 601) conclusive in favor of the Trustee and 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 1306.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Registered Securities and the principal amount and
serial numbers of Registered Securities held by any Person, and the date of
holding the same, shall be proved by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, 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
<PAGE>
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.
(e) The fact and date of execution of any such instrument or writing,
the authority of the Person executing the same and the principal amount and
serial numbers of Bearer Securities held by the Person so executing such
instrument or writing and the date of holding the same may also be proved in any
other manner which the Trustee deems sufficient; and the Trustee may in any
instance require further proof with respect to any of the matters referred to in
this Section.
(f) If the Company shall solicit from the Holders of any Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, by Board Resolution, fix in
advance a record date for the determination of Holders of Registered Securities
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
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 Registered Securities 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 of
Registered Securities on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
(g) Any request, demand, authorization, direction, notice, consent,
election, 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 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,
election, 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,
<PAGE>
(1) the Trustee by any Holder of a Security or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: Corporate Trust and Agency Services, 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 the attention of its Secretary, at
4060 Lakewood Boulevard, 6th Floor, Long Beach, California 90808, or at
any other address previously furnished in writing to the Trustee by the
Company.
SECTION 106. NOTICE TO HOLDERS SECURITIES; WAIVER.
Except as otherwise expressly provided herein or in the form of
Securities of any particular series pursuant to the provisions of this
Indenture, where this Indenture provides for notice to Holders of Securities of
any event,
(1) such notice shall be sufficiently given to Holders of
Registered Securities if in writing and mailed, first-class postage
prepaid, to each Holder of a Registered Security 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; and
(2) such notice shall be sufficiently given to Holders of
Bearer Securities if published in an Authorized Newspaper in The City
of New York and, if the Securities of such series are then listed on a
stock exchange of any stock exchange outside the United States, in an
Authorized Newspaper in such city as the Company shall advise the
Trustee in writing that such exchange so requires, on a Business Day at
least twice, the first such publication to be not earlier than the
earliest date and not later than the latest date prescribed for the
giving of such notice.
In ease by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder. In any ease
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 of a Registered Security shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the sufficiency
of any notice by publication to Holders of Bearer Securities given as provided
above.
In case 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
<PAGE>
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 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 any notice mailed to Holders of Registered
Securities as provided above.
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 of Securities 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. LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent,
election 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.
SECTION 108. CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with another
provision hereof which is required to be included in this Indenture by any of
the provisions of the Trust Indenture Act, such required provision shall
control.
SECTION 109. 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 110. 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 111. SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities or coupons
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.
<PAGE>
SECTION 112. BENEFITS OF INDENTURE.
Nothing in this Indenture or the Securities or coupons, express or
implied, shall give to any Person, other than the parties hereto, their
successors hereunder and the Holders of Securities and coupons, any benefit or
any legal or equitable right, remedy or claim under this Indenture.
SECTION 113. GOVERNING LAW.
This Indenture and the Securities and coupons shall be governed by and
construed in accordance with the laws of the State of New York.
SECTION 114. LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date or Stated
Maturity of any Security shall not be a Business Day at any Place of Payment,
then (notwithstanding any other provision of this Indenture or of the Securities
or coupons) payment of interest or principal (and premium, 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 or Redemption Date, or at the Stated
Maturity, provided that no interest shall accrue on the amount so payable for
the period from and after such Interest Payment Date, Redemption Date or Stated
Maturity, as the case may be.
SECTION 115. APPOINTMENT FOR SERVICE.
By the execution and delivery of this Indenture, the Company hereby
appoints the Trustee as its agent upon which process may be served in any legal
action or proceeding which may be instituted in any Federal or State court in
the Borough of Manhattan, The City of New York, arising out of or relating to
the Securities, the coupons or this Indenture. Service of process upon such
agent at the office of such agent at Four Albany Street, New York, New York
10015, Attention: Corporate Trust and Agency Services, and written notice of
said service to the Company by the Person serving the same addressed as provided
in Section 105 shall be deemed in every respect effective service of process
upon the Company in any such legal action or proceeding, and the Company hereby
submits to the jurisdiction of any such court in which any such legal action or
proceeding is so instituted. Such appointment shall be irrevocable so long as
the Holders of Securities or coupons shall have any rights pursuant to the terms
thereof or of this Indenture until the appointment of a successor by the Company
with the consent of the Trustee and such successor's acceptance of such
appointment. The Company further agrees to take any and all action, including
the execution and filing of any and all such documents and instruments, as may
be necessary to continue such designation and appointment of such agent or
successor.
<PAGE>
By the execution and delivery of this Indenture, Bankers Trust Company
hereby agrees to act as such agent and undertakes promptly to notify the Company
of receipt by it of service of process in accordance with this Section.
ARTICLE TWO
SECURITY FORMS
SECTION 201. FORMS GENERALLY.
The Registered Securities, if any, of each series and the Bearer
Securities, if any, of each series and related coupons, if any, and temporary
global Securities shall be in the form established by or pursuant to a Board
Resolution or in one or more indentures supplemental hereto, in each case with
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture, and may have such letters, numbers
or other marks of identification and such legends or endorsements placed thereon
as may be required to comply with the rules of any securities exchange or as
may, consistently herewith, be determined by the officers executing such
Securities or coupons, as evidenced by their execution of the Securities or
coupons. If the forms of Securities or coupons of any series (or any such
temporary global Security) are established by action taken pursuant to a Board
Resolution, a copy of an appropriate record of such action 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 Company Order contemplated by Section
303 for the authentication and delivery of such Securities or coupons.
The Trustee's certificates of authentication shall be in substantially
the form set forth in this Article.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities. the Securities of each series shall be issuable in
registered form without coupons. If so provided as contemplated by Section 301,
the Securities of a series also shall be issuable in bearer form, with or
without interest coupons attached.
The definitive Securities and coupons, if any, shall be printed,
lithographed or engraved on steel engraved borders or may be produced in any
other manner, all as determined by the officers executing such Securities, as
evidenced by their execution of such Securities or coupons.
SECTION 202. FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
The Trustee's certificate of authentication shall be in substantially
one of the following forms:
<PAGE>
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
________________________________ OR ________________________________
AS TRUSTEE AS TRUSTEE
By:_____________________________
AS AUTHENTICATING AGENT
By:_____________________________ By:_____________________________
AUTHORIZED OFFICER AUTHORIZED OFFICER
SECTION 203. SECURITIES IN GLOBAL FORM.
If Securities of a series are issuable in global form, any such
Security may provide that it or any number of such Securities shall represent
the aggregate amount of all Outstanding Securities of such series (or such
lesser amount as is permitted by the terms thereof) from time to time endorsed
thereon and may also provide that the aggregate amount of Outstanding Securities
represented thereby may from time to time be increased or reduced to reflect
exchanges. Any endorsement of any Security in global form to reflect the amount,
or any increase or decrease in the amount, or changes in the rights of Holders,
of Outstanding Securities represented thereby shall be made in such manner and
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered pursuant to Section 303 or 304 with respect thereto. 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 a Security in global form shall be in writing but need not be
accompanied by or contained in an Officer's Certificate and need not be
accompanied by an Opinion of Counsel.
Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of and any
premium and interest on any Security in permanent global form shall be made to
the Person or Persons specified therein.
Notwithstanding the provisions of Section 308 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, the Person or Persons specified pursuant to
Section 301.
<PAGE>
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 may be issued in one or more series. There shall be
established in or pursuant to a Board Resolution, and set forth in an Officers'
Certificate, or established in one or more indentures supplemental hereto:
(l) the title of the Securities of the series (which shall
distinguish the Securities of the series from Securities of all other
series);
(2) any limit upon the aggregate principal amount of the
Securities of the series which 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 or 1107
and except for any Securities which, pursuant to Section 303, are
deemed never to have been authenticated and delivered hereunder);
(3) whether such Securities are to be issuable as Registered
Securities, as Bearer Securities or alternatively as Bearer Securities
and Registered Securities, and whether the Bearer Securities are to be
issuable with coupons, without coupons or both, and any restrictions
applicable to the offer, sale or delivery of the Bearer Securities and
the terms, if any, upon which Bearer Securities may be exchanged for
Registered Securities and vice versa;
(4) the Person to whom any interest on any Registered Security
of the series shall be payable if other than the Person in whose name
that Registered Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest and 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;
(5) the date or dates, or the method or methods, if any, by
which such date or dates shall be determined, on which the principal of
such Securities is payable;
(6) the rate or rates at which such Securities shall bear
interest, if any or the method or methods, if any, by which such rate
or rates are to be determined,
<PAGE>
the date or dates, if any, from which such interest shall accrue or the
method or methods, if any, by which such date or dates are to be
determined, the Interest Payment Dates, if any, on which such interest
shall be payable and the Regular Record Date, if any, for the interest
payable on Registered Securities on any Interest Payment Date, whether
and under what circumstances Additional Amounts on such Securities or
any of them shall be payable, the notice, if any, to Holders regarding
the determination of interest on a floating rate Security and the
manner of giving such notice, and the basis upon which interest shall
be calculated if other than that of a 360-day year of twelve 30-day
months;
(7) the place or places where the principal of (and premium,
if any) and interest on or Additional Amounts, if any, on Securities of
the series shall be payable, any of such Securities that are Registered
Securities may be surrendered for registration of transfer, any of such
Securities may be surrendered for exchange and notices or demands to or
upon the Company in respect of such Securities and this Indenture may
be served; the extent to which, or the manner in which, any interest
payment on a global Security on an Interest Payment Date, will be paid
and the manner in which any principal of or premium, if any, on any
global Security will be paid;
(8) the period or periods within which, the price or prices at
which and the terms and conditions upon which Securities of the series
may be redeemed, in whole or in part, at the option of the Company;
(9) the obligation, if any, of the Company to redeem or
purchase Securities of the series pursuant to any sinking fund or
analogous provisions or at the option of a Holder thereof and the
period or periods within which, the price or prices at which and the
terms and conditions upon which Securities of the series shall be
redeemed or purchased, in whole or in part, pursuant to such
obligation, and any provisions for the remarketing of such Securities
so redeemed or purchased;
(10) if Bearer Securities of the series are to be issuable,
whether interest in respect of any portion of a temporary Bearer
Security in global form (representing all of the Outstanding Bearer
Securities of the series) payable in respect of an Interest Payment
Date prior to the exchange of such temporary Bearer Security for
definitive Securities of the series shall be paid to any clearing
organization with respect to the portion of such temporary Bearer
Security held for its account and, in such event. the terms and
conditions (including any certification requirements) upon which any
such interest payment received by a clearing organization will be
credited to the Persons entitled to interest payable on such Interest
Payment Date;
(11) the denominations in which Registered Securities of the
series. if any, shall be issuable if other than denominations of $1,000
and any integral
<PAGE>
multiple thereof, and the denominations in which Bearer Securities of
the series, if any, shall be issuable if other than the denomination of
$5,000;
(12) 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;
(13) the currency or currencies, including composite
currencies, in which payment of the principal of (and premium, if any)
and interest on, and Additional Amounts in respect of, the Securities
of the series shall be payable (if other than the currency of the
United States of America), and the particular provisions applicable
thereto and, if applicable, the amount of Securities of the series
which entitles the Holder of a Security of the series or proxy to one
vote for purposes of Section 1305(c);
(14) any addition to, or modification or deletion of, any
Event of Default or any covenant of the Company specified herein with
respect to the Securities of the series;
(15) if the principal of (and premium, if any) or interest,
and Additional Amounts in respect of, if any, on such Securities are to
be payable, at the election of the Company or a Holder thereof, in a
coin or currency, including composite currencies, other than that in
which the Securities are stated to be payable, the period or periods
within which, 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 in which such Securities are denominated or stated
to be payable and the currency in which such Securities or any of them
are to be so payable;
(16) whether the amount of payments of principal of, any
premium or interest on or any Additional Amounts with respect to, such
Securities may be determined with reference to an index, formula, or
other method or methods (which index, formula or method or methods may
be based, without limitation, on one or more currencies, commodities,
equity indices or other indices), and, if so, the terms and conditions
upon which and the manner in which such shall be determined and paid or
payable;
(17) if any such Securities are to be issuable in global form
and are to be issuable in definitive form (whether upon original issue
or upon exchange of a temporary Security) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and terms of such certificates, documents or conditions;
<PAGE>
(18) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502;
(19) the application, if any, of Section 403 to the Securities
of the series;
(20) if any such Securities are to be issuable in global form,
when any of such Securities are to be issuable in global form and (i)
whether beneficial owners of interests in any such global Security may
exchange such interests for Securities of the same series and of like
tenor and of any authorized form and denomination and the circumstances
under which any such exchanges may occur, if other than in the manner
specified in Section 305, and (ii) the name of the Depositary or U.S.
Depositary, as the case may be, to any global Security;
(21) if there is more than one Trustee, the identity of the
Trustee, and if not the Trustee, the identity of each Security
Registrar, Paying Agent or Authenticating Agent with respect to such
Securities.
(22) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture).
All Securities of any one series and all coupons, if any, appertaining
to Bearer Securities of such series shall be substantially identical except as
to currency of payments due thereunder, denomination and the rate or rates of
interest, or method of determining the rate of interest, if any, Maturity, and
the date from which interest, if any, shall accrue and except as may otherwise
be provided by the Company in or pursuant to the Board Resolution and set forth
in the Officers' Certificate or in any indenture or indentures supplemental
hereto pertaining to such series of Securities. The terms of the Securities of
any series may provide, without limitation, that the Securities shall be
authenticated and delivered by the Trustee upon receipt of a Company Order by
the Trustee pursuant to Section 303 on original issue form time to time upon
written order of persons designated in the Officers' Certificate or supplemental
indenture and that such persons are authorized to determine, consistent with
such Officers' Certificate or any applicable supplemental indenture, such terms
and conditions of the Securities of such series as are specified in such
Officers' Certificate or supplemental indenture. All securities of any one
series need not be issued at the same time, and unless otherwise so provided by
the Company, a series may be reopened for issuance of additional Securities of
such series or to establish additional terms of such series of Securities.
If any of the terms of the series are established by action taken
pursuant to a Board Resolution, a copy of an appropriate record of such action
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 of the series.
<PAGE>
SECTION 302. DENOMINATIONS.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, the Registered Securities of each series shall be
issuable in denominations of $1,000 and any integral multiple thereof and the
Bearer Securities of each series, if any, shall be issuable in the denomination
of $5,000. or in such other denominations and amounts as may from time to time
be fixed by or pursuant to a Board Resolution.
SECTION 303. EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the Securities
may be manual or facsimile. Coupons shall bear the facsimile signature of the
Treasurer or any Assistant Treasurer of the Company.
Securities and 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.
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 coupons appertaining thereto, executed by the Company to the Trustee or its
designated agent for authentication by the Trustee, 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, a
Bearer Security may be delivered only outside the United States and only if the
Trustee shall have received from the person entitled to receive such Bearer
Security a certificate in the form required by Section 31 1, 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 or permanent global
Security first becomes exchangeable for such Bearer Security in accordance with
the terms of such temporary Security or permanent global Security and this
Indenture. If any Security shall be represented by a permanent global 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
or 307, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled.
<PAGE>
If the forms or terms of the Securities of the series and any related
coupons have been established in or pursuant to one or more Board Resolutions as
permitted by Sections 201 and 301, 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
Section 601) shall be fully protected in relying upon, an Opinion of Counsel
stating,
(a) if the forms of such Securities and coupons, if any, have
been established by or pursuant to Board Resolution as permitted by
Section 201, that such forms have been established in conformity with
the provisions of this Indenture;
(b) if the terms of such Securities and any coupons have been
established by or pursuant to Board Resolution as permitted by Section
301, that such terms have been established in conformity with the
provisions of this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto, when authenticated and delivered by the Trustee
and issued by the Company in the manner and subject to any conditions
specified in such Opinion of Counsel, will constitute valid and legally
binding obligations of the Company, enforceable in accordance with
their terms, subject, as to enforcement,. to bankruptcy, insolvency,
reorganization and other laws of general applicability relating to or
affecting the enforcement of creditors' rights and to general equity
principles.
(d) all laws and requirements in respect of the execution and
delivery by the Company of such Securities and coupons, if any, have
been complied with; and
(e) this Indenture has been qualified under the Trust
Indenture Act.
If such forms 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 or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security (including any temporary or definitive Bearer Security in
global form) shall be dated as of the date specified as contemplated by Section
301.
In authenticating such Securities, and accepting the additional
responsibilities under this Indenture in relation to such Securities and any
coupons appertaining thereto, the Trustee shall also be entitled to receive
annually, and shall be fully protected in relying upon, an Officers' Certificate
stating that, to the best knowledge of the Persons
<PAGE>
executing such certificate, no event which is, or after notice or lapse of time
would become, an Event of Default with respect to any of the Securities shall
have occurred and be continuing.
No Security or coupon appertaining thereto shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein executed by the Trustee by manual signature, 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. Except as permitted by
Section 306 or 307, 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,
it shall not be necessary to deliver an Opinion of Counsel and an Officers'
Certificate at the time of issuance of each Security, but such opinion and
certificate, with appropriate modifications, shall be delivered at or before the
time of issuance of the first Security of such series. After any such first
delivery, any separate request by the Company that the Trustee authenticate
Securities of such series for original issue will be deemed to be a
certification by the Company that all conditions precedent provided for in this
Indenture relating to authentication and delivery of such Securities continue to
have been complied with.
SECTION 304. TEMPORARY SECURITIES AND EXCHANGE OF SECURITIES.
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 evidenced by their execution of such Securities. In
the case of Bearer Securities of any series, such temporary Securities may be in
global form, representing all of the Outstanding Bearer Securities of such
series.
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 unmatured coupons
appertaining thereto) the Company shall execute and the Trustee shall
authenticate and
<PAGE>
deliver in exchange therefor (at an office or agency of the Company in the case
of Bearer Securities) a like principal amount of definitive Securities of the
same series of authorized denominations and of like tenor; PROVIDED, HOWEVER,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and PROVIDED, FURTHER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Bearer Security unless
the Trustee shall have received from the person entitled to receive the
definitive Bearer Security a certificate in the form required by Section 311.
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.
SECTION 305. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at the office of the Security
Registrar designated pursuant to this Section 305 or Section 1002 a register
(being the combined register of the Security Registrar and all Co-Security
Registrars and sometimes collectively referred to 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.
Upon surrender for registration of transfer of any Registered Security
of any series at the office or agency in a Place of Payment maintained for such
purpose for such 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 like tenor and aggregate principal amount.
At the option of the Holder, Registered Securities of any series may be
exchanged for Registered Securities of the same series containing identical
terms and provisions of any authorized denominations and of like tenor and
aggregate principal amount, 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 Securities which the Holder making the exchange is
entitled to receive.
At the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series containing identical
terms and provisions, of any authorized denominations and of like tenor and
aggregate principal amount, 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, such exchange may be effected if the Bearer
Securities are accompanied by payment in funds acceptable to the Company and the
Trustee 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 be furnished to them such security or indemnity as they
may require to
<PAGE>
save each of them and any Paying Agent harmless. If 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 exchange
for a Registered Security of the same series 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 date for payment of Defaulted Interest, such Bearer
Security shall be surrendered without the coupon relating to such Interest
Payment Date or proposed date of payment, as the case may be (or, if such coupon
is so surrendered with such Bearer Security, such coupon shall be returned to
the person so surrendering the Bearer Security), 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.
If expressly provided with respect to the Securities of any series, at
the option of the Holder, Registered Securities of such series may be exchanged
for Bearer Securities upon such terms and conditions as may be provided with
respect to such series.
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 provided in or
pursuant to this Indenture, any global Security shall be exchangeable for
definitive Securities only if (i) the Depositary is at any time unwilling,
unable or ineligible to continue as Depositary and a successor depositary is
not appointed by the Company within 60 days of the date the Company is so
informed in writing, (ii) the Company executes and delivers to the Trustee a
Company Order to the effect that such global Security shall be so
exchangeable, or (iii) an Event of Default has occurred and is continuing
with respect to the Securities. If the beneficial owners of interests in a
global Security are entitled to exchange such interests for definitive
Securities, then without unnecessary delay but in any event not later than
the earliest date on which such interests may be so exchanged, the Company
shall deliver to the Trustee definitive Securities in such form and
denominations as are required by or pursuant to this Indenture, and of the
same series, containing identical terms and in aggregate principal amount
equal to the principal amount of such global Security, executed by the
Company. On or after the earliest date on which such interests may be so
exchanged, such global Security shall be surrendered from time to time by the
U.S. Depositary or such other Depositary as shall be specified in the Company
Order with respect thereto, and in accordance with instructions given to the
Trustee and the U.S.
<PAGE>
Depositary or such other Depositary, as the case may be (which instructions
shall be in writing, but need not be contained in or accompanied by an
Officers' Certificate or be accompanied by an Opinion of Counsel), 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 in part, for
definitive Securities as described above without charge. The Trustee shall
authenticate and make available for delivery, in exchange for each portion of
such surrendered global Security, a like aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such global Security to be exchanged, which
(unless such Securities are not issuable both as Bearer Securities and as
Registered Securities, in which case the definitive Securities exchanged for
the global Security shall be issuable only in the form in which the
Securities are issuable, as provided in or pursuant to this Indenture) shall
be in the form of Bearer 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 of the same series to be redeemed and
ending on the relevant Redemption Date; and provided, further, that (unless
otherwise provided in or pursuant to this Indenture) no Bearer Security
delivered in exchange for a portion of a global Security shall be mailed or
otherwise delivered to any location in the United States. Promptly following
any such exchange in part, such global Security shall be returned by the
Trustee to such Depositary or the U.S. Depositary, as the case may be, or
such other Depositary of U.S. Depositary referred to above in accordance with
the instructions of the Company referred to above. If a Registered Security
is issued in exchange for any portion of a global Security after the close of
business at the office or agency of such global Security where such exchange
occurs on or after (i) any Regular Record Date for such Security and before
the opening of business at such office or agency on the next Interest Payment
Date, or (ii) any Special Record Date for such Security and before the
opening of business at such office or agency on the related proposed date for
payment of interest or Default Interest, as the case may be, interest shall
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 shall 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
global Security shall be payable in accordance with the provisions of this
Indenture.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the 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 Trustee) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
<PAGE>
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 or 1107 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Securities of any series during a period of 15 days immediately
preceding the date notice is given identifying the serial numbers of the
Securities of that series called for redemption and ending at the close of
business on (A) if Securities of the series are issuable only as Registered
Securities, the day of the mailing of the relevant notice of redemption and (B)
if Securities of the series are issuable as Bearer Securities, the day of the
first publication of the relevant notice of redemption or, if Securities of the
series 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 the unredeemed portion of any Security being redeemed
in part. 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, PROVIDED that such Registered Security shall be immediately
surrendered for redemption with written instruction for payment consistent with
the provisions of this Indenture.
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, the Company shall execute and
the Trustee shall authenticate and deliver in exchange therefor a new Security
of the same series containing identical terms and provisions and of like tenor
and principal amount 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 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 containing
identical terms and provisions and of like tenor and principal amount 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>
Notwithstanding the foregoing provisions of this Section 306, in case
any 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, pay such Security or coupon; provided, however, that
payment of principal of, any premium or interest on or any Additional Amounts
with respect to any Bearer Securities shall, except as otherwise provided in
Section 1002, be payable only at an office or agency for such Securities located
outside the United States and, unless otherwise provided in or pursuant to this
Indenture, any interest on Bearer Securities and any Additional Amounts with
respect to such interest 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 any such new Security ant coupons, if any, 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.
Unless otherwise provided as contemplated by Section 301 with respect
to any series of Securities, interest on any Registered Security which 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. 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 [merest 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.
<PAGE>
Any interest on any Registered Security of any series which 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
Holder 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, and at the same time
the Company shall deposit with the Trustee an amount of money 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 prior to the date of the proposed payment, such money when
deposited to be held in trust for the benefit of the Persons entitled
to such Defaulted Interest as in this Clause provided. Thereupon the
Trustee shall fix Record Date for the payment of such Defaulted
Interest which shall Se 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 the address
of such Holder 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 so mailed, 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 folder of such coupon when due in accordance with the provisions
of this Indenture.
<PAGE>
(2) The Company may make payment of any Defaulted Interest on
the 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.
Subject to the foregoing provisions of this Section, 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. 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 Registered Security for the purpose of receiving payment of
principal of (and premium, if any) and (subject to Section 307) interest 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.
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.
SECTION 309. CANCELLATION.
All Securities and coupons surrendered for payment, redemption,
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 shall be promptly cancelled by the Trustee. 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 all Securities so delivered shall be promptly cancelled
by the Trustee. 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. All cancelled Securities and coupons held by the
Trustee shall be destroyed, and the Trustee shall promptly deliver a certificate
of destruction to the Company.
<PAGE>
SECTION 310. COMPUTATION OF INTEREST.
Except as otherwise specified as contemplated by Section 301 for
Securities of any series, interest on the Securities of each series shall be
computed on the basis of a 360-day year of twelve 30-day months.
SECTION 311. FORM OF CERTIFICATION BY A PERSON ENTITLED TO RECEIVE A BEARER
SECURITY.
Whenever any provision of this Indenture or the forms of Security
contemplates that certification be given by a Person entitled to receive a
Bearer Security, such certification shall be provided substantially in the form
of the following certificate, with only such changes as shall be approved by the
Company:
[FORM OF CERTIFICATE TO BE GIVEN BY
PERSON ENTITLED TO RECEIVE BEARER SECURITY]
CERTIFICATE
-------------------------
This is to certify that the above-captioned Security is not being
acquired by or on behalf of a United States person, or for offer to resell or
for resale to a United States person, or, if a beneficial interest in the
Security is being acquired by a United States person, that such person is a
financial institution or is acquiring through a financial institution and that
the Security is held by a financial institution that has agreed in writing to
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. If this
certificate is being provided by a clearing organization. it is based on
statements provided to it by its member organizations. As used herein, ' United
States" means the United States of America (including the States and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction, and "United States person" means any citizen or resident of
the United States, any corporation, partnership or other entity created or
organized in or under the laws of the United States or any political subdivision
thereof and any estate or trust the income of which is subject to United States
Federal income taxation regardless of its source. If the undersigned is a
dealer, the undersigned agrees to obtain a similar certificate from each person
entitled to delivery of any of the above-captioned Securities in bearer form
purchased from it; PROVIDED, HOWEVER, that, if the undersigned has actual
knowledge that the information contained in such a certificate is false, the
undersigned will not deliver a Security in temporary or definitive bearer form
to the person who signed such certificate notwithstanding the delivery of such
certificate to the undersigned.
We undertake to advise you by telex if the above statement as to
beneficial ownership is not correct on the date of delivery of the
above-captioned Securities in bearer form as to all of such Securities.
<PAGE>
We understand that this certificate 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......
........................................
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Securities herein expressly provided for, and any right to receive Additional
Amounts, as provided in Section 1004), and the Trustee, at the expense of the
Company, shall execute proper instruments acknowledging satisfaction and
discharge of this indenture, when
(1) either
(A) all Securities theretofore authenticated and
delivered and all coupons 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 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 1107, and (iv) Securities and
coupons 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 such Securities 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
<PAGE>
(iii) arc 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
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay and
discharge the entire indebtedness on such Securities and
coupons not theretofore delivered to the Trustee for
cancellation, for principal (and premium, if any) and interest
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;
(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 have been complied with.
In the event there are Securities of two or more series hereunder, the
Trustee shall be required to execute an instrument acknowledging satisfaction
and discharge of this Indenture only if requested to do so with respect to
Securities of all series as to which it is Trustee and if the other conditions
thereto are met. In the event there are two or more Trustees hereunder, then the
effectiveness of any such instrument shall be conditioned upon receipt of such
instruments from all Trustees hereunder.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 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.
<PAGE>
SECTION 402. APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 1003, all
money deposited with the Trustee pursuant to Section 401 or 403 shall be held in
truest 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 for whose payment such money has been deposited
with the Trustee.
SECTION 403. SATISFACTION. DISCHARGE AND DEFEASANCE OF SECURITIES OF ANY
SERIES.
If this Section 403 is specified, as contemplated by Section 301, to be
applicable to Securities of any series, then notwithstanding Section 401, (i)
the Company shall be deemed to have paid and discharged the entire indebtedness
on all the Outstanding Securities of any such series; (ii) the provisions of
this Indenture as it relates to such Outstanding Securities shall no longer be
in effect (except as to the rights of Holders of Securities to receive, from the
trust fund described in subparagraph (1) below, payment of the principal of (and
premium, if any) and any installment of principal of (and premium, if any) or
interest on such Securities on the Stated Maturity of such principal or
installment of principal or interest or any mandatory sinking fund payments or
analogous payments applicable to the Securities of that series on the day on
which such payments are due and payable in accordance with the terms of the
Indenture and of such Securities, the Company's obligations with respect to such
Securities under Sections 304, 305, 306, 1002 and 1004 and the rights, powers,
trusts, duties and immunities of the Trustee hereunder, including those under
Section 607 hereof); and (iii) the Trustee, at the expense of the Company,
shall, upon Company Request, execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Securities of
such series, with reference to this Section 403, the Company
has deposited or caused to be deposited with the Trustee (or
another trustee satisfying the requirements of Section 609)
irrevocably (but subject to the provisions of Section 402 and
the last paragraph of Section 1004), as trust funds in trust,
specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of the Securities of that series,
(X) lawful money of the United States in an amount, or (Y)
U.S. Government Obligations which through the payment of
interest and principal in respect thereof in accordance with
their terms will provide not later than the opening of
business on the due dates of any payment referred to in clause
(i) or (ii) of this subparagraph (l)(A) lawful money of the
United States in an amount, or (Z) a combination thereof,
sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written
certification
<PAGE>
thereof delivered to the Trustee, to pay and discharge (i) the
principal of (and premium, if any) and each installment of
principal (and premium, if any) and interest on the
Outstanding Securities of that series 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 Securities of such series on the day on which
such payments are due and payable in accordance with the terms
of this Indenture and of such Securities; PROVIDED, HOWEVER,
the Company shall not make or cause to be made the deposit
provided for by this subparagraph (A) unless the Company shall
have delivered to the Trustee an Opinion of Counsel to the
effect that either (i), as a result of such deposit and the
related exercise of the Company's option under this Section
403, registration will not be required under the Investment
Company Act of 1940, as amended, by the Company, the trust
funds representing such deposit or the Trustee or (ii) all
necessary registrations under said Act have been effected; or
(B) the Company has properly fulfilled such other
means of satisfaction and discharge as is specified, as
contemplated by Section 301, to be applicable to the
Securities of such series;
(2) the Company has paid or caused to be paid all other sums
payable with respect to the Outstanding Securities of such series;
(3) such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other agreement or
instrument to which the Company is a party or by which it is bound;
(4) no Event of Default or event which with the giving of
notice or lapse of time, or both, would become an Event of Default with
respect to the Securities of that series shall have occurred and be
continuing on the date of such deposit and no Event of Default under
Section 501(5) or Section 501(6) or event which with the giving of
notice or lapse of time, or both, would become an Event of Default
under Section 501(5) or Section 501(6) shall have occurred and be
continuing on the 91st day after such date;
(5) the Company has delivered to the Trustee an Opinion of
Counsel to the effect that (a) the Company has received from, or there
has been published by, the Internal Revenue Service a ruling, or (b)
since the date of this Indenture there has been a change in applicable
Federal income tax law, in either case to the effect that, and based
thereon such Opinion of Counsel shall confirm that, the Holders of
Securities of such series will not recognize income, gain or loss for
Federal income tax purposes as a result of such deposit, defeasance and
discharge and will be subject to Federal income tax on the same amount
and in the same manner and at the same times, as would have been the
case if such deposit, defeasance and discharge had not occurred;
<PAGE>
(6) if the Securities of that series are then listed on any
national securities exchange, the Company shall have delivered to the
Trustee an Opinion of Counsel to the effect that such deposit,
defeasance and discharge will not cause such Securities to be delisted;
and
(7) 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 the entire indebtedness on all Outstanding Securities of
any such series have been complied with.
Any deposits with the Trustee referred to in Section 403(1)(A) above
shall be irrevocable and shall be made under the terms of an escrow trust
agreement in form and substance satisfactory to the Trustee. If any Outstanding
Securities of such series are to be redeemed prior to their Stated Maturity,
whether pursuant to any optional redemption provisions or in accordance with any
mandatory sinking fund requirement, the applicable escrow trust agreement shall
provide therefor and the Company shall make such arrangements as are
satisfactory to the Trustee for the giving of notice of redemption by the
Trustee in the name, and at the expense, of the Company.
Upon the satisfaction of the conditions set forth in this Section 403
with respect to all the Outstanding Securities of any series, the terms and
conditions of such series, including the terms and conditions with respect
thereto set forth in this Indenture, shall no longer be binding upon, or
applicable to, the Company; PROVIDED that the Company shall not be discharged
from any payment obligations in respect of Securities of such series which arc
deemed not to be under clause (iii) of the definition thereof if such
obligations continue to be valid obligations of the Company under applicable
law.
Notwithstanding the cessation, termination and discharge of all
obligations, covenants and agreements (except as provided above in this Section
403) of the Company under the Indenture with respect to any series of
Securities, the obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1004 shall survive with respect to such series of Securities.
Each supplemental indenture with respect to a series of Securities may
contain other provisions with respect to the satisfaction, discharge and
defeasance of such series, which provisions may be additional to, or in
replacement of, the provisions set forth in this Section 403.
ARTICLE FIVE
REMEDIES
<PAGE>
SECTION 501. EVENTS OF DEFAULT.
"Event of Default", wherever used herein with respect to Securities of
any series, means any one of the following events (whatever the reason for such
Event of Default and whether 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 when it 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
either at Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of a Security of that series; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with or which has expressly been
included in this Indenture solely for the benefit of series of
Securities other than that series), and continuance of such default of
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) a default under any mortgage, indenture or instrument
under which there may be issued or by which there may be secured or
evidenced any indebtedness for money borrowed by the Company (including
this Indenture), whether such indebtedness now exists or shall
hereafter be created, which default shall have resulted in such
indebtedness, in an aggregate principal amount exceeding $35,000,000
(except that such dollar amount shall not apply with respect to a
default with respect to Securities of any series), becoming or being
declared due and payable prior to the date on which it would otherwise
have become due and payable, without such indebtedness having been
discharged, or such acceleration having been rescinded or annulled, or
there having been deposited in trust a sum of money sufficient to
discharge in full such indebtedness, within a period of 20 days after
there shall have 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 and requiring the
Company to cause such indebtedness to be discharged, cause there to be
deposited
<PAGE>
in trust a sum sufficient to discharge in full such indebtedness or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; PROVIDED, HOWEVER,
that, subject to the provisions of Sections 601 and 602, the Trustee
shall not be deemed to have knowledge of such default unless either (A)
a Responsible Officer of the Trustee shall have actual knowledge of
such default or (B) the Trustee shall have received written notice
thereof from the Company, from any Holder, from the holder of any such
indebtedness or from the trustee under any such mortgage, indenture or
other instrument; PROVIDED, FURTHER, that any such event of default
shall not be deemed to have occurred so long as the Company shall
contest the validity thereof in good faith by appropriate proceedings;
or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company, or of
any substantial part of its property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
eject for a period of 60 consecutive days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
either of the foregoing to the entry of a decree or order for relief in
an involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding, or the
filing by either of the foregoing of a petition or answer or consent
seeking reorganization or relief under any applicable Federal or State
law, or the consent by either of the foregoing to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of the property of
either, or the making by either of the foregoing of an assignment for
the benefit of creditors, or the admission by either of the foregoing
in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company in furtherance of
any such action; or
(8) any other Event of Default provided in a supplemental
indenture with respect to Securities of that series.
<PAGE>
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 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 amount (or, if the
Securities of that series. are Original Issue Discount Securities, such portion
of the principal amount as may be specified in the terms of that series) of all
of 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 Holders), and upon any
such declaration such principal amount (or specified amount) 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 in this
Article provided, 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
(A) all overdue interest on all Securities of that
series,
(B) the principal of (and premium, if any, on) any
Securities of that series which have become due otherwise than
by such declaration of acceleration and interest thereon at
the rate or rates prescribed therefor in such Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate or rates
prescribed therefor 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 non-payment of the principal of Securities of
that series which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
<PAGE>
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 interest on any
Security 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 at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities and coupons, the whole amount then due and payable on
such Securities and coupons for principal (and premium, if any) and interest
and, to the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any overdue
interest, 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 sum so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon such Securities and collect the
moneys adjusted 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, 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.
<PAGE>
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
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 overdue principal 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, if the Securities of such series are Original Issue
Discount Securities, such portion of the principal amount as may be due
and payable with respect to such series pursuant to a declaration in
accordance with Section S02) (and premium, if any) and any interest
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 of Securities and coupons
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 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 of Securities and coupons, to pay to the Trustee any
amount due it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, and any other amounts due the
Trustee under Section 607.
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 or 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.
<PAGE>
SECTION 505. TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS.
All rights of action and claims under this Indenture or 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 any interest, 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 under
Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest on the Securities and
coupons 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 amounts due and payable on such Securities and coupons
for principal (and premium, if any) and interest, respectively; and
THIRD: To the payment of the remainder, if any, to the
Company, its successors or assigns or to whosoever may be lawfully
entitled to receive the same or as a court of competent jurisdiction
may direct.
SECTION 507. LIMITATION ON SUITS.
Subject to Section 508, no Holder of any Security of any series or any
related coupons 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
<PAGE>
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 Holders of any other series, 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 of 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 Section 307) interest on such Security or payment of such coupon on
the Stated Maturity or Maturities 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, subject to any determination in such proceeding, 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.
<PAGE>
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 of Securities or coupons 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, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction.
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 on any Security of such series, or
<PAGE>
(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 impair any right consequent thereon.
SECTION 514. UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security or
coupon by his acceptance thereof shall be deemed to have agreed, that any court
may in its discretion require, in any suit for enforcement of any right or
remedy under this Indenture, or in any suit against the Trustee for any action
taken, suffered or omitted by it as Trustee, the filing by any party litigant in
such suit of an undertaking to pay the costs of such suit, and that such court
may in its discretion assess reasonable costs, including reasonable attorneys'
fees, against any party litigant in such suit, having due regard to the merits
ant good faith of the claims or defenses made by such party litigant; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in principal
amount of the Outstanding Securities of any series, or to any suit instituted by
any Holder of any Security or coupon for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security or the payment of
any coupon on or after the Stated Maturity or Maturities expressed in such
Security (or, in the case of redemption, on or after the Redemption Date) or
interest on any overdue principal of any Security.
SECTION 515. 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
<PAGE>
SECTION 601. CERTAIN DUTIES AND RESPONSIBILITIES.
(a) Except during the continuance of-an Event of Default with respect
to Securities of any series,
(1) the Trustee undertakes to perform, with respect to
Securities of such series, such duties and only such duties as are
specifically set forth in this Indenture, and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may,
with respect to Securities of such series, conclusively rely, as to the
truth of the statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
be under a duty to examine the same to determine whether or not they
conform to the requirements of this Indenture.
(b) In case an Event of Default with respect to Securities of any
series has occurred and is continuing, the Trustee shall exercise, with respect
to Securities of such series, such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent man would exercise or use under the circumstances in the conduct of his
own affairs.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, EXCEPT that
(1) this Subsection shall not be construed to limit the effect
of Subsection (a) of this Section;
(2) the Trustee shall not be liable for any error or judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the
Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the
Trustee, or exercising any trust or power conferred upon the Trustee,
under this Indenture with respect to the Securities of such series; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance
<PAGE>
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.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 602. 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 by mail to
all Holders of Securities of such series entitled to receive reports pursuant to
Section 703(c), notice of all 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 on any Security of such series or in the payment of any sinking fund
installment with respect to 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 or Responsible
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Holders of Securities and coupons of such
series; and PROVIDED, FURTHER, that in the case of any default of the character
specified in Section 501(4) with respect to Securities of such series, no such
notice to Holders shall be given until at least 30 days after the occurrence
thereof. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default with respect to Securities of such series.
SECTION 603. CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 601:
(a) 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, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(c) 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 an Officers' Certificate;
<PAGE>
(d) the Trustee may consult with counsel and the written 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;
(e) 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;
(f) 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, direct ion, consent, order, bond, debenture.
note, coupon, other evidence of indebtedness 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 seem 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;
(g) 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; and
(h) except as otherwise provided in Section 501(5), the Trustee shall
not be charged with knowledge of any Event of Default with respect to the
Securities of any series for which it is acting as Trustee unless either (1) a
Responsible Officer of the Trustee assigned to the Corporate Trust and Agency
Services of the Trustee (or any successor division or department of the Trustee)
shall have actual knowledge of the Event of Default or (2) written notice of
such Event of Default shall have been given to the Trustee by the Company, any
other obligor on such Securities or by any Holder of such Securities.
<PAGE>
SECTION 604. NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) and in any coupons shall be taken as
the statements of the Company, and the Trustee or any Authenticating Agent
assumes no responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons. The Trustee or any Authenticating Agent shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 605. MAY HOLD SECURITIES.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledges of Securities and coupons and, subject
to Sections 608 and 613, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Authenticating Agent. Paying Agent,
Security Registrar or such other agent.
SECTION 606. 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 607. COMPENSATION AND REIMBURSEMENT.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (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 the 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, disbursements or advance
as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee (which for purposes of this
Section 607(c) shall include its officers, directors, employees and
agents) for, and to hold it harmless against, any loss, liability or
expense incurred without negligence or bad faith on its part, arising
out of or in connection with the acceptance or
<PAGE>
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.
The provisions of this Section 607(c) shall survive the termination of
this Indenture or the registration or removal of the Trustee.
SECTION 608. INTENTIONALLY OMITTED..
SECTION 609. CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $150,000,000 and subject to supervision or examination by Federal or
State authority. If such corporation publishes reports of condition at least
annually, pursuant to law or to the requirements of said 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 610. 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 611.
(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. If the instrument of acceptance by successor Trustee
required by Section 611 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of resignation, the
resigning Trustee may petition any court of competent jurisdiction for
the appointment of a successor Trustee with respect to the Securities
of such series.
(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:
<PAGE>
(1) the Trustee shall fail to comply with Section
608(a) 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 609 and shall fail to resign after written request
therefor by the Company or by any such Holder, 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 a Board Resolution may remove the Trustee with
respect to all Securities, or (ii) subject to Section 514, 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 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 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 at 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) and shall comply with the
applicable requirements of Section 611. 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 in accordance with the applicable requirements of Section
611, 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 required by Section 611, 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 the securities of such series.
(f) 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 by mailing
written notice of
<PAGE>
such event by first-class mail, postage prepaid, to all Holders of Registered
Securities, if any, of such series as their names and addresses appear in the
security Register and, if Securities of much series are issuable as Bearer
Securities, by publishing notice of such event once in an Authorized Newspaper
in each Place of Payment located outside the United States. 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 611. 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 so appointed 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 the 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.
(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 or 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 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
<PAGE>
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 ant
confirming to such successor Trustee all such rights, powers and trusts referred
to in paragraph (a) or (b) of this Sect ion, as the ease 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 612. 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 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 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 so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 613. INTENTIONALLY OMITTED.
<PAGE>
SECTION 614. APPOINTMENT OF AUTHENTICATING AGENT.
At any time 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 or
pursuant to Section 306, 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. 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 shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State thereof
or the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $50,000,000 and
subject to supervision or examination by Federal or State authority. If such
Authenticating Agent publishes reports of condition at least annually, pursuant
to law or to the requirements of said 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. If at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, PROVIDED such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or any further
act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof 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 may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall (i) mail written notice
of such appointment by first-class mail, postage prepaid, to all Holders of
Registered Securities, if any, of the series with respect to which such
Authenticating Agent will serve, as their names and addresses appear in the
Security Register, and (ii) if Securities of the series are issuable as Bearer
Securities, publish notice of such appointment at least once in an Authorized
Newspaper in the place where such successor
<PAGE>
Authenticating Agent has its principal office if such office is located outside
the United States. 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. 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 for its services under this Section.
The provisions of Sections 308, 604 and 605 shall be applicable to each
Authenticating Agent.
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 the Trustee's certificate of authentication, an alternate
certificate of authentication in the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
-----------------------------------
AS TRUSTEE
BY_________________________________
AS AUTHENTICATING AGENT
BY_________________________________
AUTHORIZED SIGNATORY
BY_________________________________
AUTHORIZED SIGNATORY
If all of the Securities of any series may not be originally issued at
one time, and if the Trustee does not have an office capable of authenticating
Securities upon original issuance located in a Place of Payment where the
Company wishes to have Securities of such series authenticated upon original
issuance, the Trustee, if so requested in writing (which writing need not comply
with Section 102) by the Company, shall appoint in accordance with this Section
614 an Authenticating Agent having an office in a Place of Payment designated by
the Company with respect to such series of Securities.
ARTICLE SEVEN
REPORTS BY TRUSTEE AND COMPANY
<PAGE>
SECTION 701. REPORTS BY TRUSTEE TO SECURITYHOLDERS.
Within 60 days after March 15 in each year, beginning with the March 15
following the date of this Indenture, the Trustee shall mail to the
Securityholders a brief report dated as of such reporting date in compliance
with Section 313(a) of the Trust Indenture Act of 1939. The Trustee also shall
comply with Section 313(b) of the Trust Indenture Act of 1939. The Trustee shall
also transmit by mail all reports as required by Section 313(c) of the Trust
Indenture Act of 1939. The Issuer shall promptly notify the Trustee when the
Securities are listed on any stock exchange.
SECTION 702. REPORTS.
The Issuer shall comply with the provisions of Section 314(a) of the
Trust Indenture Act of 1939 and shall file with the Trustee within 45 days after
it files them with the Commission and in any event no later than 60 days after
the end of the respective fiscal quarter, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the Commission may by rules and regulations prescribe) which
the Issuer is required to file with the Commission pursuant to Section 13 or
15(d) of the Securities Exchange Act of 1934, as amended.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 801. COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS
The Company shall not consolidate with or merge into any other
corporation or convey, transfer or lease its properties and assets substantially
as an entirety to any Person, unless:
(1) the corporation formed by such consolidation or into which
the Company is merged or the Person which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company
substantially as an entirety shall be a corporation organized and
existing under the laws of the United States of America, any State
thereof or the District of Columbia, and if such corporation is not the
Company, 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 (including all Additional Amounts, if any, payable
pursuant to Section 1004) on all the Securities and the performance of
every covenant of this Indenture on the part of the Company to be
performed or observed;
<PAGE>
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company or
a Subsidiary as a result of such transaction as having been incurred by
the Company or such Subsidiary at the time of such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have happened and be
continuing;
(3) if, as a result of any such or merger or conveyance
transfer or lease, properties or assets of the Company would become
subject to a mortgage, pledge, lien, security interests or other
encumbrance which would not be permitted by this Indenture, the Company
or such successor corporation or Person, as the case may be, shall take
such steps as shall be necessary effectively to secure the Securities
equally and ratably with (or prior to) all indebtedness secured
thereby; and
(4) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation (if the corporation formed by such consolidation is not
the Company), merger, conveyance, transfer or lease 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 CORPORATION SUBSTITUTED.
Upon any consolidation by the Company with or merger by the Company
into any other corporation or any conveyance, transfer or lease of 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 to which such conveyance, transfer or lease 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 corporation had been named as the Company herein, and thereafter,
except in the case of a lease, the predecessor corporation shall be relieved of
all obligations and covenants under this Indenture and the Securities and
coupons.
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 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:
<PAGE>
(1) to evidence the succession of another corporation to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities; 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; or
(4) to add to or change any of the provisions of this
Indenture provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal (or premium, if any) on Registered Securities or of principal
(or premium, if any) or any interest on Bearer Securities, to permit
Registered Securities to be exchanged for Bearer Securities or to
permit the issuance of Securities in uncertificated form, PROVIDED 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; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301; 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,
pursuant to the requirements of Section 611(b); 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 such action shall not
adversely affect the interests of the Holders of Securities of any
series or any related coupons in any material respect.
<PAGE>
SECTION 902. SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of each series affected by such
supplemental indenture, by Act of said Holders of Securities delivered to the
Company and the Trustee, the Company, when authorized by 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 of such series 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 or coupon affected
thereby,
(1) change the Stated Maturity of the principal of, 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 amount of the principal of an Original Issue Discount
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502, or change
any Place of Payment, or the coin or currency in which, any Security or
any premium or the 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, on or after the
Redemption Date), 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 (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 1304 for quorum or voting, or
(3) change any obligation of the Company to maintain an office
or agency in Section 1002, or
(4) modify any of the provisions of this Section, Section 513
or Section 1012, 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, PROVIDED, HOWEVER, that this clause shall not be
deemed to require the consent of any Holder of a Security or coupon
with respect to changes in the references to "the Trustee" and
concomitant changes in this Section and Section 1012, or the deletion
of this proviso, in accordance with the requirements of Sections 611(b)
and 901(8).
<PAGE>
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.
It shall not be necessary for any Act of Holders of Securities 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.
SECTION 903. EXECUTION OF SUPPLEMENTAL INDENTURES.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 601) 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 coupons 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 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.
<PAGE>
ARTICLE TEN
COVENANTS
SECTION 1001. PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees for the benefit of each series of
Securities that it will duly and punctually pay the principal of (and premium,
if any) and interest on the Securities of that series in accordance with the
terms of the 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.
SECTION 1002. MAINTENANCE OF OFFICE OR AGENCY.
If securities of a series are issuable only as Registered Securities,
the Company will maintain in each Place of Payment for such series and office or
agency where Securities of that series may be presented or surrendered for
payments, where Securities of that series may be surrendered for registration of
transfer or exchange 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 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 (including payment of any
Additional Amounts payable on Securities of that series pursuant to Section
1004); PROVIDED, HOWEVER, that if the Securities of that series are listed on
The Stock Exchange of the United Kingdom and the Republic of Ireland, 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 London, 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 and
where notices and demands to or upon the Company in respect of the Securities of
that series and this Indenture may
<PAGE>
be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of any such office or agency. If at
any time the Company shall fail to maintain any such required office or agency
in respect to any series of Securities or shall fail to furnish the Trustee with
the address thereof, such presentations, and surrenders of Securities of that
series may be made and notices and demands may be made or served at the
Corporate Trust Office of the Trustee.
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, payment
of principal of and any premium and interest in U.S. dollars (including
Additional Amounts payable in respect thereof) on any Bearer Security may be
made at the Corporate Trust Office of the Trustee in the Borough of Manhattan,
The City of New York if (but only if) payment of the full amount of such
principal, premium, interest or Additional Amounts at all offices outside the
United States maintained for the purpose by the Company in accordance with this
Indenture is illegal or effectively precluded by exchange controls or other
similar restrictions.
The Company may also 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 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 each Place of Payment 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.
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 Securities, it will, on or before each due date of the
principal of (and premium, if any) or interest on any of the Securities of that
series, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal (and premium, if any) or interest
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 to so act.
Whenever the Company shall have one or more Paying Agents for any
series of Securities, it will, on or before each due date of the principal of
(and premium, if any) or interest on any Securities of that series, deposit with
a Paying Agent a sum sufficient to pay the principal (and premium, if any) or
interest 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.
<PAGE>
The Company will cause each Paying Agent for any series of Securities
other than the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of (and premium, if any) or interest on Securities of that series in
trust for the benefit of the Persons entitled thereto until such sums
shall be paid to such Persons or otherwise disposed of as herein
provided;
(2) give the Trustee notice of any default by the Company (or
any other obligor upon the Securities of that series) in the making of
any payment of (and premium, if any) or interest on the Securities of
that series; and
(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent.
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 money.
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 (and premium, if
any) or interest on any Security of any series and remaining unclaimed for two
years after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security or
any coupon appertaining thereto shall thereafter, as an unsecured general
creditor, look only to the Company for payment thereof, 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 in each Place of Payment notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than
30 days nor more than 90 days and no more than 90 days, turn funds over from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
<PAGE>
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 any Security of any series or any
coupon appertaining thereto Additional Amounts as provided therein. Whenever in
this Indenture there is mentioned, in any context, the payment of the principal
of (or premium, if any) or interest on, or in respect of, any Security of any
series of any related coupon of 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 for in this Section to the
extent that, in such context, Additional Amounts are, were or would be payable
in respect thereof pursuant to the provisions of this Section 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.
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
premium, if any) is made), and at least 10 days prior to each date of payment of
principal (and premium, if any) 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 (and premium, if any) or interest on the Securities of that
series shall be made to Holders of Securities of that series or the related
coupons who are United States Aliens without withholding for or on account of
any tax, assessment or other governmental charge described in the Securities of
that 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 or coupons and the Company will
pay to the Trustee or such Paying Agent the Additional Amounts required by this
Section. 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.
<PAGE>
SECTION 1005. CORPORATE EXISTENCE.
Subject to Article Eight, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and that of each Subsidiary and the rights (charter and statutory) and
franchises of the Company and its Subsidiaries; PROVIDED, HOWEVER, that the
Company shall not be required to preserve any such right or franchise if the
Company shall determine that the preservation thereof is no longer desirable in
the conduct of the business of the Company and its Subsidiaries considered as a
whole and that the loss thereof is not disadvantageous in any material respect
to the Holders.
SECTION 1006. MAINTENANCE OF PROPERTIES.
The Company will cause all properties used or useful in the conduct of
its business or the business of any Subsidiary to be maintained and kept in good
condition, repair and working order and supplied with all necessary equipment
and will cause to be made all necessary repairs, renewals, replacements,
betterments and improvements thereof, all as in the judgment of the Company may
be necessary so that the business carried on in connection therewith may be
properly and advantageously conducted at all times; PROVIDED, HOWEVER, that
nothing in this Section shall prevent the Company from discontinuing the
operation or maintenance of any of such properties, or disposing of them if such
discontinuance or disposal is, in the judgment of the Company or of the
Subsidiary concerned, desirable in the conduct of its business or the business
of any Subsidiary and not disadvantageous in any material respect to the Holders
of Securities.
SECTION 1007. PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims or labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; PROVIDED,
HOWEVER, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings and the Company shall have set aside on its books adequate reserves
with respect thereto (segregated to the extent required by generally accepted
accounting principles).
<PAGE>
SECTION 1008. INTENTIONALLY OMITTED..
SECTION 1009. INTENTIONALLY OMITTED..
SECTION 1010. LIMITATION UPON LIENS.
The Company will not, and will not permit any Subsidiary to create,
assume, incur or suffer to be created, assumed or incurred or to exist any Lien
upon any of the Properties of any character of the Company or any Subsidiary
without making effective provision whereby the Securities and coupons
appertaining thereto then outstanding shall be secured equally ant ratably with
(or prior to) any other obligation or indebtedness so secured, so long as any
such other obligation or indebtedness remains secured; except, however, that
notwithstanding the foregoing, the Company or any Subsidiary, without so
securing the Securities and coupons appertaining thereto, may:
(a) lease or sublease Property to others in the ordinary
course of the business of the Company or any Subsidiary, or lease or
sublease any Property if the Property subject thereto is not needed by
the Company or any Subsidiary in the operation of its business;
(b) create, assume and incur or permit to exist Liens on its
Property acquired or constructed by the Company or a Subsidiary to
secure the purchase price of such Property (or to secure indebtedness
for money borrowed or incurred prior to or within 12 months after the
acquisition or construction of any such Property to be subject to such
Lien for the purpose of such acquisition or construction), or Liens
existing on any such Property at the time of acquisition, whether or
not assumed, or any Lien existing on any Property of any Person at the
time it becomes a Subsidiary or is merged or consolidated with the
Company or a Subsidiary or at the time of acquisition of the assets of
a Person as an entirety or substantially as an entirety by the Company
or a Subsidiary, and any conditional sales agreement or other title
retention agreement with respect to any Property hereafter acquired;
PROVIDED, HOWEVER, that the aggregate principal amount of the
indebtedness secured by all such Liens on any particular Property shall
not exceed the cost of such Property, including the improvements
thereon, to the Company or any such Subsidiary, and PROVIDED, FURTHER,
that any such Lien does not extend to other Property owned prior to
such acquisition or construction or to Property thereafter acquired or
constructed;
(c) create, assume and incur such Liens or permit such Liens
to be created, assumed, incurred or to exist, provided, in each case,
the Lien secures indebtedness for borrowed money, including purchase
money indebtedness, which is incurred to finance or refinance
(irrespective of whether the original acquisition of the Property was
with or from money borrowed) the acquisition of the Property subject to
such Lien and in respect of which the creditor has no recourse against
<PAGE>
the Company or any Subsidiary except recourse to such Property or to
the proceeds of any sale or lease of such Property or both;
(d) create, assume and incur or permit to exist Liens on
Property of the Company or a Subsidiary in favor of the United States
of America or any state thereof, or any department, governmental body,
agency or instrumentality or political subdivision of any such
jurisdiction, to secure partial, progress, advance or other payments
pursuant to any contract, or statute relating thereto;
(e) make any deposit with or give any form of security to any
governmental agency or other body created or approved by law or
governmental regulation in order to enable the Company or such
Subsidiary to maintain self-insurance, or to participate in any fund or
payment in connection with workmen's compensation, unemployment
insurance, old-age pensions, or other social security, or to share in
any privileges or other benefits available to corporations
participating in any such arrangements, or for any other purpose at any
time required by law or regulation promulgated by any government agency
or office as a condition to the transaction of any business or the
exercise of any privilege or license, or deposit assets of the Company
or such Subsidiary 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 by the Company or such Subsidiary from any judgment or decree
against it, or in connection with any other proceedings in actions at
law or suits in equity by or against the Company or such Subsidiary;
(f) incur or suffer to be incurred or to exist upon any of its
Property or assets (i) Liens for taxes, assessments or other
governmental charges or levies which are not yet due or are payable
without penalty or of which amount, applicability or validity is being
contested by the Company or such Subsidiary in good faith by
appropriate proceedings and the Company or such Subsidiary shall have
set aside on its books reserves which it deems to be adequate with
respect thereto (segregated to the extent required by generally
accepted accounting principles), PROVIDED that foreclosure, distraint,
sale or similar proceedings (other than those that may be and are cured
by payment) have not been commenced, (ii) the Liens of any judgment and
other similar Liens arising in connection with court proceedings,
providing such Lien is discharged or the execution or other enforcement
of such Lien is effectively stayed within six months of the creation of
such Lien, (iii) undetermined Liens or charges incident to
construction, (iv) materialmen's, mechanics', workmen's, repairmen's,
landlords' liens for rent or other like Liens arising in the ordinary
course of business in respect of obligations which are not overdue or
which are being contested by the Company or such Subsidiary in good
faith by appropriate proceedings, or deposits to obtain the release of
such Liens or (v) any encumbrances consisting of zoning restrictions,
licenses, easements and restrictions on the use of real property and
minor defects and irregularities in the title thereto, which do not
materially impair the use of
<PAGE>
such property by the Company or such Subsidiary in the operation of its
business or the value of such property for the purpose of such
business;
(g) create or suffer to be created or to exist in favor of any
lender of moneys or holder of commercial paper of the Company or a
Subsidiary in the ordinary course of business a banker's lien or right
of offset in the holder of such indebtedness on moneys of the Company
or a Subsidiary deposited with such lender or holder in the ordinary
course of business;
(h) create, assume and incur such Liens or permit such Liens
to be created, assumed, incurred or to exist, PROVIDED any such Lien
relates solely to the purchase of, or the investment in or with respect
to, a specific item or items of tangible personal property and secures
indebtedness evidenced by participation certificates, trust
certificates, indentures or the like, however, denominated, PROVIDED,
FURTHER, that no such Lien shall constitute a general lien or mortgage
on substantially all the tangible assets of the Company;
(i) refund, replace or extend any Lien permitted by this
Section 1010 for amounts not exceeding the principal amount of
indebtedness so refunded or extended at the time of the refunding or
extension thereof, and covering only the same Property theretofore
securing the same;
(j) deposit or pledge assets 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;
(k) permit to exist Liens existing on __________, 1998 on its
Property; and
(1) create, assume and incur or permit to exist any Lien on
aircraft or equipment held by Company or a Subsidiary for lease to
third parties, if such Lien secures an obligation in respect of money
borrowed which provides that recourse to the Company or such Subsidiary
shall not be had for the payment of such obligation;
(m) in addition to the Liens permitted by clauses (a) through
(l) above, secure an aggregate principal amount of indebtedness of the
Company (including its Subsidiaries) not in excess of 15% of
Consolidated Assets.
<PAGE>
SECTION 1011. STATEMENT AS TO COMPLIANCE.
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement, which need not comply with Section
102, signed by the Chairman of the Board, the President, or a Vice President and
by the Treasurer, an Assistant Treasurer, the Controller or an Assistant
Controller of the Company, stating as to each signer thereof, that
(1) a review of the activities of the Company during such year
and of performance under this Indenture has been made under his
supervision, and
(2) to the best of his knowledge, based on such review, (a)
the Company has fulfilled all its obligations under this Indenture
throughout such year, or, if there has been a default in the
fulfillment of any such obligation, specifying each such default known
to him and the nature and status thereof, and (b) no event has occurred
and is continuing which is, or after notice or lapse of time or both
would become, an Event of Default, or, if such an event has occurred
and is continuing, specifying each such event known to him and the
nature and status thereof.
SECTION 1012. WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
term, provision or condition set forth in Sections 1004 to 1007, inclusive, with
respect to the Securities of any series if before the time for such compliance
the Holders of at least 66 2/3% in principal amount of the Outstanding
Securities of such series shall, by Act of such Holders, either 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.
<PAGE>
SECTION 1102. ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In case of any redemption at the election of the Company
of 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. In case of any redemption at the election of the Company of
less than all 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 Trustees) 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 (i) prior to the
expiration of any restriction on such redemption provided in the terms of such
Securities or elsewhere in this Indenture or (ii) pursuant to an election of the
Company which is subject to a condition specified in the terms of such
Securities, the Company shall furnish the Trustee with an Officers' Certificate
evidencing compliance with such restriction or condition.
SECTION 1103. SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities of any series with the same issue date,
interest rate or formula, Stated Maturity and other terms are to be redeemed,
the particular Securities to be redeemed shall be selected pro rata not more
than 60 days prior to the Redemption Date by the Trustee from the Outstanding
Securities of such series not previously called for redemption, or by such other
method as the Trustee shall deem fair and appropriate and which may provide for
the selection for redemption of portions of the principal amount of Registered
Securities of such series not redeemed to be less than the minimum denomination
for a Security of such series established herein or pursuant hereto. Unless
otherwise provided in the Securities of a series, partial redemption must be in
an amount not less than $1,000,000 principal amount of Securities.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than the Trustee) in writing of the Securities selected
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 contest otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal of such Securities which has been or is to be redeemed.
<PAGE>
SECTION 1104. NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
106, not less than 30 nor more than 60 days prior to the Redemption Date, unless
a shorter period is specified in the Securities to be redeemed, to the Holders
of Securities to be redeemed. Failure to give notice by mailing in the manner
herein provided to the Holder of any Registered Securities designated for
redemption as a whole or in par's, or any defect in the notice of any such
Holder, shall not affect the validity of the proceedings for the redemption of
any other Securities or portion thereof.
Any notice that is mailed to the Holder of any Registered Securities in
the manner herein provided shall be conclusively presumed to have been duly
given, whether or not such Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(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 Securities to be
redeemed,
(4) in case any Registered 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
of such Security will receive, without charge, a new Registered
Security or Registered Securities of authorized denominations for the
principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security or 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 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 any accrued interest and Additional
Amounts pertaining thereto,
(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,
<PAGE>
unless security or indemnity satisfactory to the Company, the Trustee
and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to 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 the 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 or the Euroclear or the Cedel reference
numbers of such Securities, if any (or any other numbers used by a
Depositary to identify such Securities).
A notice of redemption published as contemplated by Section 106 need
not identify particular Registered Securities to be redeemed.
Notice of redemption of Securities to be redeemed at the election of
the Company 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, segregate and hold in trust as provided in Section 1003) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) any accrued interest on and Additional
Amounts with respect to all the Securities or portions thereof which are to be
redeemed on that date.
<PAGE>
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, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall 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 and
Additional Amounts 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 upon presentation and surrender of coupons
for such interest (an office or agency located outside the United States except
as otherwise provided in Section 1002), 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 Securities 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 and Additional Amounts represented by coupons shall be
payable only upon presentation and surrender of those coupons at an office or
agency located outside of the United States except as otherwise provided in
Section 1002.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate prescribed
therefor in the Security.
<PAGE>
SECTION 1107. SECURITIES REDEEMED IN PART.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Place of Payment for such Security (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 Registered Security or Securities of the
same series, containing identical terms and provisions, 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. If a Security in global form is so surrendered the Company shall
execute, and the Trustee shall authenticate and deliver to the U.S. Depositary
or other Depositary for such Security in global form as shall be specified in
the Company Order with respect thereto to the Trustee, without service charge, a
new Security in global form in a denomination equal to and in exchange for the
unredeemed portion of the principal of the Security in global form so
surrendered.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. APPLICABILITY OF ARTICLE.
The provisions of this Article shall be applicable to any sinking fund
or 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 Securities of any series is herein referred to as an "optional
sinking fund payment' . If provided for by the terms of Securities of any
series, the cash amount of any 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.
<PAGE>
SECTION 1202. SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES.
The Company (1) may deliver Outstanding Securities of a 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) may apply as a credit Securities of a 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, in each case in satisfaction of all or any part of
any sinking fund payment with respect to the Securities of such series required
to be made pursuant to the terms of such Securities as provided for by the terms
of such series; PROVIDED that such Securities have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the Redemption Price specified in such Securities for redemption
through operation of the sinking fund and the amount of such 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 any
series of Securities, the Company will deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing 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 and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202 and will also deliver to the Trustee any Securities to
be so delivered. Not than less 30 days before each sinking fund payment date the
Trustee shall select 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
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1301. 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.
<PAGE>
SECTION 1302. 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 l301, 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 1301, 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 2l 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 1303. 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 (l) 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 representative of the
Trustee and its counsel and any representatives of the Company and its counsel.
<PAGE>
SECTION 1304. 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 66
2/3% in principal amount of the Outstanding Securities of a series, the Persons
entitled to vote 66 2/3% 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 the 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 1302(a), except that
such notice need to 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
an 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 only 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 consent or waiver which this Indenture expressly
provides may be given by the Holders of not less than 66 2/3% in principal
amount of the Outstanding Securities of a series may be adopted at a meeting or
an adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of 66 2/3% in principal amount of
the Outstanding Securities of that series; and PROVIDED, FURTHER, 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 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.
<PAGE>
SECTION 1305. DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS.
(a) Notwithstanding any other provisions of this indenture, the Trustee
may take such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of such 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 the Holders of Securities as provided in Section 1302(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 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 1302 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>
SECTION 1306. 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 written verified
reports in triplicate of all votes cast at the meeting. A record, at least in
triplicate, 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 facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 1302 and, if
applicable, Section 1304. 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>
ARTICLE FOURTEEN
SUBORDINATION
Section 1401. SECURITIES SUBORDINATED TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of Securities by his
acceptance thereof, likewise covenants and agrees, that the indebtedness
evidenced by the Securities and the payment of the principal of (and premium, if
any) and interest 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 Senior Indebtedness.
Anything in this Indenture or in the Securities to the contrary
notwithstanding, the indebtedness evidenced by the Securities shall be
subordinate and junior in right of payment, to the extent and in the manner
hereinafter set forth, to all Senior Indebtedness. Senior Indebtedness shall
continue to be Senior Indebtedness and entitled to the benefits of these
subordination provisions irrespective of any amendment, modification or waiver
of any term of Senior Indebtedness or extension or renewal of Senior
Indebtedness.
(a)(i) In the event the Company shall default in the payment of any
Senior Indebtedness when the same becomes due and payable, whether at
maturity or on a date fixed for prepayment or by declaration or otherwise,
then, unless and until such default shall have been cured or waived or
shall have ceased to exist, no direct or indirect payment (in cash,
property or securities or by set-off or otherwise) shall be made or agreed
to be made on account of the principal of, premium, if any, or interest or
any Additional Amounts on the Securities, or as a sinking fund for the
Securities, or in respect of any redemption, retirement, purchase or other
acquisition of any of the Securities.
(ii) Upon the happening of an event of default with respect to
any Senior Indebtedness, permitting the holders thereof to accelerate the
maturity thereof (other than under circumstances when the terms of
subdivision (a)(i) are applicable), then, unless and until such event of
default shall have been cured or waived or shall have ceased to exist, no
direct or indirect payment (in cash, property or securities or by set-off
or otherwise) shall be made or agreed to be made on account of the
principal of, or premium, if any, or interest or any Additional Amounts on
the Securities, or as a sinking fund for the Securities, or in respect of
any redemption, retirement, purchase or other acquisition of any of the
Securities, during any period:
(A) of 90 days after written notice of such default shall
have been given to the Company by any holder of Senior Indebtedness;
or
(B) in which any judicial proceeding shall be pending in
respect of such default and a notice of acceleration of the maturity
of such Senior Indebtedness shall have been transmitted to the Company
in respect of such default.
(b) In the event of
(i) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
relating to the Company, its creditors or its property,
(ii) any proceeding for the liquidation, dissolution or other
winding-up of the Company, voluntary or involuntary, whether or not
involving insolvency or bankruptcy proceedings,
(iii) any assignment by the Company for the benefit of creditors,
or
(iv) any other marshalling of the assets of the Company,
all Senior Indebtedness (including any interest accruing after the
commencement of such proceedings) shall first be paid in full before any
payment or distribution, whether in cash, securities or other property,
shall be made to any Holder of Securities on account of the Securities.
Any payment or distribution, whether in cash, securities or other property
(other than securities of the Company or any other corporation provided for
by a plan of reorganization or readjustment the payment of which is
subordinate, at least to the extent provided in this Article Fourteen with
respect to the Securities, to the payment of all Senior Indebtedness at the
time outstanding and to any securities issued in respect thereof under any
such plan of reorganization or readjustment), which would otherwise (but
for the provisions of this Article Fourteen) be payable or deliverable in
respect of the Securities shall be paid or delivered directly to the
holders of Senior Indebtedness in accordance with the priorities then
existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings)
shall have been paid in full.
(c) In the event that any Security shall be declared due and
payable as the result of the occurrence of any one or more defaults in
respect thereof, under circumstances when the terms of subdivision (b) are
not applicable, no payment shall be made in respect of any Securities
unless and until all Senior Indebtedness shall have been paid in full or
such declaration and its consequences shall have been rescinded and all
such defaults shall have been remedied or waived.
(d) If any payment or distribution of any character or any
security, whether in cash, securities or other property (other than
securities of the Company or any other corporation provided for by a plan
of reorganization or readjustment the payment of which is subordinate, at
least to the extent provided in the provisions of this Article Fourteen
with respect to the Securities, to the payment of all Senior Indebtedness
at the time outstanding and to any securities issued in respect thereof
under any such plan or reorganization or readjustment), shall be received
by any Holder of Securities in contravention of any terms hereof and before
all the Senior Indebtedness shall have been paid in full, such payment or
distribution or security shall be received in trust for the benefit of, and
shall be paid over or delivered and transferred to, the holders of the
Senior Indebtedness at the time outstanding in accordance with the
priorities then existing among such holders for application to the payment
of all Senior Indebtedness remaining unpaid, to the extent necessary to pay
all such Senior Indebtedness in full. In the event of the failure of any
Holder of Securities to endorse or assign any such payment, distribution or
security, each holder of Senior Indebtedness is hereby irrevocably
authorized to endorse or assign the same.
(e) Nothing contained herein shall impair, as between the
Company and the Holder of any Securities, the obligation of the Company to
pay to the Holder thereof the principal thereof and interest thereon as and
when the same shall become due and payable in accordance with the terms of
such Security, or prevent the Holder of any Securities from exercising all
rights, powers and remedies otherwise permitted by applicable law or
pursuant to the terms of this Indenture and the Security, upon a default or
Event of Default under this Indenture, all subject to the rights of the
holders of the Senior Indebtedness to receive cash, securities or other
property otherwise payable or deliverable to the Holders of the Securities.
(f) Senior Indebtedness shall not be deemed to have been paid in
full unless the holders thereof shall have received cash equal to the
amount of such Senior Indebtedness then outstanding. Upon the payment in
full of all Senior Indebtedness, the Holders of Securities shall be
subrogated to all rights of any holders of Senior Indebtedness to receive
any further payments to distributions applicable to the Senior Indebtedness
until all amount owing on the Securities shall have been paid in full, and
such payments or distributions received by the holders of the Securities by
reason of such subrogation, of cash, securities or other property which
otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other than
the holders of Senior Indebtedness, on the one hand, and the Holders of
Securities, on the other hand, be deemed to be a payment by the Company on
account of Senior Indebtedness and not on account of Securities.
The Company shall give prompt written notice to the Trustee of any
insolvency, bankruptcy, receivership, liquidation, reorganization, readjustment,
composition or other similar proceeding relating to the Company within the
meaning of this Section 1401. Upon any payment or distribution of assets of the
Company referred to in this Article Fourteen, the Trustee, subject to the
provisions of Section 601, and the Holders of Securities shall be entitled to
rely upon a certificate of the trustee in bankruptcy, receiver, assignee for the
benefit of creditors or other liquidating agent making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the person entitled to participate in such distribution,
the holders of the 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 Fourteen.
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 Section 1401, 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, as to the extent to which such person is
entitled to participate in such payment or distribution, and as to other facts
pertinent to the rights of such person under this Section 1401, 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 1402. EFFECTUATION OF SUBORDINATION BY TRUSTEE.
Each Holder of Securities, by his acceptance thereof, authorizes and
directs the Trustee in his behalf to take such action as may be necessary or
appropriate to effectuate, as between the Holders of the Securities and the
holders of Senior Indebtedness, the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
SECTION 1403. KNOWLEDGE OF TRUSTEE.
Nothing contained in this Article Fourteen or elsewhere in this Indenture,
shall (a) prevent the Company from setting aside in trust or depositing with the
Trustee or any Paying Agent, at any time, except during the pendency of any of
the proceedings or upon the happening or continuance of any of the events
referred to in Section 1401, moneys for the payment of principal of, or premium,
if any, or interest on, the Securities, or (b) prevent the application by the
Trustee or Paying Agent of any moneys deposited with it hereunder by or on
behalf of the Company to the payment of or on account of the principal of, or
the premium, if any, or interest on the Securities, if the Trustee or the Paying
Agent, as the case may be, did not have written notice of any event prohibiting
such application by the close of business on the Business Day immediately prior
to the date of such application.
Notwithstanding the provisions of this Article or any other provisions of
this Indenture, the Trustee shall not be charged with knowledge of the existence
of any Senior Indebtedness or of any default or event of default with respect to
any Senior Indebtedness or any fact or facts which would prohibit the making of
any payment of moneys to or by the Trustee, or the taking of any other action by
the Trustee, unless and until the Trustee shall have received written notice
thereof from the Company, any Holder of Securities, any paying or conversion
agent of the Company or the holder or representative of any class of Senior
Indebtedness who shall have been certified by the Company or otherwise
established to the reasonable satisfaction of the Trustee to be such holder or
representative or by the trustee under any indenture pursuant to which Senior
Indebtedness shall be outstanding.
SECTION 1404. TRUSTEE'S RELATION TO SENIOR INDEBTEDNESS.
The Trustee shall be entitled to all rights set forth in this Article
with respect to any Senior Indebtedness at the 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 deprive the Trustee of any of its rights
as such holder. Nothing in the Article Fourteen shall apply to claims of or
payment to the Trustee under or pursuant to Section 607.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and
obligations as are specifically set forth in this Article and no implied
covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee and the Trustee shall
not be liable to any holder of Senior Indebtedness if it shall pay over to
deliver to Holders, the Company or any other Person monies or assets to which
any holder of Senior Indebtedness shall be entitled by virtue of this Article
or otherwise.
SECTION 1405. RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS NOT IMPAIRED.
No right of any present or future holder of any Senior Indebtedness to
enforce the subordination herein shall at any time or in any way be
prejudiced or impaired by any act or failure to act on the part of the
Company or by any non-compliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
<PAGE>
ARTICLE FIFTEEN
MISCELLANEOUS PROVISIONS
SECTION 1501. SECURITIES IN FOREIGN CURRENCIES.
Whenever this Indenture provides for (i) any action by, or the
determination of any of the rights of, Holders of Securities of any series in
which not all of such Securities are denominated in the same currency, or (ii)
any distribution to Holders of Securities, in the absence of any provision to
the contrary in the form of Security of any particular series, any amount in
respect of any Security denominated in a currency other than United States
dollars shall be treated for any such action or distribution as that amount of
United States dollars that could be obtained for such amount on such reasonable
basis of exchange and as of the record date with respect to Registered
Securities of such series (if any) for such action, determination of rights or
distribution (or, if there Shall be no applicable record date, such other date
reasonably proximate to the date of such action, determination of rights or
distribution) as the Company may specify in a written notice to the Trustee or,
in the absence of such written notice, as the Trustee may determine.
ARTICLE SIXTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1601. APPLICABILITY OF ARTICLE.
Securities of any series which are repayable at the option of the
Holders thereof before their Stated Maturity shall be repaid in accordance with
the terms of the Securities of such series. The repayment of any principal
amount of Securities pursuant to such option of the Holder to require repayment
of Securities before their Stated maturity, for purposes of Section 309, shall
not operate as a payment, redemption or satisfaction of the indebtedness
represented by such Securities unless and until the Company, at its option,
shall deliver or surrender the same to the Trustee with a directive that such
Securities be cancelled. Notwithstanding anything to the contrary contained in
this Section 1501, in connection with any repayment of Securities, the Company
may arrange for the purchase of any Securities by an agreement with one or more
investment bankers or other purchasers to purchase such Securities by paying to
the Holders of such Securities on or before the close of business on the
repayment date an amount not less than the repayment price payable by the
Company on repayment of such Securities, and the obligation of the Company to
pay the repayment price of such Securities shall be satisfied and discharged to
the extent such payment is so paid by such purchasers.
---------------------
This instrument 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 instrument.
<PAGE>
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.
BOEING CAPITAL CORPORATION
By________________________________
Title:
ATTEST:
- -----------------------------------
SECRETARY
BANKERS TRUST COMPANY,
TRUSTEE
By________________________________
Assistant Secretary
ATTEST:
- -----------------------------------
SECRETARY
<PAGE>
Exhibit 4(c)
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., 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.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. SNR/FXR-
BOEING CAPITAL CORPORATION
Series XI SENIOR MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S)
[ ] _______ and _______
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
- -------------------------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE>
SPECIFIED CURRENCY: AUTHORIZED DENOMINATIONS: EXCHANGE RATE
[ ] United States dollars [ ] $100,000 and integral AGENT:
[ ] Other: multiples of $1,000
in excess thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
2
<PAGE>
Boeing Capital Corporation, a Delaware corporation (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
specified above (or any Redemption Date or Repayment Date, each as defined on
the reverse hereof) (each such Stated Maturity Date, Redemption Date and
Repayment Date and any other date on which the principal or an installment of
principal of this Note shall become due and payable, whether by declaration
of acceleration or otherwise, being hereinafter referred to as the "Maturity
Date" with respect to the principal repayable on such date) and to pay
interest thereon, at the Interest Rate per annum specified above, until the
principal hereof is paid or duly made available for payment. The Company will
pay interest in arrears on each Interest Payment Date, if any, specified
above (each, an "Interest Payment Date"), commencing with the first Interest
Payment Date next succeeding the Original Issue Date specified above, and on
the Maturity Date; PROVIDED, HOWEVER, that if the Original Issue Date occurs
between a Record Date (as defined below) and the next succeeding Interest
Payment Date, interest payments will commence on the second Interest Payment
Date next succeeding the Original Issue Date to the holder of this Note on
the Record Date with respect to such second Interest Payment Date. Interest
on this Note will be computed on the basis of a 360-day year of twelve 30-day
months.
References herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Notwithstanding anything else contained herein, if this Note is a
Global Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Interest on this Note 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 with respect to this Note) 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, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Record Date"); PROVIDED, HOWEVER,
that interest payable on the Maturity Date will be payable to the person to whom
the principal hereof and premium, if any, hereon shall be payable. Any such
interest not so punctually paid or duly provided for ("Defaulted Interest") will
forthwith cease to be payable to the holder on any Record Date, and shall be
paid to the person in whose name this Note 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 hereinafter referred to,
notice whereof shall be given to the holder of this Note by the Trustee not less
than 10 calendar days prior to such Special Record Date or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Indenture.
3
<PAGE>
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The Borough of Manhattan, The City of New York, currently located at
Four Albany Street, New York, New York 10015, or at such other paying agency in
the Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed election form) is presented and
surrendered at the aforementioned office of the Trustee in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of U.S.
$10,000,000 (or, if the Specified Currency specified above is other than United
States dollars, the equivalent thereof in the Specified Currency) or more in
aggregate principal amount of Notes (whether having identical or different terms
and provisions) will be entitled to receive interest payments on such Interest
Payment Date by wire transfer of immediately available funds if appropriate wire
transfer instructions have been received in writing by the Trustee not less than
15 calendar days prior to such Interest Payment Date. Any such wire transfer
instructions received by the Trustee shall remain in effect until revoked by
such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "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 if the Specified Currency is other
than United States dollars, 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 below) of the country issuing the
Specified Currency (or, if the Specified Currency is 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 and Swiss francs, the "Principal Financial
Center" shall be The City of New York, Sydney and (solely in the case of
Specified Currency) Melbourne, Toronto, Frankfurt, Amsterdam, Johannesburg and
Zurich, respectively.
4
<PAGE>
The Company is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in the Specified Currency specified above
or, (i) if such Specified Currency (other than Euro) is not at the time of such
payment legal tender for the payment of public and private debts in the relevant
country, in such other coin or currency of such country which as at the time of
such payment is legal tender for the payment of such debts or (ii) if such
Specified Currency is Euro, in such other coin or currency which at the time of
payment is then legal tender in the member states of the European Union that
have adopted the single currency in accordance with the Treaty establishing the
European Community, as amended by the Treaty on European Union. (the "Specified
Currency"). If the Specified Currency is other than United States dollars,
except as otherwise provided below, any such amounts so payable by the Company
will be converted by the Exchange Rate Agent specified above into United States
dollars for payment to the Holder of this Note.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by 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 the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest 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 Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United
5
<PAGE>
States dollars on the basis of the Market Exchange Rate (as defined below)
determined by the Exchange Rate Agent on the second Business Day prior to such
payment date or, if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes by (or if
not so certified, as otherwise determined by) the Federal Reserve Bank of New
York. Any payment made under such circumstances in United States dollars will
not constitute an Event of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this
6
<PAGE>
Note shall be subject to the terms set forth in such Addendum or such
"Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
7
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[SEAL] BOEING CAPITAL CORPORATION
By________________________________
Title:
Attest:
By:___________________________
Title:
Dated:________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of the series designated therein referred to
in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By____________________________
Authorized Officer
8
<PAGE>
[REVERSE OF NOTE]
BOEING CAPITAL CORPORATION
Series XI SENIOR MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture,
dated as of June , 1999, and as amended, modified or supplemented from time to
time (the "Indenture"), between the Company and Bankers Trust Company, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), 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 Debt Securities, and of the terms upon which the Debt Securities are, and
are to be, authenticated and delivered. This Note is one of the series of Debt
Securities designated as "Series XI Senior Medium-Term Notes Due Nine Months or
More from Date of Issue" (the "Notes"). All terms used but not defined in this
Note specified on the face hereof or in an Addendum hereto shall have the
meanings assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
denominations of U.S. $100,000 and integral multiples of $1,000 in excess
thereof or the minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S. $1,000 or,
if the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be at least U.S. $100,000 or such
minimum Authorized Denomination), at the Redemption Price (as defined below),
together with unpaid interest accrued thereon to the date fixed for redemption
(each, a "Redemption Date"), on notice given no more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the provisions
of the Indenture. The "Redemption Price" shall initially be the Initial
Redemption Percentage specified on the face hereof multiplied by the unpaid
principal amount of this Note to be redeemed. The Initial Redemption Percentage
shall decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of unpaid principal amount to be redeemed. In the event
of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S. $1,000 or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof (provided that any remaining
9
<PAGE>
principal amount hereof shall be at least U.S. $100,000 or such minimum
Authorized Denomination), at a repayment price equal to 100% of the unpaid
principal amount to be repaid, together with unpaid interest accrued thereon to
the date fixed for repayment (each, a "Repayment Date"). For this Note to be
repaid, this Note must be received, together with the form hereon entitled
"Option to Elect Repayment" duly completed, by the Trustee at its corporate
trust office not more than 60 nor less than 30 calendar days prior to the
Repayment Date. Exercise of such repayment option by the holder hereof will be
irrevocable. In the event of repayment of this Note in part only, a new Note of
like tenor for the unrepaid portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (ii)
any unpaid interest accrued thereon, from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the case
may be. The difference between the Issue Price and 100% of the principal amount
of this Note is referred to herein as the "Discount", and the Discount will be
ratably accrued over the term of this Note for purposes of determining the
amount payable upon redemption, repayment or acceleration of maturity of this
Note.
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), a coupon rate equal
to the initial interest rate applicable to this Note and an assumption that the
maturity of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of the
yield for an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of the entire
indebtedness of the Notes upon compliance with certain conditions set forth
therein, which provisions apply to the Notes.
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 Debt Securities at any time by the
Company and the Trustee with the consent of the holders of not less than 66-K%
in principal amount of the Outstanding Debt Securities of
10
<PAGE>
each series affected thereby. The Indenture also contains provisions
permitting the holders of at least 66-K% in principal amount of the
Outstanding Debt Securities of any series, on behalf of the holders of all
such Debt Securities of such series, to waive compliance by the Company with
certain provisions of the Indenture. Furthermore, provisions in the Indenture
permit the holders of not less than a majority in principal amount of the
Outstanding Debt Securities of any series, in certain instances, to waive, on
behalf of all of the holders of Debt Securities of such series, certain past
defaults under the Indenture and their consequences. Any such consent or
waiver by the holder of this Note shall be conclusive and binding upon such
holder and upon all future holders of this Note and other Notes issued upon
the registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different Authorized Denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
THE INDENTURE AND THIS NOTE 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 ENTIRELY IN SUCH STATE.
11
<PAGE>
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (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 typewrite name and address including postal zip code of assignee)
______________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________________
---------------------------------------
Notice: The signature(s) on this assignment must
correspond with the name(s) as written upon the face
of this Note in every particular, without alteration
or enlargement or any change whatsoever.
12
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at
- ------------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, not more than 60 nor less than 30 calendar days prior to the
Repayment Date, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S. $1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (each of which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid:
Notice: The signature(s) on this
Date:___________________________ Option to Elect Repayment must
correspond with the name(s) as
written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
13
<PAGE>
Exhibit 4(d)
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., 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.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. SNR/FXR-
BOEING CAPITAL CORPORATION
Series XI SUBORDINATED MEDIUM-TERM NOTE
(Fixed Rate)
ORIGINAL ISSUE DATE: INTEREST RATE: % STATED MATURITY DATE:
INTEREST PAYMENT DATE(S)
[ ] ___________ and ______________
[ ] Other:
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE
REDUCTION: %
OPTIONAL REPAYMENT [ ] CHECK IF AN ORIGINAL
DATE(S): ISSUE DISCOUNT NOTE
Issue Price: %
- --------------------------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE>
SPECIFIED CURRENCY: AUTHORIZED DENOMINATIONS: EXCHANGE RATE
[ ] United States dollars [ ] $100,000 and integral AGENT:
[ ] Other: multiples of $1,000
in excess thereof
[ ] Other:
ADDENDUM ATTACHED OTHER/ADDITIONAL PROVISIONS:
[ ] Yes
[ ] No
2
<PAGE>
Boeing Capital Corporation, a Delaware corporation (the "Company",
which term includes any successor corporation under the Subordinated
Indenture hereinafter referred to), for value received, hereby promises to
pay to , or registered assigns, the principal sum of ,
on the Stated Maturity Date specified above (or any Redemption Date or
Repayment Date, each as defined on the reverse hereof) (each such Stated
Maturity Date, Redemption Date and Repayment Date and any other date on which
the principal or an installment of principal of this Note shall become due
and payable, whether by declaration of acceleration or otherwise, being
hereinafter referred to as the "Maturity Date" with respect to the principal
repayable on such date) and to pay interest thereon, at the Interest Rate per
annum specified above, until the principal hereof is paid or duly made
available for payment. The Company will pay interest in arrears on each
Interest Payment Date, if any, specified above (each, an "Interest Payment
Date"), commencing with the first Interest Payment Date next succeeding the
Original Issue Date specified above, and on the Maturity Date; provided,
HOWEVER, that if the Original Issue Date occurs between a Record Date (as
defined below) and the next succeeding Interest Payment Date, interest
payments will commence on the second Interest Payment Date next succeeding
the Original Issue Date to the holder of this Note on the Record Date with
respect to such second Interest Payment Date. Interest on this Note will be
computed on the basis of a 360-day year of twelve 30-day months.
References herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Notwithstanding anything else contained herein, if this Note is a
Global Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Interest on this Note 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 with respect to this Note) 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, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined below) immediately
preceding such Interest Payment Date (the "Record Date"); PROVIDED, HOWEVER,
that interest payable on the Maturity Date will be payable to the person to whom
the principal hereof and premium, if any, hereon shall be payable. Any such
interest not so punctually paid or duly provided for ("Defaulted Interest") will
forthwith cease to be payable to the holder on any Record Date, and shall be
paid to the person in whose name this Note 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 hereinafter referred to,
notice whereof shall be given to the holder of this Note by the Trustee not less
than 10 calendar days prior to such Special Record Date or may be paid at any
time in any other lawful manner not inconsistent with the requirements of any
securities exchange on which this Note may be listed, and upon such notice as
may be required by such exchange, all as more fully provided for in the
Subordinated Indenture.
3
<PAGE>
Payments of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The Borough of Manhattan, The City of New York, currently located at
Four Albany Street, New York, New York 10015, or at such other paying agency in
the Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed election form) is presented and
surrendered at the aforementioned office of the Trustee in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date or the Maturity Date falls on a day that
is not a Business Day, the required payment of principal, premium, if any,
and/or interest shall be made on the next succeeding Business Day with the same
force and effect as if made on the date such payment was due, and no interest
shall accrue with respect to such payment for the period from and after such
Interest Payment Date or the Maturity Date, as the case may be, to the date of
such payment on the next succeeding Business Day.
As used herein, "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 if the Specified Currency is other
than United States dollars, 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 below) of the country issuing the
Specified Currency (or, if the Specified Currency is 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 and Swiss francs, the "Principal Financial
Center" shall be The City of New York, Sydney and (solely in the case of
Specified Currency) Melbourne, Toronto, Frankfurt, Amsterdam, Johannesburg and
Zurich, respectively.
4
<PAGE>
The Company is obligated to make payment of principal, premium, if any,
and interest in respect of this Note in the Specified Currency specified above
or, (i) if such Specified Currency (other than Euro) is not at the time of such
payment legal tender for the payment of public and private debts in the relevant
country, in such other coin or currency of such country which as at the time of
such payment is legal tender for the payment of such debts or (ii) if such
Specified Currency is Euro, in such other coin or currency which at the time of
payment is then legal tender in the member states of the European Union that
have adopted the single currency in accordance with the Treaty establishing the
European Community, as amended by the Treaty on European Union. (the "Specified
Currency"). If the Specified Currency is other than United States dollars,
except as otherwise provided below, any such amounts so payable by the Company
will be converted by the Exchange Rate Agent specified above into United States
dollars for payment to the Holder of this Note.
If the Specified Currency is other than United States dollars and the
holder of this Note shall not have duly made an election to receive all or a
specified portion of any payment of principal, premium, if any, and/or interest
in respect of this Note in the Specified Currency, any United States dollar
amount to be received by the holder of this Note will be based on the highest
bid quotation in The City of New York received by 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 the Company for the purchase by the quoting dealer of
the Specified Currency for United States dollars for settlement on such payment
date in the aggregate amount of the Specified Currency payable to all holders of
Notes scheduled to receive United States dollar payments and at which the
applicable dealer commits to execute a contract. All currency exchange costs
will be borne by the holder of this Note by deductions from such payments. If
three such bid quotations are not available, payments on this Note will be made
in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest 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 Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United
5
<PAGE>
States dollars on the basis of the Market Exchange Rate (as defined below)
determined by the Exchange Rate Agent on the second Business Day prior to such
payment date or, if such Market Exchange Rate is not then available, on the
basis of the most recently available Market Exchange Rate or as otherwise
specified on the face hereof. The "Market Exchange Rate" for the Specified
Currency means the noon dollar buying rate in The City of New York for cable
transfers for the Specified Currency as certified for customs purposes by (or if
not so certified, as otherwise determined by) the Federal Reserve Bank of New
York. Any payment made under such circumstances in United States dollars will
not constitute an Event of Default (as defined in the Subordinated Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Subordinated Indenture or be valid or obligatory for any purpose.
6
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[SEAL] BOEING CAPITAL CORPORATION
By________________________________
Title:
Attest:
By:___________________________
Title:
Dated:________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Subordinated Indenture.
BANKERS TRUST COMPANY,
as Trustee
By____________________________
Authorized Officer
7
<PAGE>
[REVERSE OF NOTE]
BOEING CAPITAL CORPORATION
Series XI SUBORDINATED MEDIUM-TERM NOTE
(Fixed Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under a Subordinated
Indenture, dated as of ______, 1999, and as amended, modified or supplemented
from time to time (the "Subordinated Indenture"), between the Company and
Bankers Trust Company, as successor Trustee (the "Trustee", which term includes
any successor trustee under the Subordinated Indenture), to which Subordinated
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 Debt Securities,
and of the terms upon which the Debt Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Debt Securities
designated as "Series XI Subordinated Medium-Term Notes Due Nine Months or More
from Date of Issue" (the "Notes"). All terms used but not defined in this Note
specified on the face hereof or in an Addendum hereto shall have the meanings
assigned to such terms in the Subordinated Indenture.
This Note is issuable only in registered form without coupons in
denominations of U.S.$100,000 and integral multiples of $1,000 in excess thereof
or the minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be at least U.S.$100,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each, a
"Redemption Date"), on notice given no more than 60 nor less than 30 calendar
days prior to the Redemption Date and in accordance with the provisions of the
Indenture. The "Redemption Price" shall initially be the Initial Redemption
Percentage specified on the face hereof multiplied by the unpaid principal
amount of this Note to be redeemed. The Initial Redemption Percentage shall
decline at each anniversary of the Initial Redemption Date by the Annual
Redemption Percentage Reduction, if any, specified on the face hereof until the
Redemption Price is 100% of unpaid principal amount to be redeemed. In the event
of redemption of this Note in part only, a new Note of like tenor for the
unredeemed portion hereof and otherwise having the same terms as this Note shall
be issued in the name of the holder hereof upon the presentation and surrender
hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or, if the
Specified Currency is other than United States dollars, the
8
<PAGE>
minimum Authorized Denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be at least U.S.$100,000 or such minimum
Authorized Denomination), at a repayment price equal to 100% of the unpaid
principal amount to be repaid, together with unpaid interest accrued thereon to
the date fixed for repayment (each, a "Repayment Date"). For this Note to be
repaid, this Note must be received, together with the form hereon entitled
"Option to Elect Repayment" duly completed, by the Trustee at its corporate
trust office not more than 60 nor less than 30 calendar days prior to the
Repayment Date. Exercise of such repayment option by the holder hereof will be
irrevocable. In the event of repayment of this Note in part only, a new Note of
like tenor for the unrepaid portion hereof and otherwise having the same terms
as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
If this Note is an Original Issue Discount Note as specified on the
face hereof, the amount payable to the holder of this Note in the event of
redemption, repayment or acceleration of maturity of this Note will be equal to
the sum of (i) the Issue Price specified on the face hereof (increased by any
accruals of the Discount, as defined below) and, in the event redemption of this
Note (if applicable), multiplied by the Initial Redemption Percentage (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (ii)
any unpaid interest accrued thereon, from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the case
may be. The difference between the Issue Price and 100% of the principal amount
of this Note is referred to herein as the "Discount", and the Discount will be
ratably accrued over the term of this Note for purposes of determining the
amount payable upon redemption, repayment or acceleration of maturity of this
Note.
Subordinated Indebtedness evidenced by this Note is subordinate and
junior in right of payment to the prior payment in full of all Senior
Indebtedness (defined below) of the Company and each Holder of this Note by
accepting the same agrees to and shall be bound by the provisions hereof, and
authorizes the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the same and appoints the Trustee as his
attorney-in-fact for such purpose.
For all purposes herein, the term "Senior Indebtedness" shall mean all
of the indebtedness of, or guaranteed by, the Company for borrowed money
(including the principal of, premium, if any, or interest on any such borrowed
money and any commitment fees for unborrowed amounts which, if borrowed, would
constitute Senior Indebtedness), whether currently outstanding or hereafter
incurred, unless, under the instrument evidencing the same or under which the
same is outstanding, it is expressly provided that such indebtedness is
subordinate to other indebtedness and obligations of the Company.
In the event that the Company shall default in the payment of any
Senior Indebtedness, when the same becomes due and payable, whether at maturity
or on a date fixed for prepayment or by declaration or otherwise, then, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, or securities or by
set-off or otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, or interest or any Additional Amounts on this
Note, or in respect of any sinking fund for, or redemption, retirement or
purchase or other acquisition of this Note.
9
<PAGE>
Upon the happening of an event of default with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
(other than under the circumstances when the terms of the immediately preceding
paragraph are applicable), then, unless and until such event of default shall
have been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, or securities or by set-off or otherwise) shall be
made or agreed to be made on account of the principal of, or premium, if any, or
interest or any Additional Amounts on this Note or in respect of any sinking
fund for, or redemption, retirement or purchase or other acquisition of this
Note during any period (i) of 90 days after written notice of such default shall
have been given to the Company by any holder of Senior Indebtedness or (ii) in
which any judicial proceeding shall be pending in respect of such default and a
notice of acceleration of the maturity of such Senior Indebtedness shall have
been transmitted to the Company in respect of such default.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property; (ii) any
proceeding for the liquidation, dissolution or other winding-up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings; (iii) any assignment by the Company for the benefit of creditors;
or (iv) any other marshalling of the assets of the Company, all Senior
Indebtedness (including any interest accruing after commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any holder of
this Note on account of this Note. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided herein with respect to
this Note, to the payment of all Senior Indebtedness at the time Outstanding and
to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise but for the foregoing be
payable or deliverable in respect of this Note shall be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the priorities
then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full.
In the event that this Note shall be declared due and payable as a
result of the occurrence of any one or more defaults in respect thereof (under
circumstances when the terms of the immediately preceding paragraph are not
applicable), no payment shall be made in respect of this Note unless and until
all Senior Indebtedness shall have been paid in full or such declaration and its
consequences shall have been rescinded and all such defaults shall have been
remedied or waived.
If any payment or distribution to be paid to the holders of Senior
Indebtedness shall be received by any Holder of this Note in contravention of
the foregoing and before all the Senior Indebtedness shall have been paid in
full, such payment or distribution of any character or any security whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
provisions of the Subordinated Indenture with respect to the Subordinated
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan or
10
<PAGE>
reorganization or readjustment), shall be received in trust for the benefit of,
and shall be paid over or delivered and transferred to, the holders of Senior
Indebtedness at the time Outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the holder of this Note to
endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same. Nothing contained herein shall impair, as between the Company and the
holder of this Note, the obligation of the Company to pay to the holder thereof
the principal thereof and interest thereon as and when the same shall become due
and payable in accordance with the terms of this Note, or prevent the holder of
this Note from exercising all rights, powers and remedies otherwise permitted by
applicable law or pursuant to the terms of this Note or the Subordinated
Indenture upon a default or Event of Default under the Subordinated Indenture,
all subject to the rights of the holders of Senior Indebtedness to receive cash,
securities or other property otherwise payable or deliverable to the holder of
this Note. Senior Indebtedness shall not be deemed to have been paid in full
unless the holders thereof shall have received cash equal to the amount of such
Senior Indebtedness then Outstanding. Upon the payment in full of all Senior
Indebtedness, the holder of this Note shall be subrogated to all rights of any
holders of Senior Indebtedness to receive any further payments or distributions
applicable to the Senior Indebtedness until all amounts owing on this Note shall
have been paid in full, and such payments or distributions received by the
Holder of this Note by reason of such subrogation, of cash, securities or other
property which otherwise would be paid or distributed to the holders of Senior
Indebtedness, shall, as between the Company and its creditors other than the
holders of Senior Indebtedness, on the one hand, and the Holder of this Note, on
the other hand, be deemed to be a payment by the Company on account of Senior
Indebtedness and not on account of this Note.
If an Event of Default shall occur and be continuing, the principal of
all the Notes may be declared due and payable in the manner and with all the
effect provided in the Subordinated Indenture.
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause the yield on the Note to
be constant. The constant yield will be calculated using a 30-day month, 360-day
year convention, a compounding period that, except for the Initial Period (as
defined below), corresponds to the shortest period between Interest Payment
Dates (with ratable accruals within a compounding period), a coupon rate equal
to the initial interest rate applicable to this Note and an assumption that the
maturity of this Note will not be accelerated. If the period from the Original
Issue Date to the initial Interest Payment Date (the "Initial Period") is
shorter than the compounding period for this Note, a proportionate amount of the
yield for an entire compounding period will be accrued. If the Initial Period is
longer than the compounding period, then such period will be divided into a
regular compounding period and a short period, with the short period being
treated as provided in the preceding sentence.
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
11
<PAGE>
The Subordinated Indenture contains provisions for defeasance of the
entire indebtedness of the Notes upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Subordinated 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 Debt Securities
at any time by the Company and the Trustee with the consent of the holders of
not less than 66-K% in principal amount of the Outstanding Debt Securities of
each series affected thereby. The Subordinated Indenture also contains
provisions permitting the holders of at least 66-K% in principal amount of the
Outstanding Debt Securities of any series, on behalf of the holders of all such
Debt Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture. Furthermore, provisions in the Subordinated
Indenture permit the holders of not less than a majority in principal amount of
the Outstanding Debt Securities of any series, in certain instances, to waive,
on behalf of all of the holders of Debt Securities of such series, certain past
defaults under the Subordinated Indenture and their consequences. Any such
consent or waiver by the holder of this Note shall be conclusive and binding
upon such holder and upon all future holders of this Note and other Notes issued
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon this
Note.
No reference herein to the Subordinated Indenture and no provision of
this Note or of the Subordinated Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay principal, premium,
if any, and interest in respect of this Note at the times, places and rate or
formula, and in the coin or currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Company upon surrender of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal hereof and any premium or interest hereon are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different Authorized Denominations but
otherwise having the same terms and conditions, as requested by the holder
hereof surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
12
<PAGE>
THE SUBORDINATED INDENTURE AND THIS NOTE 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 ENTIRELY IN SUCH STATE.
13
<PAGE>
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors
survivorship and not as tenants Act_____________________
in common (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 typewrite name and address including postal zip code of assignee)
______________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________________
---------------------------------------
Notice: The signature(s) on this assignment must
correspond with the name(s) as written upon the face
of this Note in every particular, without alteration
or enlargement or any change whatsoever.
14
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at _____________________
- ----------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, not more than 60 nor less than 30 calendar days prior to the
Repayment Date, this Note with this "Option to Elect Repayment" form duly
completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (each of which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid:
Notice: The signature(s) on this
Date: Option to Elect Repayment must correspond
---------------------- with the name(s) as
written upon the face of this
Note in every particular, without
alteration or enlargement or any
change whatsoever.
15
<PAGE>
Exhibit 4(e)
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., 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.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. SNR/FLR-
BOEING CAPITAL CORPORATION
Series XI SENIOR MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
[ ] LIBOR Telerate Designated CMT Maturity Index:
Page:
DESIGNATED LIBOR CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INITIAL INTEREST RESET DATE:
SPREAD (PLUS OR MINIMUM INTEREST RATE: % INTEREST PAYMENT DATE(S):
- --------------------------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE>
MINUS):
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: % INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S): (if other than Bankers Trust Company)
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to .
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATIONS:
[ ] United States dollars [ ] $100,000 and integral multiples
of $1,000 in excess thereof
[ ] Other: [ ] Other:
EXCHANGE RATE AGENT:
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
2
<PAGE>
Boeing Capital Corporation, a Delaware corporation (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 specified above (or any Redemption Date or Repayment Date, each as defined
on the reverse hereof) (each such Stated Maturity Date, Redemption Date and
Repayment Date and any other date on which the principal or an installment of
principal of this Note shall become due and payable, whether by declaration of
acceleration or otherwise, being hereinafter referred to as the "Maturity Date"
with respect to the principal repayable on such date) and to pay interest
thereon, at a rate per annum equal to the Initial Interest Rate specified above
until the Initial Interest Reset Date specified above and thereafter at a rate
determined in accordance with the provisions specified above and on the reverse
hereof with respect to one or more Interest Rate Bases specified above until the
principal hereof is paid or duly made available for payment. The Company will
pay interest in arrears on each Interest Payment Date, if any, specified above
(each, an "Interest Payment Date"), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date; PROVIDED, HOWEVER, that if the Original Issue Date occurs between
a Record Date (as defined below) and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date next
succeeding the Original Issue Date to the holder of this Note on the Record Date
with respect to such second Interest Payment Date.
References herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Notwithstanding anything else contained herein, if this Note is a
Global Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Interest on this Note 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 with respect to this Note) 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, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined on the reverse hereof)
immediately preceding such Interest Payment Date (the "Record Date"); PROVIDED,
HOWEVER, that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof and premium, if any, hereon shall be
payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the holder on any
Record Date, and shall be paid to the person in whose name this Note 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 hereinafter referred to, notice whereof shall be given to the holder of
this Note by the Trustee not less than 10 calendar days prior to such Special
Record Date or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this Note
may be listed, and upon such notice as may be required by such exchange, all as
more fully provided for in the Indenture.
3
<PAGE>
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The Borough of Manhattan, The City of New York, currently located at
Four Albany Street, New York, New York 10015, or at such other paying agency in
The Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed election form) is presented and
surrendered at the aforementioned office of the Trustee in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
As used herein, "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 if the Specified Currency is other
than United States dollars, 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 below) of the country issuing the
Specified Currency (or, if the Specified Currency is 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 if LIBOR is an
applicable Interest Rate Basis, such day is also a London Business Day (as
defined below). "London Business Day" means a day on which commercial banks are
open for business (including dealings in the Designated LIBOR Currency (as
defined on the reverse hereof)) 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 Designated LIBOR Currency relates, as
applicable, except, in the case of (i) or (ii), that with respect to United
States dollars, Australian dollars, Canadian dollars, Deutsche marks, Dutch
guilders, Portuguese
4
<PAGE>
escudos, South African rand and Swiss francs, the "Principal Financial Center"
shall be The City of New York, Sydney and (solely with respect to the Specified
Currency) Melbourne, Toronto, Frankfurt, Amsterdam, London (solely in the case
of the Designated LIBOR Currency), Johannesburg and Zurich, respectively.
The Company is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive any amount payable hereunder in such
Specified Currency. If the holder of this Note shall not have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency, any United States dollar amount to be received by the holder of this
Note will be based on the highest bid quotation in The City of New York received
by 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 the Company for the purchase
by the quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of the Specified
Currency payable to all holders of Notes scheduled to receive United States
dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest 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 Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date
5
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or, if such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
The Company agrees to indemnify the holder of any Note against any loss
incurred by such holder as a result of any judgment or order being given or made
against the Company for any amount due hereunder and such judgment or order
requiring payment in a currency (the "Judgment Currency") other than the
Specified Currency, and as a result of any variation between (i) the rate of
exchange at which the Specified Currency amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such holder, on the date of payment of such judgment or order,
is able to purchase the Specified Currency with the amount of the Judgment
Currency actually received by such holder, as the case may be. The foregoing
indemnity constitutes a separate and independent obligation of the Company and
continues in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" includes any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
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All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Indenture or be valid or obligatory for any purpose.
7
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[SEAL] BOEING CAPITAL CORPORATION
By________________________________
Title:
Attest:
By:______________________
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Indenture.
BANKERS TRUST COMPANY,
as Trustee
By_______________________
Authorized Officer
8
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[REVERSE OF NOTE]
BOEING CAPITAL CORPORATION
Series XI SENIOR MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under an Indenture
dated as of June , 1999, and as amended, modified or supplemented from time to
time (the "Indenture"), between the Company and Bankers Trust Company, as
Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), 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 Debt Securities, and of the terms upon which the Debt Securities are, and
are to be, authenticated and delivered. This Note is one of the series of Debt
Securities designated as "Series XI Senior Medium-Term Notes Due Nine Months or
More From Date of Issue" (the "Notes"). All terms used but not defined in this
Note specified on the face hereof or in an Addendum hereto shall have the
meanings assigned to such terms in the Indenture.
This Note is issuable only in registered form without coupons in
denominations of U.S.$100,000 and integral multiples of $1,000 in excess thereof
or the minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company on
any date on and after the Initial Redemption Date, if any, specified on the face
hereof, in whole or from time to time in part in increments of U.S.$1,000 or, if
the Specified Currency is other than United States dollars, the minimum
Authorized Denomination specified on the face hereof (provided that any
remaining principal amount hereof shall be at least U.S.$100,000 or such minimum
Authorized Denomination), at the Redemption Price (as defined below), together
with unpaid interest accrued thereon to the date fixed for redemption (each,
a "Redemption Date"), on notice given no more than 60 nor less than 30
calendar days prior to the Redemption Date and in accordance with the
provisions of the Indenture. The "Redemption Price" shall initially be the
Initial Redemption Percentage specified on the face hereof multiplied by the
unpaid principal amount of this Note to be redeemed. The Initial Redemption
Percentage shall decline at each anniversary of the Initial Redemption Date
by the Annual Redemption Percentage Reduction, if any, specified on the face
hereof until the Redemption Price is 100% of unpaid principal amount to be
redeemed. In the event of redemption of this Note in part only, a new Note of
like tenor for the unredeemed portion hereof and otherwise having the same
terms as this Note shall be issued in the name of the holder hereof upon the
presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof (provided that any remaining principal
amount hereof shall be at least U.S.$100,000 or such minimum Authorized
Denomination), at a repayment price equal to 100% of the unpaid principal amount
to be repaid, together with unpaid interest accrued
9
<PAGE>
thereon to the date fixed for repayment (each, a "Repayment Date"). For this
Note to be repaid, this Note must be received, together with the form hereon
entitled "Option to Elect Repayment" duly completed, by the Trustee at its
corporate trust office not more than 60 nor less than 30 calendar days prior
to the Repayment Date. Exercise of such repayment option by the holder hereof
will be irrevocable. In the event of repayment of this Note in part only, a
new Note of like tenor for the unrepaid portion hereof and otherwise having
the same terms as this Note shall be issued in the name of the holder hereof
upon the presentation and surrender hereof.
If the Interest Category of this Note is specified on the face hereof
as an Original Issue Discount Note, the amount payable to the holder of this
Note in the event of redemption, repayment or acceleration of maturity of this
Note will be equal to the sum of (1) the Issue Price specified on the face
hereof (increased by any accruals of Discount, as defined below) and, in the
event of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage specified in the applicable Pricing Supplement (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (2)
any accrued and unpaid interest on this Note from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the case
may be. The difference between the Issue Price and 100% of the principal amount
of this Note is referred to herein as the "Discount", and the Discount will be
ratably accrued over the term of this Note for purposes of determining the
amount payable upon redemption, repayment or acceleration of maturity of this
Note.
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause an assumed yield on the
Note to be constant. The assumed constant yield will be calculated using a
30-day month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
coupon rate equal to the initial interest rate applicable to this Note and an
assumption that the maturity of this Note will not be accelerated. If the period
from the Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note" or an
"Inverse Floating Rate Note", this Note shall be designated as
a "Regular Floating Rate Note" and, except as set forth below
or on the face hereof, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any, in each case as
specified on the face hereof. Commencing on the Initial
Interest Reset Date, the rate at which interest on this Note
shall be payable shall be reset as of each Interest Reset Date
specified on the face hereof; PROVIDED, HOWEVER, that the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate.
(ii) If the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note", then, except
as set forth below or on the face hereof, this Note
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<PAGE>
shall bear interest at the rate determined by reference to the
applicable Interest Rate Basis or Bases (a) plus or minus the
Spread, if any, and/or (b) multiplied by the Spread
Multiplier, if any, in each case as specified on the face
hereof. Commencing on the Initial Interest Reset Date, the
rate at which interest on this Note shall be payable shall be
reset as of each Interest Reset Date; PROVIDED, HOWEVER, that
(y) the interest rate in effect for the period, if any, from
the Original Issue Date to the Initial Interest Reset Date
shall be the Initial Interest Rate and (z) the interest rate
in effect for the period commencing on the Fixed Rate
Commencement Date specified on the face hereof to the Maturity
Date shall be the Fixed Interest Rate specified on the face
hereof or, if no such Fixed Interest Rate is specified, the
interest rate in effect hereon on the day immediately
preceding the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on
the face hereof as an "Inverse Floating Rate Note", then,
except as set forth below or on the face hereof, this Note
shall bear interest at the Fixed Interest Rate minus the rate
determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any; PROVIDED,
HOWEVER, that, unless otherwise specified on the face hereof,
the interest rate hereon shall not be less than zero.
Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as
of each Interest Reset Date; PROVIDED, HOWEVER, that the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with respect to
each Interest Rate Basis will be determined in accordance with the applicable
provisions below. Except as set forth above or on the face hereof, the interest
rate in effect on each day shall be (i) if such day is an Interest Reset Date,
the interest rate determined as of the Interest Determination Date (as
hereinafter defined) immediately preceding such Interest Reset Date or (ii) if
such day is not an Interest Reset Date, the interest rate determined as of the
Interest Determination Date immediately preceding the most recent Interest Reset
Date. 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 LIBOR is an applicable Interest Rate Basis and such Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be determined by the Calculation Agent
as of the applicable Interest Determination Date and will be calculated by the
Calculation Agent on or prior to the Calculation Date (as defined below), except
with respect to LIBOR and the Eleventh District Cost of Funds Rate, which will
be calculated on such Interest Determination Date. The "Interest Determination
Date" with respect to the CD Rate, the CMT Rate, the Commercial Paper Rate, the
Federal Funds Rate and the Prime Rate will be the second Business Day
immediately preceding the applicable Interest Reset Date; the "Interest
Determination Date" with respect to the Eleventh District Cost of Funds Rate
shall be the last working day of the month immediately preceding the applicable
Interest Reset Date on which the Federal Home Loan Bank of San Francisco (the
"FHLB of San Francisco") publishes the Index (as defined below); and the
"Interest Determination Date" with respect to LIBOR shall 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
11
<PAGE>
Interest Reset Date. The "Interest Determination Date" with respect to the
Treasury Rate shall be the day in the week in which the applicable Interest
Reset Date falls on which day Treasury Bills (as defined below) are normally
auctioned (Treasury Bills are normally sold at an auction held on Monday of each
week, unless such Monday is a legal holiday, in which case the auction is
normally held on the immediately succeeding Tuesday, although such auction may
be held on the preceding Friday); PROVIDED, HOWEVER, that if an auction is held
on the Friday of the week preceding the applicable Interest Reset Date, the
"Interest Determination Date" shall be such preceding Friday. If the interest
rate of this Note is determined with reference to two or more Interest Rate
Bases specified on the face hereof, the "Interest Determination Date" pertaining
to this Note shall be the most recent Business Day which is at least two
Business Days prior to the applicable Interest Reset Date on which each Interest
Rate Basis is determinable. Each Interest Rate Basis shall be determined as of
such date, and the applicable interest rate shall take effect on the related
Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum hereto,
the rate with respect to each Interest Rate Basis will be determined in
accordance with the applicable provisions below.
CD RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published in H.15(519)
(as defined below) under the heading "CDs (secondary market)", or, if not
published by 3:00 P.M., New York City time, on the related Calculation Date, the
rate on such CD Rate Interest Determination Date for negotiable United States
dollar certificates of deposit of the Index Maturity as published in H.15 Daily
Update (as hereinafter defined), or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "CDs (secondary
market).". If such rate is not yet 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 CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent specified on the
face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable United States dollar certificates of deposit of
major United States money center banks for negotiable United States dollar
certificates of deposit with a remaining maturity closest to the Index Maturity
in an amount that is representative for a single transaction in that market at
that time; PROVIDED, HOWEVER, that if the dealers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the CD Rate determined as
of such CD Rate Interest Determination Date will be the CD Rate in effect on
such CD Rate 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.
CMT RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT Rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as the rate displayed on the Designated CMT Telerate Page (as
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<PAGE>
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, the rate on such CMT Rate Interest
Determination Date and (ii) if the Designated CMT Telerate Page is 7052, the
weekly or monthly average, as specified on the face hereof, for the week or
month, as applicable, ended immediately preceding the week or month, as
applicable, in which the related CMT Rate Interest Determination Date falls. If
such rate is no longer displayed on the relevant page or is not so displayed by
3:00 P.M., New York City time, on the related Calculation Date, then the CMT
Rate for such CMT Rate Interest Determination Date will be such treasury
constant maturity rate for the Designated CMT Maturity Index as published in
H.15(519). If such rate is no longer published or is not so published by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate on
such CMT Rate Interest Determination Date will be such treasury constant
maturity rate for the Designated CMT Maturity Index (or other United States
Treasury rate for the Designated CMT Maturity Index) for the CMT Rate Interest
Determination Date with respect to such Interest Reset 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 such information is not so provided by 3:00
P.M., New York City time, on the related Calculation Date, then the CMT Rate on
the CMT Rate Interest Determination Date will be calculated by the Calculation
Agent and will be a yield to maturity, based on the arithmetic mean of the
secondary market offered rates as of approximately 3:30 P.M., New York City
time, on such CMT Rate Interest Determination Date reported, according to their
written records, by three leading primary United States government securities
dealers (each, a "Reference Dealer") in The City of New York selected by the
Calculation Agent (from five such Reference Dealers selected by the Calculation
Agent and eliminating the highest quotation (or, in the event of equality, one
of the highest) and the lowest quotation (or, in the event of equality, one of
the lowest)), for the most recently issued 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 such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations, the
CMT Rate on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), 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 U.S.$100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offered rates obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT
Rate Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence 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.
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"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc. (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 Treasury Constant Maturities as reported in H.15(519) or, if no such
page is specified on the face hereof, page 7052.
"Designated CMT Maturity Index" means the original period to maturity
of the United States 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 or, if no such maturity is specified on the face hereof, 2 years.
COMMERCIAL PAPER RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the caption "Commercial
Paper-Nonfinancial" or, if not so published by 3:00 P.M., New York City time, on
the related Calculation Date, the rate on such Commercial Paper Rate Interest
Determination Date for commercial paper having the Index Maturity as published
in H.15 Daily Update, or such other recognized electronic source used for the
purpose of displaying such rate, under the caption "Commercial
Paper-Nonfinancial.". If such rate is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source by 3:00 P.M., New York City time,
on such Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the offered
rates at approximately 11:00 A.M., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of United States
dollar commercial paper in The City of New York selected by the Calculation
Agent for commercial paper having the Index Maturity placed for industrial
issuers whose bond rating is "Aa", or the equivalent, from a nationally
recognized statistical rating organization; PROVIDED, HOWEVER, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Commercial Paper Rate determined as of such Commercial Paper
Rate Interest Determination Date will be the Commercial Paper Rate in effect on
such Commercial Paper Rate Interest Determination Date.
"Money Market Yield" means 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 applicable Interest Reset Period.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on the display on Bridge Telerate,
Inc. (or any successor service) on page 7058 ("Telerate Page 7058") as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such
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rate does not appear on Telerate Page 7058 on such Eleventh District Cost of
Funds Rate Interest Determination Date, then the Eleventh District Cost of Funds
Rate on such Eleventh District Cost of Funds Rate Interest Determination Date
shall be the monthly weighted average cost of funds paid by member institutions
of the Eleventh Federal Home Loan Bank District that was most recently announced
(the "Index") by the FHLB of San Francisco as such cost of funds for the
calendar month immediately preceding such Eleventh District Cost of Funds Rate
Interest Determination Date. If the FHLB of San Francisco fails to announce the
Index on or prior to such Eleventh District Cost of Funds Rate Interest
Determination Date for the calendar month immediately preceding such Eleventh
District Cost of Funds Rate Interest Determination Date, the Eleventh District
Cost of Funds Rate determined as of such Eleventh District Cost of Funds Rate
Interest Determination Date will be the Eleventh District Cost of Funds Rate in
effect on such Eleventh District Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)", as such rate is displayed on Bridge Telerate, Inc. (or any
successor service) on page 120 (or any other page as may replace such page on
such service) ("Telerate Page 120"), or, if such rate does not appear on
Telerate page 120 or is not so published by 3:00 P.M., New York City time, on
the Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date for United States dollar federal funds 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 such rate does not
appear on Telerate Page 120 or is not yet 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 Federal Funds Rate on such Federal
Funds Interest Determination Date shall be calculated by the Calculation Agent
and will be the arithmetic mean of the rates for the last transaction in
overnight United States dollar federal funds arranged by three leading brokers
of United States dollar federal funds transactions in The City of New York
selected by the Calculation Agent, prior to 9:00 A.M., New York City time, on
such Federal Funds Rate Interest Determination Date; PROVIDED, HOWEVER, that if
the brokers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the Federal Funds Rate determined as of such Federal Funds Rate
Interest Determination Date will be the Federal Funds Rate in effect on such
Federal Funds Rate Interest Determination Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) (a) if "LIBOR Telerate" is specified on the face hereof or if
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof as
the method for calculating LIBOR, the rate for deposits in the Designated LIBOR
Currency having the Index Maturity specified in such Pricing Supplement,
commencing on such Interest Reset Date, that appears on the Designated LIBOR
Page (as defined below) as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date; or (b) if "LIBOR Reuters" is specified on the face hereof,
the arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case such
single rate will be used) for deposits in the Designated LIBOR Currency having
the Index Maturity, commencing on the applicable Interest Reset Date, that
appear (or, if only a single rate is
15
<PAGE>
required as aforesaid, appears) on the Designated LIBOR Page as of 11:00 A.M.,
London time, on such LIBOR Interest Determination Date. If fewer than two such
offered rates so appear, or if no such rate so appears, as applicable, LIBOR on
such LIBOR Interest Determination Date shall be determined in accordance with
the provisions described in clause (ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Designated
LIBOR Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in the
Designated LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in
the applicable Principal Financial Center, on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Designated LIBOR Currency to leading European
banks, having the Index Maturity and in a principal amount that is
representative for a single transaction in the Designated LIBOR Currency in such
market at such time; PROVIDED, HOWEVER, that if the banks so selected by the
Calculation Agent are not quoting as mentioned in this sentence, LIBOR
determined as of such LIBOR Interest Determination Date shall be LIBOR in effect
on such LIBOR Interest Determination Date.
"Designated LIBOR Currency" means the 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 (a) 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 Designated LIBOR Currency, or (b)
if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on Bridge Telerate, Inc. (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 Designated LIBOR Currency.
PRIME RATE. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
caption "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 Prime Rate 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 such rate is not yet 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, the Prime Rate shall be the arithmetic
mean of the rates of interest publicly
16
<PAGE>
announced by each bank that appears on the Reuters Screen US PRIME 1 Page (as
defined below) as such bank's prime rate or base lending rate as of 11:00 A.M.,
New York City time, on such Prime Rate Interest Determination. If fewer than
four such rates so appear on the Reuters Screen US PRIME 1 Page for such Prime
Rate Interest Determination Date, then the Prime Rate shall be the arithmetic
mean of the prime rates or base lending 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
such Prime Rate Interest Determination Date by three major banks in The City of
New York selected by the Calculation Agent; PROVIDED, HOWEVER, that if the banks
or trust companies so selected by the Calculation Agent are not quoting as
mentioned in this sentence, the Prime Rate determined as of such Prime Rate
Interest Determination Date will be the Prime Rate in effect on such Prime Rate
Interest Determination Date.
"Reuters Screen US PRIME 1 Page" means the display on the Reuter
Monitor Money Rates Service (or any successor service) on the "US PRIME 1" Page
(or such other page as may replace the US PRIME 1 Page on such service) for the
purpose of displaying prime rates or base lending rates of major United States
banks.
TREASURY RATE. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of the United
States ("Treasury Bills") having the Index Maturity under the caption "AVGE
INVEST YIELD" on the display on Bridge Telerate, Inc. (or any successor service)
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") or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the auction average rate of
such Treasury Bills (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the Auction of Treasury Bills having the Index Maturity are not so
published by 3:00 P.M., New York City time, on such Calculation Date, or if no
such Auction is held, then the Treasury Rate will be the rate (expressed as a
bond equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) on such Treasury Rate Interest Determination Date of
Treasury Bills having the Index Maturity 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 Treasury Rate 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 yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source, then the Treasury Rate shall be calculated by the Calculation Agent and
shall be a yield to maturity (expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Treasury Rate Interest Determination Date, of
three leading primary United States government securities dealers selected by
the Calculation Agent, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity; PROVIDED, HOWEVER, that if the dealers so
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Treasury Rate determined as of such Treasury Rate Interest Determination
Date will be the Treasury Rate in effect on such Treasury Rate Interest
Determination Date.
17
<PAGE>
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note 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 Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable, pertaining
to any Interest Determination Date shall be the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or the Maturity Date,
as the case may be. At the request of the Holder hereof, the Calculation Agent
will provide to the Holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless otherwise specified as the Day Count
Convention on the face hereof, the interest factor for each such date shall be
computed by dividing the interest rate applicable to such day by 360 if the CD
Rate, the Commercial Paper Rate, the Eleventh District Cost of Funds Rate, the
Federal Funds Rate, LIBOR or the Prime Rate is an applicable Interest Rate Basis
or by the actual number of days in the year if the CMT Rate or the Treasury Rate
is an applicable Interest Rate Basis. Unless otherwise specified as the Day
Count Convention on the face hereof, the interest factor for this Note, if the
interest rate is calculated with reference to two or more Interest Rate Bases,
shall be calculated in each period in the same manner as if only the Applicable
Interest Rate Basis specified on the face hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
If an Event of Default, as defined in the Indenture, shall occur and be
continuing, the principal of the Notes may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture contains provisions for defeasance of (i) the entire
indebtedness of the Notes or (ii) certain covenants and Events of Default with
respect to the Notes, in each case upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
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 Debt Securities at any time by the
Company and the Trustee with the consent of the holders of not less than 66-K %
in principal amount of the Outstanding Debt Securities of each series affected
thereby. The Indenture also contains provisions permitting the holders of at
least 66-K% in principal amount of the Outstanding Debt Securities of any
series, on behalf of the holders of all such Debt Securities of such series, to
waive compliance by the Company with certain provisions of the Indenture.
Furthermore, provisions in the Indenture permit the holders of not less than a
majority in principal amount of the
18
<PAGE>
Outstanding Debt Securities of any series, in certain instances, to waive, on
behalf of all of the holders of Debt Securities of such series, certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the holder of this Note shall be conclusive and binding upon such holder and
upon all future holders of this Note and other Notes issued upon the
registration of transfer hereof or in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or
of the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay principal, premium, if any, and interest in
respect of this Note at the times, places and rate or formula, and in the coin
or currency, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, the transfer of this Note is registrable in the Security
Register of the Company upon surrender of this Note for registration of transfer
at the office or agency of the Company in any place where the principal hereof
and any premium or interest hereon are payable, duly endorsed by, or accompanied
by a written instrument of transfer in form satisfactory to the Company and the
Security Registrar duly executed by, the holder hereof or by his attorney duly
authorized in writing, and thereupon one or more new Notes, of authorized
denominations and for the same aggregate principal amount, will be issued to the
designated transferee or transferees.
As provided in the Indenture and subject to certain limitations therein
and herein set forth, this Note is exchangeable for a like aggregate principal
amount of Notes of different authorized denominations but otherwise having the
same terms and conditions, as requested by the holder hereof surrendering the
same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
THE INDENTURE AND THIS NOTE 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 ENTIRELY IN SUCH STATE.
19
<PAGE>
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of
survivorship and not as tenants under Uniform Gifts to Minors
in common 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 typewrite name and address including postal zip code of assignee)
______________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________________
---------------------------------------
Notice: The signature(s) on this assignment must
correspond with the name(s) as written upon the face
of this Note in every particular, without alteration
or enlargement or any change whatsoever.
20
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at _________________________
- ----------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, currently located at __________________________________________,
not more than 60 nor less than 30 calendar days prior to the Repayment Date,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (each of which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid:
Notice: The signature(s) on this Option to
Date: Elect Repayment must correspond with the name(s) as
------------ written upon the face of this Note in every
particular, without alteration or enlargement or any
change whatsoever.
21
<PAGE>
Exhibit 4(f)
[FACE OF NOTE]
UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (THE "DEPOSITARY") (55 WATER STREET, NEW YORK, NEW YORK) TO THE
ISSUER HEREOF OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME
AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY AND ANY PAYMENT
IS MADE TO CEDE & CO., 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.(1)
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN CERTIFICATED
FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE DEPOSITARY OR
ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY SUCH NOMINEE TO A
SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITARY.(2)
REGISTERED CUSIP No.: PRINCIPAL AMOUNT:
No. SNR/FLR-
BOEING CAPITAL CORPORATION
Series XI SUBORDINATED MEDIUM-TERM NOTE
(Floating Rate)
INTEREST RATE BASIS ORIGINAL ISSUE DATE: STATED MATURITY DATE:
OR BASES:
IF LIBOR: IF CMT RATE:
[ ] LIBOR Reuters Designated CMT Telerate Page:
Page: If Telerate Page 7052:
[ ] Weekly Average
[ ] Monthly Average
[ ] LIBOR Telerate Designated CMT Maturity Index:
Page:
DESIGNATED LIBOR CURRENCY:
INDEX MATURITY: INITIAL INTEREST RATE: % INITIAL INTEREST RESET DATE:
- -------------------------------------
(1) This paragraph applies to global Notes only.
(2) This paragraph applies to global Notes only.
<PAGE>
SPREAD (PLUS OR MINIMUM INTEREST RATE: % INTEREST PAYMENT DATE(S):
MINUS):
SPREAD MULTIPLIER: MAXIMUM INTEREST RATE: % INTEREST RESET DATE(S):
INITIAL REDEMPTION INITIAL REDEMPTION ANNUAL REDEMPTION
DATE: PERCENTAGE: % PERCENTAGE REDUCTION: %
OPTIONAL REPAYMENT CALCULATION AGENT:
DATE(S): (if other than Bankers Trust Company)
INTEREST CATEGORY: DAY COUNT CONVENTION:
[ ] Regular Floating Rate Note [ ] 30/360 for the period
[ ] Floating Rate/Fixed Rate Note from to .
Fixed Rate Commencement Date: [ ] Actual/360 for the period
Fixed Interest Rate: % from to .
[ ] Inverse Floating Rate Note [ ] Actual/Actual for the period
Fixed Interest Rate: % from to .
[ ] Original Issue Discount Note Applicable Interest Rate Basis:
Issue Price: %
SPECIFIED CURRENCY: AUTHORIZED DENOMINATIONS:
[ ] United States dollars [ ] $100,000 and integral multiples
of $1,000 in excess thereof
[ ] Other: [ ] Other:
EXCHANGE RATE AGENT:
ADDENDUM ATTACHED
[ ] Yes
[ ] No
OTHER/ADDITIONAL PROVISIONS:
2
<PAGE>
Boeing Capital Corporation, a Delaware corporation (the "Company",
which term includes any successor corporation under the Subordinated Indenture
hereinafter referred to), for value received, hereby promises to pay to ,
or registered assigns, the principal sum of , on the Stated Maturity
Date specified above (or any Redemption Date or Repayment Date, each as defined
on the reverse hereof) (each such Stated Maturity Date, Redemption Date and
Repayment Date and any other date on which the principal or an installment of
principal of this Note shall become due and payable, whether by declaration of
acceleration or otherwise, being hereinafter referred to as the "Maturity Date"
with respect to the principal repayable on such date) and to pay interest
thereon, at a rate per annum equal to the Initial Interest Rate specified above
until the Initial Interest Reset Date specified above and thereafter at a rate
determined in accordance with the provisions specified above and on the reverse
hereof with respect to one or more Interest Rate Bases specified above until the
principal hereof is paid or duly made available for payment. The Company will
pay interest in arrears on each Interest Payment Date, if any, specified above
(each, an "Interest Payment Date"), commencing with the first Interest Payment
Date next succeeding the Original Issue Date specified above, and on the
Maturity Date; PROVIDED, HOWEVER, that if the Original Issue Date occurs between
a Record Date (as defined below) and the next succeeding Interest Payment Date,
interest payments will commence on the second Interest Payment Date next
succeeding the Original Issue Date to the holder of this Note on the Record Date
with respect to such second Interest Payment Date.
References herein to "this Note", "hereof", "herein" and comparable
terms shall include an Addendum hereto if an Addendum is specified above.
Notwithstanding anything else contained herein, if this Note is a
Global Security and is held in book-entry form through the facilities of the
Depositary, payments on this Note will be made to the Depositary or its nominee
in accordance with the arrangements then in effect between the Trustee and the
Depositary.
Interest on this Note 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 with respect to this Note) 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, subject to certain exceptions
described herein, be paid to the person in whose name this Note (or one or more
predecessor Notes) is registered at the close of business on the fifteenth
calendar day (whether or not a Business Day, as defined on the reverse hereof)
immediately preceding such Interest Payment Date (the "Record Date"); PROVIDED,
HOWEVER, that interest payable on the Maturity Date will be payable to the
person to whom the principal hereof and premium, if any, hereon shall be
payable. Any such interest not so punctually paid or duly provided for
("Defaulted Interest") will forthwith cease to be payable to the holder on any
Record Date, and shall be paid to the person in whose name this Note 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 hereinafter referred to, notice whereof shall be given to the holder of
this Note by the Trustee not less than 10 calendar days prior to such Special
Record Date or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which this Note
may be listed,
3
<PAGE>
and upon such notice as may be required by such exchange, all as more fully
provided for in the Subordinated Indenture.
Payment of principal, premium, if any, and interest in respect of this
Note due on the Maturity Date will be made in immediately available funds upon
presentation and surrender of this Note (and, with respect to any applicable
repayment of this Note, a duly completed election form as contemplated on the
reverse hereof) at the corporate trust office of the Trustee maintained for that
purpose in The Borough of Manhattan, The City of New York, currently located at
Four Albany Street, New York, New York 10015, or at such other paying agency in
The Borough of Manhattan, The City of New York, as the Company may determine;
PROVIDED, HOWEVER, that if such payment is to be made in a Specified Currency
other than United States dollars as set forth below, such payment will be made
by wire transfer of immediately available funds to an account with a bank
designated by the holder hereof at least 15 calendar days prior to the Maturity
Date, provided that such bank has appropriate facilities therefor and that this
Note (and, if applicable, a duly completed election form) is presented and
surrendered at the aforementioned office of the Trustee in time for the Trustee
to make such payment in such funds in accordance with its normal procedures.
Payment of interest due on any Interest Payment Date other than the Maturity
Date will be made by check mailed to the address of the person entitled thereto
as such address shall appear in the Security Register maintained at the
aforementioned office of the Trustee; PROVIDED, HOWEVER, that a holder of
U.S.$10,000,000 (or, if the Specified Currency specified above is other than
United States dollars, the equivalent thereof in the Specified Currency) or more
in aggregate principal amount of Notes (whether having identical or different
terms and provisions) will be entitled to receive interest payments on such
Interest Payment Date by wire transfer of immediately available funds if
appropriate wire transfer instructions have been received in writing by the
Trustee not less than 15 calendar days prior to such Interest Payment Date. Any
such wire transfer instructions received by the Trustee shall remain in effect
until revoked by such holder.
If any Interest Payment Date other than the Maturity Date would
otherwise be a day that is not a Business Day, such Interest Payment Date shall
be postponed to the next succeeding Business Day, except that if LIBOR is an
applicable Interest Rate Basis and such Business Day falls in the next
succeeding calendar month, such Interest Payment Date shall be the immediately
preceding Business Day. If the Maturity Date falls on a day that is not a
Business Day, the required payment of principal, premium, if any, and interest
shall be made on the next succeeding Business Day with the same force and effect
as if made on the date such payment was due, and no interest shall accrue with
respect to such payment for the period from and after the Maturity Date to the
date of such payment on the next succeeding Business Day.
As used herein, "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 if the Specified Currency is other
than United States dollars, 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 below) of the country issuing the
Specified Currency (or, if the Specified Currency is 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 if LIBOR is an
applicable Interest Rate Basis, such day is also a London Business
4
<PAGE>
Day (as defined below). "London Business Day" means a day on which commercial
banks are open for business (including dealings in the Designated LIBOR Currency
(as defined on the reverse hereof)) 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 Designated LIBOR Currency relates,
as applicable, except, in the case of (i) or (ii), 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
with respect to the Specified Currency) Melbourne, Toronto, Frankfurt,
Amsterdam, London (solely in the case of the Designated LIBOR Currency),
Johannesburg and Zurich, respectively.
The Company is obligated to make payments of principal, premium, if
any, and interest in respect of this Note in the Specified Currency (or, if the
Specified Currency is not at the time of such payment legal tender for the
payment of public and private debts, in such other coin or currency of the
country which issued the Specified Currency as at the time of such payment is
legal tender for the payment of such debts). If the Specified Currency is other
than United States dollars, any such amounts so payable by the Company will be
converted by the Exchange Rate Agent specified above into United States dollars
for payment to the holder of this Note.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive any amount payable hereunder in such
Specified Currency. If the holder of this Note shall not have duly made an
election to receive all or a specified portion of any payment of principal,
premium, if any, and/or interest in respect of this Note in the Specified
Currency, any United States dollar amount to be received by the holder of this
Note will be based on the highest bid quotation in The City of New York received
by 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 the Company for the purchase
by the quoting dealer of the Specified Currency for United States dollars for
settlement on such payment date in the aggregate amount of the Specified
Currency payable to all holders of Notes scheduled to receive United States
dollar payments and at which the applicable dealer commits to execute a
contract. All currency exchange costs will be borne by the holder of this Note
by deductions from such payments. If three such bid quotations are not
available, payments on this Note will be made in the Specified Currency.
If the Specified Currency is other than United States dollars, the
holder of this Note may elect to receive all or a specified portion of any
payment of principal, premium, if any, and/or interest in respect of this Note
in the Specified Currency by submitting a written request for such payment to
the Trustee at its corporate trust office in The City of New York on or prior to
the applicable Record Date or at least 15 calendar days prior to the Maturity
Date, as the case may be. Such written request may be mailed or hand delivered
or sent by cable, telex or other form of facsimile transmission. The holder of
this Note may elect to receive all or a specified portion of all future payments
in the Specified Currency in respect of such principal, premium, if any, and/or
interest 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 Record Date or at least 15 calendar days prior to the
Maturity Date, as the case may be.
5
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If the Specified Currency is other than United States dollars or a
composite currency and the holder of this Note shall have duly made an election
to receive all or a specified portion of any payment of principal, premium, if
any, and/or interest in respect of this Note in the Specified Currency and if
the Specified Currency is not available due to the imposition of exchange
controls or other circumstances beyond the control of the Company, the Company
will be entitled to satisfy its obligations to the holder of this Note by making
such payment in United States dollars on the basis of the Market Exchange Rate
(as defined below) on the second Business Day prior to such payment date or, if
such Market Exchange Rate is not then available, on the basis of the most
recently available Market Exchange Rate or as otherwise specified on the face
hereof. The "Market Exchange Rate" for the Specified Currency means the noon
dollar buying rate in The City of New York for cable transfers for the Specified
Currency as certified for customs purposes by (or if not so certified, as
otherwise determined by) the Federal Reserve Bank of New York. Any payment made
under such circumstances in United States dollars will not constitute an Event
of Default (as defined in the Subordinated Indenture).
If the Specified Currency is a composite currency and the holder of
this Note shall have duly made an election to receive all or a specified portion
of any payment of principal, premium, if any, and/or interest in respect of this
Note in the Specified Currency and if such composite currency is unavailable due
to the imposition of exchange controls or other circumstances beyond the control
of the Company, then the Company will be entitled to satisfy its obligations to
the holder of this Note by making such payment in United States dollars. The
amount of each payment in United States dollars shall be computed by the
Exchange Rate Agent on the basis of the equivalent of the composite currency in
United States dollars. The component currencies of the composite currency for
this purpose (collectively, the "Component Currencies" and each, a "Component
Currency") shall be the currency amounts that were components of the composite
currency as of the last day on which the composite currency was used. The
equivalent of the composite currency in United States dollars shall be
calculated by aggregating the United States dollar equivalents of the Component
Currencies. The United States dollar equivalent of each of the Component
Currencies shall be determined by the Exchange Rate Agent on the basis of the
most recently available Market Exchange Rate for each such Component Currency,
or as otherwise specified on the face hereof.
If the official unit of any Component Currency is altered by way of
combination or subdivision, the number of units of the currency as a Component
Currency shall be divided or multiplied in the same proportion. If two or more
Component Currencies are consolidated into a single currency, the amounts of
those currencies as Component Currencies shall be replaced by an amount in such
single currency equal to the sum of the amounts of the consolidated Component
Currencies expressed in such single currency. If any Component Currency is
divided into two or more currencies, the amount of the original Component
Currency shall be replaced by the amounts of such two or more currencies, the
sum of which shall be equal to the amount of the original Component Currency.
All determinations referred to above made by the Exchange Rate Agent
shall be at its sole discretion and shall, in the absence of manifest error, be
conclusive for all purposes and binding on the holder of this Note.
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The Company agrees to indemnify the holder of any Note against any loss
incurred by such holder as a result of any judgment or order being given or made
against the Company for any amount due hereunder and such judgment or order
requiring payment in a currency (the "Judgment Currency") other than the
Specified Currency, and as a result of any variation between (i) the rate of
exchange at which the Specified Currency amount is converted into the Judgment
Currency for the purpose of such judgment or order, and (ii) the rate of
exchange at which such holder, on the date of payment of such judgment or order,
is able to purchase the Specified Currency with the amount of the Judgment
Currency actually received by such holder, as the case may be. The foregoing
indemnity constitutes a separate and independent obligation of the Company and
continues in full force and effect notwithstanding any such judgment or order as
aforesaid. The term "rate of exchange" includes any premiums and costs of
exchange payable in connection with the purchase of, or conversion into, the
relevant currency.
Notwithstanding any provisions to the contrary contained herein, if the
face of this Note specifies that an Addendum is attached hereto or that
"Other/Additional Provisions" apply, this Note shall be subject to the terms set
forth in such Addendum or such "Other/Additional Provisions".
Reference is hereby made to the further provisions of this Note set
forth on the reverse hereof and, if so specified above, in the Addendum hereto,
which further provisions shall have the same force and effect as if set forth on
the face hereof.
Unless the Certificate of Authentication hereon has been executed by
the Trustee by manual signature, this Note shall not be entitled to any benefit
under the Subordinated Indenture or be valid or obligatory for any purpose.
7
<PAGE>
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed, manually or in facsimile, and an imprint or facsimile of its corporate
seal to be imprinted hereon.
[SEAL] BOEING CAPITAL CORPORATION
By________________________________
Title:
Attest:
By:__________________________
Title:
Dated:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION:
This is one of the Debt Securities of
the series designated therein referred
to in the within-mentioned Subordinated Indenture.
BANKERS TRUST COMPANY,
as Trustee
By___________________________
Authorized Officer
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<PAGE>
[REVERSE OF NOTE]
BOEING CAPITAL CORPORATION
Series XI SUBORDINATED MEDIUM-TERM NOTE
(Floating Rate)
This Note is one of a duly authorized series of Debt Securities (the
"Debt Securities") of the Company issued and to be issued under a Subordinated
Indenture, dated as of June __, 1999, and as amended, modified or supplemented
from time to time (the "Subordinated Indenture"), between the Company and
Bankers Trust Company, as successor Trustee (the "Trustee", which term includes
any successor trustee under the Subordinated Indenture), to which Subordinated
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 Debt Securities,
and of the terms upon which the Debt Securities are, and are to be,
authenticated and delivered. This Note is one of the series of Debt Securities
designated as "Series XI Subordinated Medium-Term Notes Due Nine Months or More
From Date of Issue" (the "Notes"). All terms used but not defined in this Note
specified on the face hereof or in an Addendum hereto shall have the meanings
assigned to such terms in the Subordinated Indenture.
This Note is issuable only in registered form without coupons in
denominations of U.S.$100,000 and integral multiples of $1,000 in excess thereof
or the minimum Authorized Denomination specified on the face hereof.
This Note will not be subject to any sinking fund and, unless otherwise
provided on the face hereof in accordance with the provisions of the following
two paragraphs, will not be redeemable or repayable prior to the Stated Maturity
Date.
This Note will be subject to redemption at the option of the Company
on any date on and after the Initial Redemption Date, if any, specified on
the face hereof, in whole or from time to time in part in increments of
U.S.$1,000 or, if the Specified Currency is other than United States dollars,
the minimum Authorized Denomination specified on the face hereof (provided
that any remaining principal amount hereof shall be at least U.S.$100,000 or
such minimum Authorized Denomination), at the Redemption Price (as defined
below), together with unpaid interest accrued thereon to the date fixed for
redemption (each, a "Redemption Date"), on notice given no more than 60 nor
less than 30 calendar days prior to the Redemption Date and in accordance
with the provisions of the Indenture. The "Redemption Price" shall initially
be the Initial Redemption Percentage specified on the face hereof multiplied
by the unpaid principal amount of this Note to be redeemed. The Initial
Redemption Percentage shall decline at each anniversary of the Initial
Redemption Date by the Annual Redemption Percentage Reduction, if any,
specified on the face hereof until the Redemption Price is 100% of unpaid
principal amount to be redeemed. In the event of redemption of this Note in
part only, a new Note of like tenor for the unredeemed portion hereof and
otherwise having the same terms as this Note shall be issued in the name of
the holder hereof upon the presentation and surrender hereof.
This Note will be subject to repayment by the Company at the option of
the holder hereof on the Optional Repayment Date(s), if any, specified on the
face hereof, in whole or in part in increments of U.S.$1,000 or, if the
Specified Currency is other than United States dollars, the
9
<PAGE>
minimum Authorized Denomination specified on the face hereof (provided that
any remaining principal amount hereof shall be at least U.S.$100,000 or such
minimum Authorized Denomination), at a repayment price equal to 100% of the
unpaid principal amount to be repaid, together with unpaid interest accrued
thereon to the date fixed for repayment (each, a "Repayment Date"). For this
Note to be repaid, this Note must be received, together with the form hereon
entitled "Option to Elect Repayment" duly completed, by the Trustee at its
corporate trust office not more than 60 nor less than 30 calendar days prior
to the Repayment Date. Exercise of such repayment option by the holder hereof
will be irrevocable. In the event of repayment of this Note in part only, a
new Note of like tenor for the unrepaid portion hereof and otherwise having
the same terms as this Note shall be issued in the name of the holder hereof
upon the presentation and surrender hereof.
If the Interest Category of this Note is specified on the face hereof
as an Original Issue Discount Note, the amount payable to the holder of this
Note in the event of redemption, repayment or acceleration of maturity of this
Note will be equal to the sum of (1) the Issue Price specified on the face
hereof (increased by any accruals of Discount, as defined below) and, in the
event of any redemption of this Note (if applicable), multiplied by the Initial
Redemption Percentage specified in the applicable Pricing Supplement (as
adjusted by the Annual Redemption Percentage Reduction, if applicable) and (2)
any accrued and unpaid interest on this Note from the Original Issue Date to the
Redemption Date, Repayment Date or date of acceleration of maturity, as the case
may be. The difference between the Issue Price and 100% of the principal amount
of this Note is referred to herein as the "Discount", and the Discount will be
ratably accrued over the term of this Note for purposes of determining the
amount payable upon redemption, repayment or acceleration of maturity of this
Note.
For purposes of determining the amount of Discount that has accrued as
of any Redemption Date, Repayment Date or date of acceleration of maturity of
this Note, such Discount will be accrued so as to cause an assumed yield on the
Note to be constant. The assumed constant yield will be calculated using a
30-day month, 360-day year convention, a compounding period that, except for the
Initial Period (as defined below), corresponds to the shortest period between
Interest Payment Dates (with ratable accruals within a compounding period), a
coupon rate equal to the initial interest rate applicable to this Note and an
assumption that the maturity of this Note will not be accelerated. If the period
from the Original Issue Date to the initial Interest Payment Date (the "Initial
Period") is shorter than the compounding period for this Note, a proportionate
amount of the yield for an entire compounding period will be accrued. If the
Initial Period is longer than the compounding period, then such period will be
divided into a regular compounding period and a short period, with the short
period being treated as provided in the preceding sentence.
The interest rate borne by this Note will be determined as follows:
(i) Unless the Interest Category of this Note is specified on
the face hereof as a "Floating Rate/Fixed Rate Note" or an
"Inverse Floating Rate Note", this Note shall be designated as
a "Regular Floating Rate Note" and, except as set forth below
or on the face hereof, shall bear interest at the rate
determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any, in each case as
specified on
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the face hereof. Commencing on the Initial Interest Reset
Date, the rate at which interest on this Note shall be payable
shall be reset as of each Interest Reset Date specified on the
face hereof; PROVIDED, HOWEVER, that the interest rate in
effect for the period, if any, from the Original Issue Date to
the Initial Interest Reset Date shall be the Initial Interest
Rate.
(ii) If the Interest Category of this Note is specified on the
face hereof as a "Floating Rate/Fixed Rate Note", then, except
as set forth below or on the face hereof, this Note shall bear
interest at the rate determined by reference to the applicable
Interest Rate Basis or Bases (a) plus or minus the Spread, if
any, and/or (b) multiplied by the Spread Multiplier, if any.
Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as
of each Interest Reset Date; PROVIDED, HOWEVER, that (y) the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate and (z) the interest rate in
effect for the period commencing on the Fixed Rate
Commencement Date specified on the face hereof to the Maturity
Date shall be the Fixed Interest Rate specified on the face
hereof or, if no such Fixed Interest Rate is specified, the
interest rate in effect hereon on the day immediately
preceding the Fixed Rate Commencement Date.
(iii) If the Interest Category of this Note is specified on
the face hereof as an "Inverse Floating Rate Note", then,
except as set forth below or on the face hereof, this Note
shall bear interest at the Fixed Interest Rate minus the rate
determined by reference to the applicable Interest Rate Basis
or Bases (a) plus or minus the Spread, if any, and/or (b)
multiplied by the Spread Multiplier, if any; PROVIDED,
HOWEVER, that, unless otherwise specified on the face hereof,
the interest rate hereon shall not be less than zero.
Commencing on the Initial Interest Reset Date, the rate at
which interest on this Note shall be payable shall be reset as
of each Interest Reset Date; PROVIDED, HOWEVER, that the
interest rate in effect for the period, if any, from the
Original Issue Date to the Initial Interest Reset Date shall
be the Initial Interest Rate.
Unless otherwise specified on the face hereof, the rate with respect to
each Interest Rate Basis will be determined in accordance with the applicable
provisions below. Except as set forth above or on the face hereof, the interest
rate in effect on each day shall be (i) if such day is an Interest Reset Date,
the interest rate determined as of the Interest Determination Date (as
hereinafter defined) immediately preceding such Interest Reset Date or (ii) if
such day is not an Interest Reset Date, the interest rate determined as of the
Interest Determination Date immediately preceding the most recent Interest Reset
Date. 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 LIBOR is an applicable Interest Rate Basis and such Business
Day falls in the next succeeding calendar month, such Interest Reset Date shall
be the immediately preceding Business Day.
The interest rate applicable to each Interest Reset Period commencing
on the related Interest Reset Date will be determined by the Calculation Agent
as of the applicable Interest
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<PAGE>
Determination Date and will be calculated by the Calculation Agent on or prior
to the Calculation Date (as defined below), except with respect to LIBOR and the
Eleventh District Cost of Funds Rate, which will be calculated on such Interest
Determination Date. The "Interest Determination Date" with respect to the CD
Rate, the CMT Rate, the Commercial Paper Rate, the Federal Funds Rate and the
Prime Rate will be the second Business Day immediately preceding the applicable
Interest Reset Date; the "Interest Determination Date" with respect to the
Eleventh District Cost of Funds Rate shall be the last working day of the month
immediately preceding the applicable Interest Reset Date on which the Federal
Home Loan Bank of San Francisco (the "FHLB of San Francisco") publishes the
Index (as defined below); and the "Interest Determination Date" with respect to
LIBOR shall 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" with respect
to the Treasury Rate shall be the day in the week in which the applicable
Interest Reset Date falls on which day Treasury Bills (as defined below) are
normally auctioned (Treasury Bills are normally sold at an auction held on
Monday of each week, unless such Monday is a legal holiday, in which case the
auction is normally held on the immediately succeeding Tuesday, although such
auction may be held on the preceding Friday); PROVIDED, HOWEVER, that if an
auction is held on the Friday of the week preceding the applicable Interest
Reset Date, the "Interest Determination Date" shall be such preceding Friday. If
the interest rate of this Note is determined with reference to two or more
Interest Rate Bases specified on the face hereof, the "Interest Determination
Date" pertaining to this Note shall be the most recent Business Day which is at
least two Business Days prior to the applicable Interest Reset Date on which
each Interest Rate Basis is determinable. Each Interest Rate Basis shall be
determined as of such date, and the applicable interest rate shall take effect
on the related Interest Reset Date.
Unless otherwise specified on the face hereof or in an Addendum hereto,
the rate with respect to each Interest Rate Basis will be determined in
accordance with the applicable provisions below.
CD RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CD Rate, the CD Rate shall be determined as of the applicable
Interest Determination Date (a "CD Rate Interest Determination Date") as the
rate on such date for negotiable United States dollar certificates of deposit
having the Index Maturity specified on the face hereof as published in H.15(519)
(as defined below) under the heading "CDs (secondary market)", or, if not
published by 3:00 P.M., New York City time, on the related Calculation Date, the
rate on such CD Rate Interest Determination Date for negotiable United States
dollar certificates of deposit of the Index Maturity as published in H.15 Daily
Update (as hereinafter defined), or such other recognized electronic source used
for the purpose of displaying such rate, under the caption "CDs (secondary
market)". If such rate is not yet 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 CD Rate on such CD Rate Interest
Determination Date will be calculated by the Calculation Agent specified on the
face hereof and will be the arithmetic mean of the secondary market offered
rates as of 10:00 A.M., New York City time, on such CD Rate Interest
Determination Date, of three leading nonbank dealers in negotiable United States
dollar certificates of deposit in The City of New York selected by the
Calculation Agent for negotiable United States dollar certificates of deposit of
major United States money center banks for
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<PAGE>
negotiable United States dollar certificates of deposit with a remaining
maturity closest to the Index Maturity in an amount that is representative for a
single transaction in that market at that time; PROVIDED, HOWEVER, that if the
dealers so selected by the Calculation Agent are not quoting as mentioned in
this sentence, the CD Rate determined as of such CD Rate Interest Determination
Date will be the CD Rate in effect on such CD Rate 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.
CMT RATE. If an Interest Rate Basis for this Note is specified on the
face hereof as the CMT Rate, the CMT Rate shall be determined as of the
applicable Interest Determination Date (a "CMT Rate Interest Determination
Date") as 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, the rate on such CMT Rate Interest Determination Date and
(ii) if the Designated CMT Telerate Page is 7052, the weekly or monthly average,
as specified on the face hereof, for the week or month, as applicable, ended
immediately preceding the week or month, as applicable, in which the related CMT
Rate Interest Determination Date falls. If such rate is no longer displayed on
the relevant page or is not so displayed by 3:00 P.M., New York City time, on
the related Calculation Date, then the CMT Rate for such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index as published in H.15(519). If such rate is no
longer published or is not so published by 3:00 P.M., New York City time, on the
related Calculation Date, then the CMT Rate on such CMT Rate Interest
Determination Date will be such treasury constant maturity rate for the
Designated CMT Maturity Index (or other United States Treasury rate for the
Designated CMT Maturity Index) for the CMT Rate Interest Determination Date with
respect to such Interest Reset 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 such information is not so provided by 3:00 P.M., New York City
time, on the related Calculation Date, then the CMT Rate on the CMT Rate
Interest Determination Date will be calculated by the Calculation Agent and will
be a yield to maturity, based on the arithmetic mean of the secondary market
offered rates as of approximately 3:30 P.M., New York City time, on such CMT
Rate Interest Determination Date reported, according to their written records,
by three leading primary United States government securities dealers (each, a
"Reference Dealer") in The City of New York selected by the Calculation Agent
(from five such Reference Dealers selected by the Calculation Agent and
eliminating the highest quotation (or, in the event of equality, one of the
highest) and the lowest quotation (or, in the event of equality, one of the
lowest)), for the most recently issued 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 such Designated CMT Maturity Index minus one year. If the
Calculation Agent is unable to obtain three such Treasury Note quotations, the
CMT
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Rate on such CMT Rate Interest Determination Date will be calculated by the
Calculation Agent and will be a yield to maturity based on the arithmetic mean
of the secondary market offered rates as of approximately 3:30 P.M., New York
City time, on such CMT Rate Interest Determination Date of three Reference
Dealers in The City of New York (from five such Reference Dealers selected by
the Calculation Agent and eliminating the highest quotation (or, in the event of
equality, one of the highest) and the lowest quotation (or, in the event of
equality, one of the lowest)), 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 U.S.$100 million. If three or four (and not
five) of such Reference Dealers are quoting as described above, then the CMT
Rate will be based on the arithmetic mean of the offered rates obtained and
neither the highest nor the lowest of such quotes will be eliminated; provided,
however, that if fewer than three Reference Dealers selected by the Calculation
Agent are quoting as mentioned herein, the CMT Rate determined as of such CMT
Rate Interest Determination Date will be the CMT Rate in effect on such CMT Rate
Interest Determination Date. If two Treasury Notes with an original maturity as
described in the second preceding sentence 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.
"Designated CMT Telerate Page" means the display on Bridge Telerate,
Inc. (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 Treasury Constant Maturities as reported in H.15(519) or, if no such
page is specified on the face hereof, page 7052.
"Designated CMT Maturity Index" means the original period to maturity
of the United States 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 or, if no such maturity is specified on the face hereof, 2 years.
COMMERCIAL PAPER RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Commercial Paper Rate, the Commercial Paper
Rate shall be determined as of the applicable Interest Determination Date (a
"Commercial Paper Rate Interest Determination Date") as the Money Market Yield
(as defined below) on such date of the rate for commercial paper having the
Index Maturity as published in H.15(519) under the caption "Commercial
Paper-Nonfinancial" or, if not so published by 3:00 P.M., New York City time, on
the related Calculation Date, the rate on such Commercial Paper Rate Interest
Determination Date for commercial paper having the Index Maturity as published
in H.15 Daily Update, or such other recognized electronic source used for the
purpose of displaying such rate, under the caption "Commercial
Paper-Nonfinancial.". If such rate is not yet published in H.15(519), H.15 Daily
Update or another recognized electronic source by 3:00 P.M., New York City time,
on such Calculation Date, then the Commercial Paper Rate on such Commercial
Paper Rate Interest Determination Date will be calculated by the Calculation
Agent and shall be the Money Market Yield of the arithmetic mean of the offered
rates at approximately 11:00 A.M., New York City time, on such Commercial Paper
Rate Interest Determination Date of three leading dealers of United States
dollar commercial paper in The City of New York selected by the Calculation
Agent for commercial paper having the Index Maturity placed for industrial
issuers whose bond rating is "Aa", or the equivalent, from a nationally
recognized statistical rating organization;
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PROVIDED, HOWEVER, that if the dealers so selected by the Calculation Agent
are not quoting as mentioned in this sentence, the Commercial Paper Rate
determined as of such Commercial Paper Rate Interest Determination Date will
be the Commercial Paper Rate in effect on such Commercial Paper Rate Interest
Determination Date.
"Money Market Yield" means 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 applicable Interest Reset Period.
ELEVENTH DISTRICT COST OF FUNDS RATE. If an Interest Rate Basis for
this Note is specified on the face hereof as the Eleventh District Cost of Funds
Rate, the Eleventh District Cost of Funds Rate shall be determined as of the
applicable Interest Determination Date (an "Eleventh District Cost of Funds Rate
Interest Determination Date") as the rate equal to the monthly weighted average
cost of funds for the calendar month immediately preceding the month in which
such Eleventh District Cost of Funds Rate Interest Determination Date falls, as
set forth under the caption "11th District" on the display on Bridge Telerate,
Inc. (or any successor service) on page 7058 ("Telerate Page 7058") as of 11:00
A.M., San Francisco time, on such Eleventh District Cost of Funds Rate Interest
Determination Date. If such rate does not appear on Telerate Page 7058 on such
Eleventh District Cost of Funds Rate Interest Determination Date, then the
Eleventh District Cost of Funds Rate on such Eleventh District Cost of Funds
Rate Interest Determination Date shall be the monthly weighted average cost of
funds paid by member institutions of the Eleventh Federal Home Loan Bank
District that was most recently announced (the "Index") by the FHLB of San
Francisco as such cost of funds for the calendar month immediately preceding
such Eleventh District Cost of Funds Rate Interest Determination Date. If the
FHLB of San Francisco fails to announce the Index on or prior to such Eleventh
District Cost of Funds Rate Interest Determination Date for the calendar month
immediately preceding such Eleventh District Cost of Funds Rate Interest
Determination Date, the Eleventh District Cost of Funds Rate determined as of
such Eleventh District Cost of Funds Rate Interest Determination Date will be
the Eleventh District Cost of Funds Rate in effect on such Eleventh District
Cost of Funds Rate Interest Determination Date.
FEDERAL FUNDS RATE. If an Interest Rate Basis for this Note is
specified on the face hereof as the Federal Funds Rate, the Federal Funds Rate
shall be determined as of the applicable Interest Determination Date (a "Federal
Funds Rate Interest Determination Date") as the rate on such date for United
States dollar federal funds as published in H.15(519) under the heading "Federal
Funds (Effective)", as such rate is displayed on Bridge Telerate, Inc. (or any
successor service) on page 120 (or any other page as may replace such page on
such service) ("Telerate Page 120"), or, if such rate does not appear on
Telerate page 120 or is not so published by 3:00 P.M., New York City time, on
the Calculation Date, the rate on such Federal Funds Rate Interest Determination
Date for United States dollar federal funds 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 such rate does not
appear on Telerate Page 120 or is not
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yet 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 Federal Funds Rate on such Federal Funds Interest Determination Date shall
be calculated by the Calculation Agent and will be the arithmetic mean of the
rates for the last transaction in overnight United States dollar federal funds
arranged by three leading brokers of United States dollar federal funds
transactions in The City of New York selected by the Calculation Agent, prior to
9:00 A.M., New York City time, on such Federal Funds Rate Interest Determination
Date; PROVIDED, HOWEVER, that if the brokers so selected by the Calculation
Agent are not quoting as mentioned in this sentence, the Federal Funds Rate
determined as of such Federal Funds Rate Interest Determination Date will be the
Federal Funds Rate in effect on such Federal Funds Rate Interest Determination
Date.
LIBOR. If an Interest Rate Basis for this Note is specified on the face
hereof as LIBOR, LIBOR shall be determined by the Calculation Agent as of the
applicable Interest Determination Date (a "LIBOR Interest Determination Date")
in accordance with the following provisions:
(i) (a) if "LIBOR Telerate" is specified on the face hereof or if
neither "LIBOR Reuters" nor "LIBOR Telerate" is specified on the face hereof as
the method for calculating LIBOR, the rate for deposits in the Designated LIBOR
Currency having the Index Maturity specified in such Pricing Supplement,
commencing on such Interest Reset Date, that appears on the Designated LIBOR
Page (as defined below) as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date; or (b) if "LIBOR Reuters" is specified on the face hereof,
the arithmetic mean of the offered rates (unless the Designated LIBOR Page (as
defined below) by its terms provides only for a single rate, in which case such
single rate will be used) for deposits in the Designated LIBOR Currency having
the Index Maturity, commencing on the applicable Interest Reset Date, that
appear (or, if only a single rate is required as aforesaid, appears) on the
Designated LIBOR Page as of 11:00 A.M., London time, on such LIBOR Interest
Determination Date. If fewer than two such offered rates so appear, or if no
such rate so appears, as applicable, LIBOR on such LIBOR Interest Determination
Date shall be determined in accordance with the provisions described in clause
(ii) below.
(ii) With respect to a LIBOR Interest Determination Date on which fewer
than two offered rates appear, or no rate appears, as the case may be, on the
Designated LIBOR Page as specified in clause (i) above, the Calculation Agent
shall request the principal London offices of each of four major reference banks
in the London interbank market, as selected by the Calculation Agent, to provide
the Calculation Agent with its offered quotation for deposits in the Designated
LIBOR Currency for the period of the Index Maturity, commencing on the
applicable Interest Reset Date, to prime banks in the London interbank market at
approximately 11:00 A.M., London time, on such LIBOR Interest Determination Date
and in a principal amount that is representative for a single transaction in the
Designated LIBOR Currency in such market at such time. If at least two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of such quotations. If fewer than two such
quotations are so provided, then LIBOR on such LIBOR Interest Determination Date
will be the arithmetic mean of the rates quoted at approximately 11:00 A.M., in
the applicable Principal Financial Center, on such LIBOR Interest Determination
Date by three major banks in such Principal Financial Center selected by the
Calculation Agent for loans in the Designated LIBOR Currency to leading European
banks, having the Index Maturity and in a principal amount that is
representative for a single transaction in the Designated LIBOR Currency in such
market at such
16
<PAGE>
time; PROVIDED, HOWEVER, that if the banks so selected by the Calculation Agent
are not quoting as mentioned in this sentence, LIBOR determined as of such LIBOR
Interest Determination Date shall be LIBOR in effect on such LIBOR Interest
Determination Date.
"Designated LIBOR Currency" means the 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 (a) 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 Designated LIBOR Currency, or (b)
if "LIBOR Telerate" is specified on the face hereof or neither "LIBOR Reuters"
nor "LIBOR Telerate" is specified on the face hereof as the method for
calculating LIBOR, the display on Bridge Telerate, Inc. (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 Designated LIBOR Currency.
PRIME RATE. If an Interest Rate Basis for this Note is specified on the
face hereto as the Prime Rate, the Prime Rate shall be determined as of the
applicable Interest Determination Date (a "Prime Rate Interest Determination
Date") as the rate on such date as such rate is published in H.15(519) under the
caption "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 Prime Rate 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 such rate is not yet 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, the Prime Rate shall be the arithmetic
mean of the rates of interest publicly announced by each bank that appears on
the Reuters Screen US PRIME 1 Page (as defined below) as such bank's prime rate
or base lending rate as of 11:00 A.M., New York City time, on such Prime Rate
Interest Determination. If fewer than four such rates so appear on the Reuters
Screen US PRIME 1 Page for such Prime Rate Interest Determination Date, then the
Prime Rate shall be the arithmetic mean of the prime rates or base lending
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 such Prime Rate Interest
Determination Date by three major banks in The City of New York selected by the
Calculation Agent; PROVIDED, HOWEVER, that if the banks or trust companies so
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Prime Rate determined as of such Prime Rate Interest Determination Date will
be the Prime Rate in effect on such Prime Rate Interest Determination Date.
"Reuters Screen US PRIME 1 Page" means the display on the Reuter
Monitor Money Rates Service (or any successor service) on the "US PRIME 1" Page
(or such other page as may replace the US PRIME 1 Page on such service) for the
purpose of displaying prime rates or base lending rates of major United States
banks.
TREASURY RATE. If an Interest Rate Basis for this Note is specified on
the face hereof as the Treasury Rate, the Treasury Rate shall be determined as
of the applicable Interest Determination Date (a "Treasury Rate Interest
Determination Date") as the rate from the auction held on such Treasury Rate
Interest Determination Date (the "Auction") of direct obligations of
17
<PAGE>
the United States ("Treasury Bills") having the Index Maturity under the caption
"AVGE INVEST YIELD" on the display on Bridge Telerate, Inc. (or any successor
service) 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") or, if not so published by 3:00 P.M., New
York City time, on the related Calculation Date, the auction average rate of
such Treasury Bills (expressed as a bond equivalent on the basis of a year of
365 or 366 days, as applicable, and applied on a daily basis) as otherwise
announced by the United States Department of the Treasury. In the event that the
results of the Auction of Treasury Bills having the Index Maturity are not so
published by 3:00 P.M., New York City time, on such Calculation Date, or if no
such Auction is held, then the Treasury Rate will be the rate (expressed as a
bond equivalent on the basis of a year of 365 or 366 days, as applicable, and
applied on a daily basis) on such Treasury Rate Interest Determination Date of
Treasury Bills having the Index Maturity 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 Treasury Rate 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 yet
published in H.15(519), H.15 Daily Update or another recognized electronic
source, then the Treasury Rate shall be calculated by the Calculation Agent and
shall be a yield to maturity (expressed as a bond equivalent on the basis of a
year of 365 or 366 days, as applicable, and applied on a daily basis) of the
arithmetic mean of the secondary market bid rates, as of approximately 3:30
P.M., New York City time, on such Treasury Rate Interest Determination Date, of
three leading primary United States government securities dealers selected by
the Calculation Agent, for the issue of Treasury Bills with a remaining maturity
closest to the Index Maturity; PROVIDED, HOWEVER, that if the dealers so
selected by the Calculation Agent are not quoting as mentioned in this sentence,
the Treasury Rate determined as of such Treasury Rate Interest Determination
Date will be the Treasury Rate in effect on such Treasury Rate Interest
Determination Date.
Notwithstanding the foregoing, the interest rate hereon shall not be
greater than the Maximum Interest Rate, if any, or less than the Minimum
Interest Rate, if any, in each case as specified on the face hereof. The
interest rate on this Note 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 Calculation Agent shall calculate the interest rate hereon on or
before each Calculation Date. The "Calculation Date", if applicable, pertaining
to any Interest Determination Date shall be the earlier of (i) the tenth
calendar day after such Interest Determination Date or, if such day is not a
Business Day, the next succeeding Business Day or (ii) the Business Day
immediately preceding the applicable Interest Payment Date or the Maturity Date,
as the case may be. At the request of the holder hereof, the Calculation Agent
will provide to the holder hereof the interest rate hereon then in effect and,
if determined, the interest rate that will become effective as a result of a
determination made for the next succeeding Interest Reset Date.
Accrued interest hereon shall be an amount calculated by multiplying
the principal amount hereof by an accrued interest factor. Such accrued interest
factor shall be computed by adding the interest factor calculated for each day
in the applicable Interest Period. Unless
18
<PAGE>
otherwise specified as the Day Count Convention on the face hereof, the interest
factor for each such date shall be computed by dividing the interest rate
applicable to such day by 360 if the CD Rate, the Commercial Paper Rate, the
Eleventh District Cost of Funds Rate, the Federal Funds Rate, LIBOR or the Prime
Rate is an applicable Interest Rate Basis or by the actual number of days in the
year if the CMT Rate or the Treasury Rate is an applicable Interest Rate Basis.
Unless otherwise specified as the Day Count Convention on the face hereof, the
interest factor for this Note, if the interest rate is calculated with reference
to two or more Interest Rate Bases, shall be calculated in each period in the
same manner as if only the Applicable Interest Rate Basis specified on the face
hereof applied.
All percentages resulting from any calculation on this Note shall be
rounded to the nearest one hundred-thousandth of a percentage point, with five
one-millionths of a percentage point rounded upwards, and all amounts used in or
resulting from such calculation on this Note shall be rounded, in the case of
United States dollars, to the nearest cent or, in the case of a Specified
Currency other than United States dollars, to the nearest unit (with one-half
cent or unit being rounded upwards).
Subordinated Indebtedness evidenced by this Note is subordinate and
junior in right of payment to the prior payment in full of all Senior
Indebtedness (defined below) of the Company and each holder of this Note by
accepting the same agrees to and shall be bound by the provisions hereof, and
authorizes the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the same and appoints the Trustee as his
attorney-in-fact for such purpose.
For all purposes herein, the term "Senior Indebtedness" shall mean all
of the indebtedness of, or guaranteed by, the Company for borrowed money
(including the principal of, premium, if any, or interest on any such borrowed
money and any commitment fees for unborrowed amounts which, if borrowed, would
constitute Senior Indebtedness), whether currently outstanding or hereafter
incurred, unless, under the instrument evidencing the same or under which the
same is outstanding, it is expressly provided that such indebtedness is
subordinate to other indebtedness and obligations of the Company.
In the event that the Company shall default in the payment of any
Senior Indebtedness, when the same becomes due and payable, whether at maturity
or on a date fixed for prepayment or by declaration or otherwise, then, unless
and until such default shall have been cured or waived or shall have ceased to
exist, no direct or indirect payment (in cash, property, or securities or by
set-off or otherwise) shall be made or agreed to be made on account of the
principal of, premium, if any, or interest or any Additional Amounts on this
Note, or in respect of any sinking fund for, or redemption, retirement or
purchase or other acquisition of this Note.
Upon the happening of an event of default with respect to any Senior
Indebtedness permitting the holders thereof to accelerate the maturity thereof
(other than under the circumstances when the terms of the immediately preceding
paragraph are applicable), then, unless and until such event of default shall
have been cured or waived or shall have ceased to exist, no direct or indirect
payment (in cash, property, or securities or by set-off or otherwise) shall be
made or agreed to be made on account of the principal of, or premium, if any, or
interest or any Additional Amounts on this Note or in respect of any sinking
fund for, or redemption, retirement or purchase or other acquisition of this
Note during any period (i) of 90 days after
19
<PAGE>
written notice of such default shall have been given to the Company by any
holder of Senior Indebtedness or (ii) in which any judicial proceeding shall be
pending in respect of such default and a notice of acceleration of the maturity
of such Senior Indebtedness shall have been transmitted to the Company in
respect of such default.
In the event of (i) any insolvency, bankruptcy, receivership,
liquidation, reorganization, readjustment, composition or other similar
proceeding relating to the Company, its creditors or its property; (ii) any
proceeding for the liquidation, dissolution or other winding-up of the Company,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings; (iii) any assignment by the Company for the benefit of creditors;
or (iv) any other marshalling of the assets of the Company, all Senior
Indebtedness (including any interest accruing after commencement of any such
proceedings) shall first be paid in full before any payment or distribution,
whether in cash, securities or other property, shall be made to any Holder of
this Note on account of this Note. Any payment or distribution, whether in cash,
securities or other property (other than securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinate, at least to the extent provided herein with respect to
this Note, to the payment of all Senior Indebtedness at the time Outstanding and
to any securities issued in respect thereof under any such plan of
reorganization or readjustment), which would otherwise but for the foregoing be
payable or deliverable in respect of this Note shall be paid or delivered
directly to the holders of Senior Indebtedness in accordance with the priorities
then existing among such holders until all Senior Indebtedness (including any
interest thereon accruing after the commencement of any such proceedings) shall
have been paid in full.
In the event that this Note shall be declared due and payable as a
result of the occurrence of any one or more defaults in respect thereof (under
circumstances when the terms of the immediately preceding paragraph are not
applicable), no payment shall be made in respect of this Note unless and until
all Senior Indebtedness shall have been paid in full or such declaration and its
consequences shall have been rescinded and all such defaults shall have been
remedied or waived.
If any payment or distribution to be paid to the holders of Senior
Indebtedness shall be received by any holder of this Note in contravention of
the foregoing and before all the Senior Indebtedness shall have been paid in
full, such payment or distribution of any character or any security whether in
cash, securities or other property (other than securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinate, at least to the extent provided in the
provisions of the Subordinated Indenture with respect to the Subordinated
Securities, to the payment of all Senior Indebtedness at the time outstanding
and to any securities issued in respect thereof under any such plan or
reorganization or readjustment), shall be received in trust for the benefit of,
and shall be paid over or delivered and transferred to, the holders of Senior
Indebtedness at the time Outstanding in accordance with the priorities then
existing among such holders for application to the payment of all Senior
Indebtedness remaining unpaid, to the extent necessary to pay all such Senior
Indebtedness in full. In the event of the failure of the holder of this Note to
endorse or assign any such payment, distribution or security, each holder of
Senior Indebtedness is hereby irrevocably authorized to endorse or assign the
same. Nothing contained herein shall impair, as between the Company and the
holder of this Note, the obligation of the Company to pay to the
20
<PAGE>
holder thereof the principal thereof and interest thereon as and when the same
shall become due and payable in accordance with the terms of this Note, or
prevent the Holder of this Note from exercising all rights, powers and remedies
otherwise permitted by applicable law or pursuant to the terms of this Note or
the Subordinated Indenture upon a default or Event of Default under the
Subordinated Indenture, all subject to the rights of the holders of Senior
Indebtedness to receive cash, securities or other property otherwise payable or
deliverable to the Holder of this Note. Senior Indebtedness shall not be deemed
to have been paid in full unless the holders thereof shall have received cash
equal to the amount of such Senior Indebtedness then Outstanding. Upon the
payment in full of all Senior Indebtedness, the holder of this Note shall be
subrogated to all rights of any holders of Senior Indebtedness to receive any
further payments or distributions applicable to the Senior Indebtedness until
all amounts owing on this Note shall have been paid in full, and such payments
or distributions received by the holder of this Note by reason of such
subrogation, of cash, securities or other property which otherwise would be paid
or distributed to the holders of Senior Indebtedness, shall, as between the
Company and its creditors other than the holders of Senior Indebtedness, on the
one hand, and the Holder of this Note, on the other hand, be deemed to be a
payment by the Company on account of Senior Indebtedness and not on account of
this Note.
If an Event of Default shall occur and be continuing, the principal of
all the Notes may be declared due and payable in the manner and with all the
effect provided in the Subordinated Indenture.
If an Event of Default, as defined in the Subordinated Indenture, shall
occur and be continuing, the principal of the Notes may be declared due and
payable in the manner and with the effect provided in the Subordinated
Indenture.
The Subordinated Indenture contains provisions for defeasance of the
entire indebtedness of the Notes upon compliance with certain conditions set
forth therein, which provisions apply to the Notes.
The Subordinated 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 Debt Securities
at any time by the Company and the Trustee with the consent of the holders of
not less than 66-K% in principal amount of the Outstanding Debt Securities of
each series affected thereby. The Subordinated Indenture also contains
provisions permitting the holders of at least 66-K% in principal amount of the
Outstanding Debt Securities of any series, on behalf of the holders of all such
Debt Securities of such series, to waive compliance by the Company with certain
provisions of the Subordinated Indenture. Furthermore, provisions in the
Subordinated Indenture permit the holders of not less than a majority in
principal amount of the Outstanding Debt Securities of any series, in certain
instances, to waive, on behalf of all of the holders of Debt Securities of such
series, certain past defaults under the Subordinated Indenture and their
consequences. Any such consent or waiver by the holder of this Note shall be
conclusive and binding upon such holder and upon all future holders of this Note
and other Notes issued upon the registration of transfer hereof or in exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Note.
21
<PAGE>
No reference herein to the Subordinated Indenture and no provision of
this Note or of the Subordinated Indenture shall alter or impair the obligation
of the Company, which is absolute and unconditional, to pay principal, premium,
if any, and interest in respect of this Note at the times, places and rate or
formula, and in the coin or currency, herein prescribed.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, the transfer of this Note is
registrable in the Security Register of the Company upon surrender of this Note
for registration of transfer at the office or agency of the Company in any place
where the principal hereof and any premium or interest hereon are payable, duly
endorsed by, or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed by, the
holder hereof or by his attorney duly authorized in writing, and thereupon one
or more new Notes, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
As provided in the Subordinated Indenture and subject to certain
limitations therein and herein set forth, this Note is exchangeable for a like
aggregate principal amount of Notes of different authorized denominations but
otherwise having the same terms and conditions, as requested by the holder
hereof surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Note for registration of transfer, the
Company, the Trustee and any agent of the Company or the Trustee may treat the
holder in whose name this Note is registered as the owner thereof for all
purposes, whether or not this Note be overdue, and neither the Company, the
Trustee nor any such agent shall be affected by notice to the contrary.
THE SUBORDINATED INDENTURE AND THIS NOTE 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 ENTIRELY IN SUCH STATE.
22
<PAGE>
-------------
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face
of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common UNIF GIFT MIN ACT - ______ Custodian _____
TEN ENT - as tenants by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of
survivorship and not as tenants under Uniform Gifts to Minors
in common 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 typewrite name and address including postal zip code of assignee)
______________________________________________________________________________
this Note and all rights thereunder hereby irrevocably constituting and
appointing
____________________________________________________________________ Attorney
to transfer this Note on the books of the Trustee, with full power of
substitution in the premises.
Dated:_____________________ _______________________________________
---------------------------------------
Notice: The signature(s) on this assignment must
correspond with the name(s) as written upon the face
of this Note in every particular, without alteration
or enlargement or any change whatsoever.
23
<PAGE>
OPTION TO ELECT REPAYMENT
The undersigned hereby irrevocably request(s) and instruct(s) the
Company to repay this Note (or portion hereof specified below) pursuant to its
terms at a price equal to 100% of the principal amount to be repaid, together
with unpaid interest accrued hereon to the Repayment Date, to the undersigned,
at ___________________
- -----------------------------------
(Please print or typewrite name and address of the undersigned)
For this Note to be repaid, the Trustee must receive at its corporate
trust office, currently located at __________________________________________,
not more than 60 nor less than 30 calendar days prior to the Repayment Date,
this Note with this "Option to Elect Repayment" form duly completed.
If less than the entire principal amount of this Note is to be repaid,
specify the portion hereof (which shall be increments of U.S.$1,000 (or, if the
Specified Currency is other than United States dollars, the minimum Authorized
Denomination specified on the face hereof)) which the holder elects to have
repaid and specify the denomination or denominations (each of which shall be an
Authorized Denomination) of the Notes to be issued to the holder for the portion
of this Note not being repaid (in the absence of any such specification, one
such Note will be issued for the portion not being repaid).
Principal Amount
to be Repaid:
Notice: The signature(s) on
Date: this Option to Elect Repayment
---------- must correspond with the name(s)
as written upon the face of this Note in
every particular, without alteration
or enlargement or any change whatsoever.
24
<PAGE>
EXHIBIT 5
JULY 7, 1999
Boeing Capital Corp.
4060 Lakewood Blvd., 6th Floor
Long Beach, CA 90808-1700
Re: Boeing Capital Corporation
Registration Statement on Form S-3
Ladies and Gentlemen:
We refer to the Registration Statement on Form S-3 (the "Registration
Statement"), in the form being filed with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended, relating to the shelf
registration of $2,500,000,000 principal amount of debt securities (the "Notes")
of Boeing Capital Corporation (the "Company"). The Notes are to be issued under
either (i) an indenture between the Company and Bankers Trust Company ("Bankers
Trust"), as trustee, with respect to senior notes in the form filed as Exhibit
4(a) to the Registration Statement, or (ii) an indenture between the Company and
Bankers Trust, as trustee, with respect to subordinated notes in the form filed
as Exhibit 4(b) to the Registration Statement (collectively, the "Indentures").
The Notes are to be issued substantially in the forms filed as exhibits to the
Registration Statement (with maturities, interest rates and other terms of the
Notes appropriately filled in). The Notes are to be sold from time to time as
set forth in the Registration Statement, any amendment thereto, the prospectus
contained therein (the "Prospectus") and any supplements to the Prospectus (the
"Prospectus Supplements").
We are familiar with the proceedings to date with respect to the proposed
issuance and sale of the Notes and have examined such records, documents and
instruments as we have considered relevant and necessary as a basis for this
opinion. Based on such examination, we are of the opinion that when the issuance
of the Notes has bee duly authorized by appropriate corporate action and the
Notes have been duly completed, executed, authenticated and delivered in
accordance with the Indentures and sold as described in the Registration
Statement, any amendment thereto, the Prospectus and, any Prospectus Supplement,
relating thereto, the Notes will be legal, valid and binding obligations of the
Company, entitled to the benefits of the Indentures.
Our opinion that the Notes are legal, valid, and binding is qualified as to
limitations imposed by bankruptcy, insolvency, reorganization, arrangement,
fraudulent conveyance, moratorium, or other laws relating to or affecting the
enforcement of creditors' rights generally; and general principles of equity,
including without limitation, concepts of materiality, reasonableness, good
faith and fair dealing, and the possible unavailability of specific performance
or injunctive relief, regardless of whether such enforceability is considered in
a proceeding in equity or at law. In addition, we express no opinion with
respect to Section 515 of each Indenture.
We express no opinion as to matters of law in jurisdictions other than the
State of New York, the federal law of the United States and the General
Corporation Law of the State of Delaware.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement and to all references to our firm included in or made a
part of the Registration Statement.
Very Truly Yours,
/S/ SIDLEY & AUSTIN
<PAGE>
EXHIBIT 12
Statement Setting Forth Computation of Ratio of Earnings to Fixed Charges for
the periods set forth below:
<TABLE>
<CAPTION>
Years ending December 31, Three Months Ended March 31,
-------------------------------------------------- ----------------------------
(Dollars in millions) 1998 1997 1996 1995 1994 1999 1998
- --------------------- ------ ------ ------ ------ ------ ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Income:
Income before provision for
income taxes $104.6 $ 87.8 $ 74.9 $ 60.3 $ 41.1 $ 28.8 $ 20.7
Fixed charges 130.6 128.2 120.8 105.4 111.8 33.9 33.7
Income before provision for
income taxes and fixed charges $235.2 $216.0 $195.7 $165.7 $152.9 $ 62.7 $ 54.4
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Fixed charges:
Interest expense $126.7 $124.7 $117.3 $101.9 $108.3 $ 33.0 $ 32.5
Preferred stock cash dividends 3.9 3.5 3.5 3.5 3.5 0.9 1.2
---------------------------------------------------------------------------
---------------------------------------------------------------------------
$130.6 $128.2 $120.8 $105.4 $111.8 $ 33.9 $ 33.7
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Ratio of income before provisions
for income taxes and fixed
charges to fixed charges 1.80 1.68 1.62 1.57 1.37 1.85 1.61
---------------------------------------------------------------------------
---------------------------------------------------------------------------
</TABLE>
We have computed these ratios by dividing earnings available for fixed
charges for each period by fixed charges for that period. For purposes of
these computations, we calculated "earnings" by adding our pre-tax income and
our fixed charges. We calculated "fixed charges" by adding the interest we
pay on our indebtedness, the amount we amortize for debt financing costs and
our estimate of the amount of the interest within our rental expense.
<PAGE>
EXHIBIT 23(a)
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement
of Boeing Capital Corporation on Form S-3 of our report dated January 26, 1999,
appearing in the Annual Report on Form 10-K of Boeing Capital Corporation for
the years ended December 31, 1998 and 1997 and to the reference to us under the
heading "Experts" in the Prospectus, which is part of this Registration
Statement.
DELOITTE & TOUCHE LLP
Seattle, Washington
July 7, 1999
<PAGE>
EXHIBIT 23(B)
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
on Form S-3 (333-00000) and related Prospectus of Boeing Capital Corporation of
our report dated January 22, 1997, with respect to the consolidated balance
sheet of McDonnell Douglas Finance Corporation as of December 31, 1996, and the
related consolidated statements of income and income retained for growth, cash
flows and financial statement schedule for the year then ended, included in the
Boeing Capital Corporation Form 10-K for the year ended December 31, 1998, filed
with the Securities and Exchange Commission.
ERNST & YOUNG LLP
Los Angeles, California
July 7, 1999
<PAGE>
UNITED STATES
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) ___________
--------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
BOEING CAPITAL CORPORATION
(Exact name of Registrant as specified in its Charter)
DELAWARE 95-2564584
(State or other jurisdiction of (I.R.S. employer identification no.)
Incorporation or organization)
4060 LAKEWOOD BOULVARD, SIXTH FLOOR
LONG BEACH, CALIFORNIA 90808-1700
(562) 627-3000
(Address, including zip code, and telephone number of Registrants principal
executive offices)
DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
NAME ADDRESS
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3. -15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated June 21, 1995 - Incorporated
herein by reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-65171, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by
referenced to Exhibit 1 filed with Form T-1
Statement, Registration No. 333-25843 and Certificate
of Amendment of the Organization Certificate of
Bankers Trust Company dated June 19, 1997, copy
attached.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate
trust powers Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as amended
on November 18, 1997. Copy attached.
-2-
<PAGE>
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. Incorporated herein by reference
to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
EXHIBIT 7 - The latest report of condition of Bankers Trust
Company dated as of December 31, 1998. Copy attached.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, 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 this 25th day
of June, 1999
BANKERS TRUST COMPANY
By: /s/ Marc J. Parilla
-------------------------------
Marc J. Parilla
Assistant Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, 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 this 25th day
of June, 1999.
BANKERS TRUST COMPANY
/s/ Marc J. Parilla /s/
-----------------------------
By: Marc J. Parilla
Assistant Vice President
-5-
<PAGE>
STATE OF NEW YORK,
BANKING DEPARTMENT
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION
8005 OF THE BANKING LAW," dated June 19, 1997, providing for an increase in
authorized capital stock from $1,601,666,670 consisting of 100,166,667 shares
with a par value of $10 each designated as Common Stock and 600 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$2,001,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 1,000 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
WITNESS, MY HAND AND OFFICIAL SEAL OF THE BANKING DEPARTMENT AT THE CITY OF NEW
YORK,
THIS 27TH DAY OF JUNE IN THE YEAR OF OUR LORD ONE THOUSAND
NINE HUNDRED AND NINETY-SEVEN.
MANUEL KURSKY
------------------------------
DEPUTY SUPERINTENDENT OF BANKS
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into
One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 600 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
19th day of June, 1997.
James T. Byrne, Jr.
-----------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
-----------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
Lea Lahtinen
-------------------
Lea Lahtinen
Sworn to before me this 19th day of June, 1997.
Sandra L. West
- ---------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
BANKERS TRUST COMPANY
NEW YORK
<PAGE>
BY-LAWS
OF
BANKERS TRUST COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
<PAGE>
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit
<PAGE>
program and the adequacy of the system of internal controls of the Company that
should be brought to the attention of the directors except those matters
responsibility for which has been vested in the General Credit Auditor. Should
the General Auditor deem any matter to be of special immediate importance, he
shall report thereon forthwith to the Audit Committee. The General Auditor shall
report to the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
<PAGE>
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc J. Parilla, Assistant Vice President of Bankers Trust Company, New York,
New York, hereby certify that the foregoing is a complete, true and correct copy
of the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
/s/ Marc J. Parilla
----------------------
Marc J. Parilla
Assistant Vice President
DATED: June 25, 1999
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
---------------
| C400 |
- ------------------------------------------------------------------------------------------------------------------------------
DOLLAR AMOUNTS IN THOUSANDS | RCFD BIL MIL THOU |
<S> <C>
- ------------------------------------------------------------------------------------------------------------------------------
ASSETS | / / / / / / / / / / / / / / / / / / |
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin (1) ............ | 0081 2,772,000 |1.a.
b. Interest-bearing balances (2) ..................................... | 0071 2,497,000 |1.b.
2. Securities: | / / / / / / / / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ........ | 1754 0 |2.a.
b. Available-for-sale securities (from Schedule RC-B, column D)....... | 1773 8,907,000 |2.b.
3. Federal funds sold and securities purchased under agreements to resell.. | 1350 22,851,000 |3.
4. Loans and lease financing receivables: | / / / / / / / / / / / / / / / / / / |
a. Loans and leases, net of unearned income | |
(from Schedule RC-C) RCFD 2122 21,882,000 | / / / / / / / / / / / / / / / / / / |4.a.
b. LESS: Allowance for loan and lease losses. RCFD 3123 620,000 | / / / / / / / / / / / / / / / / / / |4.b.
c. LESS: Allocated transfer risk reserve .... RCFD 3128 0 | / / / / / / / / / / / / / / / / / / |4.c.
d. Loans and leases, net of unearned income, | / / / / / / / / / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) ............... | 2125 21,262,000 |4.4.
5. Trading Assets (from schedule RC-D) ................................... | 3545 39,983,000 |5.
6. Premises and fixed assets (including capitalized leases) ............... | 2145 974,000 |6.
7. Other real estate owned (from Schedule RC-M) ........................... | 2150 80,000 |7.
8. Investments in unconsolidated subsidiaries and associated companies | |
(from Schedule RC-M) | 2130 97,000 |8.
9. Customers' liability to this bank on acceptances outstanding ........... | 2155 232,000 |9.
10. Intangible assets (from Schedule RC-M) ................................. | 2143 278,000 |10.
11. Other assets (from Schedule RC-F) ...................................... | 2160 4,625,000 |11.
12. Total assets (sum of items 1 through 11) ............................... | 2170 104,558,000 |12.
------------------------------------------
</TABLE>
- --------------------------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE RC--CONTINUED
DOLLAR AMOUNTS IN THOUSANDS / / / / / / / / BIL MIL THOU __
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES | / / / / / / / / / / / / / / / / / / / / / / / |
13. Deposits: |
/ / / / / / / / / / / / / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 20,409,000|
(1) Noninterest-bearing(1) .............................RCON 6631 3,124,000.....| / / / / / / / / / / / / / /|
(2) Interest-bearing ...................................RCON 6636 17,285,000.....| / / / / / / / / / / / / / /|
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | / / / / / / / / / / / / / /|
part II) | RCFN 2200 20,167,000|
(1) Noninterest-bearing ................................RCFN 6631 1,781,000 | / / / / / / / / / / / / / /|
(2) Interest-bearing ...................................RCFN 6636 18,386,000 | / / / / / / / / / / / / / /|
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 13,919,000|
15. a. Demand notes issued to the U.S. Treasury ........................................ | RCON 2840 0|
b. Trading liabilities (from Schedule RC-D)......................................... | RCFD 3548 26,175,000|
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized
leases): | / / / / / / / / / / / / / /|
a. With a remaining maturity of one year or less ................................... | RCFD 2332 5,422,000|
b. With a remaining maturity of more than one year through three years............. | A547 1,766,000|
c. With a remaining maturity of more than three years............................... | A548 2,884,000|
17. Not Applicable. | / / / / / / / / / / / / / / |
18. Bank's liability on acceptances executed and outstanding ........................... | RCFD 2920 232,000|
19. Subordinated notes and debentures (2)............................................... | RCFD 3200 984,000|
20. Other liabilities (from Schedule RC-G) ............................................. | RCFD 2930 5,657,000|
21. Total liabilities (sum of items 13 through 20) ..................................... | RCFD 2948 97,615,000|
22. Not Applicable | / / / / / / / / / / / / / /|
| / / / / / / / / / / / / / /|
EQUITY CAPITAL | / / / / / / / / / / / / / /|
23. Perpetual preferred stock and related surplus ...................................... | RCFD 3838 1,500,000|
24. Common stock ....................................................................... | RCFD 3230 2,127,000|
25. Surplus (exclude all surplus related to preferred stock) ........................... | RCFD 3839 541,000|
26. a. Undivided profits and capital reserves ........................................ | RCFD 3632 3,200,000|
b. Net unrealized holding gains (losses) on available-for-sale securities ........ | RCFD 8434 ( 36,000)
27. Cumulative foreign currency translation adjustments ................................ | RCFD 3284 ( 389,000)
28. Total equity capital (sum of items 23 through 27) .................................. | RCFD 3210 6,943,000|
29. Total liabilities and equity capital (sum of items 21 and 28)....................... | RCFD 3300 104,558,000|
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best describes the NUMBER
most comprehensive level of auditing work performed for the bank by independent external ----------------
auditors as of any date during 1998 ............................................ | RCFD 6724 N/A | M.1
------------------------
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by
with generally accepted auditing standards by a certified other external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
3 = Directors' examination of the bank conducted in work)
accordance with generally accepted auditing standards by a 8 = No external audit work
certified public accounting firm (may be required by state
chartering authority)
</TABLE>
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
<PAGE>
UNITED STATES
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) ___________
--------------------
BANKERS TRUST COMPANY
(Exact name of trustee as specified in its charter)
NEW YORK 13-4941247
(Jurisdiction of Incorporation or (I.R.S. Employer
organization if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
BANKERS TRUST COMPANY
LEGAL DEPARTMENT
130 LIBERTY STREET, 31ST FLOOR
NEW YORK, NEW YORK 10006
(212) 250-2201
(Name, address and telephone number of agent for service)
---------------------------------
BOEING CAPITAL CORPORATION
(Exact name of Registrant as specified in its Charter)
DELAWARE 95-2564584
(State or other jurisdiction of (I.R.S. employer identification no.)
Incorporation or organization)
4060 LAKEWOOD BOULVARD, SIXTH FLOOR
LONG BEACH, CALIFORNIA 90808-1700
(562) 627-3000
(Address, including zip code, and telephone number of Registrants principal
executive offices)
DEBT SECURITIES
(Title of the indenture securities)
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee.
(a) Name and address of each examining or supervising
authority to which it is subject.
NAME ADDRESS
---- -------
Federal Reserve Bank (2nd District) New York, NY
Federal Deposit Insurance Corporation Washington, D.C.
New York State Banking Department Albany, NY
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH OBLIGOR.
If the obligor is an affiliate of the Trustee, describe each
such affiliation.
None.
ITEM 3. -15. NOT APPLICABLE
ITEM 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated June 21, 1995 - Incorporated
herein by reference to Exhibit 1 filed with Form T-1
Statement, Registration No. 33-65171, Certificate of
Amendment of the Organization Certificate of Bankers
Trust Company dated March 20, 1996, incorporate by
referenced to Exhibit 1 filed with Form T-1
Statement, Registration No. 333-25843 and Certificate
of Amendment of the Organization Certificate of
Bankers Trust Company dated June 19, 1997, copy
attached.
EXHIBIT 2 - Certificate of Authority to commence business -
Incorporated herein by reference to Exhibit 2 filed
with Form T-1 Statement, Registration No. 33-21047.
EXHIBIT 3 - Authorization of the Trustee to exercise corporate
trust powers Incorporated herein by reference to
Exhibit 2 filed with Form T-1 Statement, Registration
No. 33-21047.
EXHIBIT 4 - Existing By-Laws of Bankers Trust Company, as amended
on November 18, 1997. Copy attached.
-2-
<PAGE>
EXHIBIT 5 - Not applicable.
EXHIBIT 6 - Consent of Bankers Trust Company required by Section
321(b) of the Act. Incorporated herein by reference
to Exhibit 4 filed with Form T-1 Statement,
Registration No. 22-18864.
EXHIBIT 7 - The latest report of condition of Bankers Trust
Company dated as of December 31, 1998. Copy attached.
EXHIBIT 8 - Not Applicable.
EXHIBIT 9 - Not Applicable.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, 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 this 25th day
of June, 1999
BANKERS TRUST COMPANY
By: /s/ Marc J. Parilla
-------------------------------
Marc J. Parilla
Assistant Vice President
-4-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, Bankers Trust Company, 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 this 25th day
of June, 1999.
BANKERS TRUST COMPANY
/s/ Marc J. Parilla /s/
-----------------------------
By: Marc J. Parilla
Assistant Vice President
-5-
<PAGE>
State of New York,
Banking Department
I, MANUEL KURSKY, Deputy Superintendent of Banks of the State of New
York, DO HEREBY APPROVE the annexed Certificate entitled "CERTIFICATE OF
AMENDMENT OF THE ORGANIZATION CERTIFICATE OF BANKERS TRUST COMPANY UNDER SECTION
8005 OF THE BANKING LAW," dated June 19, 1997, providing for an increase in
authorized capital stock from $1,601,666,670 consisting of 100,166,667 shares
with a par value of $10 each designated as Common Stock and 600 shares with a
par value of $1,000,000 each designated as Series Preferred Stock to
$2,001,666,670 consisting of 100,166,667 shares with a par value of $10 each
designated as Common Stock and 1,000 shares with a par value of $1,000,000 each
designated as Series Preferred Stock.
WITNESS, MY HAND AND OFFICIAL SEAL OF THE BANKING DEPARTMENT AT THE CITY OF NEW
YORK,
THIS 27TH DAY OF JUNE IN THE YEAR OF OUR LORD ONE THOUSAND
NINE HUNDRED AND NINETY-SEVEN.
MANUEL KURSKY
------------------------------
DEPUTY SUPERINTENDENT OF BANKS
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE
ORGANIZATION CERTIFICATE
OF BANKERS TRUST
Under Section 8005 of the Banking Law
-----------------------------
We, James T. Byrne, Jr. and Lea Lahtinen, being respectively a Managing
Director and an Assistant Secretary of Bankers Trust Company, do hereby certify:
1. The name of the corporation is Bankers Trust Company.
2. The organization certificate of said corporation was filed by the
Superintendent of Banks on the 5th of march, 1903.
3. The organization certificate as heretofore amended is hereby amended
to increase the aggregate number of shares which the corporation shall have
authority to issue and to increase the amount of its authorized capital stock in
conformity therewith.
4. Article III of the organization certificate with reference to the
authorized capital stock, the number of shares into which the capital stock
shall be divided, the par value of the shares and the capital stock outstanding,
which reads as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is One Billion, Six Hundred and One Million, Six Hundred Sixty-Six
Thousand, Six Hundred Seventy Dollars ($1,601,666,670), divided into
One Hundred Million, One Hundred Sixty-Six Thousand, Six Hundred
Sixty-Seven (100,166,667) shares with a par value of $10 each
designated as Common Stock and 600 shares with a par value of One
Million Dollars ($1,000,000) each designated as Series Preferred
Stock."
is hereby amended to read as follows:
"III. The amount of capital stock which the corporation is hereafter to
have is Two Billion One Million, Six Hundred Sixty-Six Thousand, Six
Hundred Seventy Dollars ($2,001,666,670), divided into One Hundred
Million, One Hundred Sixty-Six Thousand, Six Hundred Sixty-Seven
(100,166,667) shares with a par value of $10 each designated as Common
Stock and 1000 shares with a par value of One Million Dollars
($1,000,000) each designated as Series Preferred Stock."
<PAGE>
5. The foregoing amendment of the organization certificate was
authorized by unanimous written consent signed by the holder of all outstanding
shares entitled to vote thereon.
IN WITNESS WHEREOF, we have made and subscribed this certificate this
19th day of June, 1997.
James T. Byrne, Jr.
-----------------------------
James T. Byrne, Jr.
Managing Director
Lea Lahtinen
-----------------------------
Lea Lahtinen
Assistant Secretary
State of New York )
) ss:
County of New York )
Lea Lahtinen, being fully sworn, deposes and says that she is an
Assistant Secretary of Bankers Trust Company, the corporation described in the
foregoing certificate; that she has read the foregoing certificate and knows the
contents thereof, and that the statements herein contained are true.
Lea Lahtinen
-------------------
Lea Lahtinen
Sworn to before me this 19th day of June, 1997.
Sandra L. West
- ---------------------------
Notary Public
SANDRA L. WEST
Notary Public State of New York
No. 31-4942101
Qualified in New York County
Commission Expires September 19, 1998
<PAGE>
BY-LAWS
NOVEMBER 18, 1997
BANKERS TRUST COMPANY
NEW YORK
<PAGE>
BY-LAWS
OF
BANKERS TRUST COMPANY
ARTICLE I
MEETINGS OF STOCKHOLDERS
SECTION 1. The annual meeting of the stockholders of this Company shall be held
at the office of the Company in the Borough of Manhattan, City of New York, on
the third Tuesday in January of each year, for the election of directors and
such other business as may properly come before said meeting.
SECTION 2. Special meetings of stockholders other than those regulated by
statute may be called at any time by a majority of the directors. It shall be
the duty of the Chairman of the Board, the Chief Executive Officer or the
President to call such meetings whenever requested in writing to do so by
stockholders owning a majority of the capital stock.
SECTION 3. At all meetings of stockholders, there shall be present, either in
person or by proxy, stockholders owning a majority of the capital stock of the
Company, in order to constitute a quorum, except at special elections of
directors, as provided by law, but less than a quorum shall have power to
adjourn any meeting.
SECTION 4. The Chairman of the Board or, in his absence, the Chief Executive
Officer or, in his absence, the President or, in their absence, the senior
officer present, shall preside at meetings of the stockholders and shall direct
the proceedings and the order of business. The Secretary shall act as secretary
of such meetings and record the proceedings.
ARTICLE II
DIRECTORS
SECTION 1. The affairs of the Company shall be managed and its corporate powers
exercised by a Board of Directors consisting of such number of directors, but
not less than ten nor more than twenty-five, as may from time to time be fixed
by resolution adopted by a majority of the directors then in office, or by the
stockholders. In the event of any increase in the number of directors,
additional directors may be elected within the limitations so fixed, either by
the stockholders or within the limitations imposed by law, by a majority of
directors then in office. One-third of the number of directors, as fixed from
time to time, shall constitute a quorum. Any one or more members of the Board of
Directors or any Committee thereof may participate in a meeting of the Board of
Directors or Committee thereof by means of a conference telephone or similar
communications equipment which allows all persons participating in the meeting
to hear each other at the same time. Participation by such means shall
constitute presence in person at such a meeting.
<PAGE>
All directors hereafter elected shall hold office until the next annual meeting
of the stockholders and until their successors are elected and have qualified.
No person who shall have attained age 72 shall be eligible to be elected or
re-elected a director. Such director may, however, remain a director of the
Company until the next annual meeting of the stockholders of Bankers Trust New
York Corporation (the Company's parent) so that such director's retirement will
coincide with the retirement date from Bankers Trust New York Corporation.
No Officer-Director who shall have attained age 65, or earlier relinquishes his
responsibilities and title, shall be eligible to serve as a director.
SECTION 2. Vacancies not exceeding one-third of the whole number of the Board of
Directors may be filled by the affirmative vote of a majority of the directors
then in office, and the directors so elected shall hold office for the balance
of the unexpired term.
SECTION 3. The Chairman of the Board shall preside at meetings of the Board of
Directors. In his absence, the Chief Executive Officer or, in his absence, such
other director as the Board of Directors from time to time may designate shall
preside at such meetings.
SECTION 4. The Board of Directors may adopt such Rules and Regulations for the
conduct of its meetings and the management of the affairs of the Company as it
may deem proper, not inconsistent with the laws of the State of New York, or
these By-Laws, and all officers and employees shall strictly adhere to, and be
bound by, such Rules and Regulations.
SECTION 5. Regular meetings of the Board of Directors shall be held from time to
time on the third Tuesday of the month. If the day appointed for holding such
regular meetings shall be a legal holiday, the regular meeting to be held on
such day shall be held on the next business day thereafter. Special meetings of
the Board of Directors may be called upon at least two day's notice whenever it
may be deemed proper by the Chairman of the Board or, the Chief Executive
Officer or, in their absence, by such other director as the Board of Directors
may have designated pursuant to Section 3 of this Article, and shall be called
upon like notice whenever any three of the directors so request in writing.
SECTION 6. The compensation of directors as such or as members of committees
shall be fixed from time to time by resolution of the Board of Directors.
<PAGE>
ARTICLE III
COMMITTEES
SECTION 1. There shall be an Executive Committee of the Board consisting of not
less than five directors who shall be appointed annually by the Board of
Directors. The Chairman of the Board shall preside at meetings of the Executive
Committee. In his absence, the Chief Executive Officer or, in his absence, such
other member of the Committee as the Committee from time to time may designate
shall preside at such meetings.
The Executive Committee shall possess and exercise to the extent permitted by
law all of the powers of the Board of Directors, except when the latter is in
session, and shall keep minutes of its proceedings, which shall be presented to
the Board of Directors at its next subsequent meeting. All acts done and powers
and authority conferred by the Executive Committee from time to time shall be
and be deemed to be, and may be certified as being, the act and under the
authority of the Board of Directors.
A majority of the Committee shall constitute a quorum, but the Committee may act
only by the concurrent vote of not less than one-third of its members, at least
one of whom must be a director other than an officer. Any one or more directors,
even though not members of the Executive Committee, may attend any meeting of
the Committee, and the member or members of the Committee present, even though
less than a quorum, may designate any one or more of such directors as a
substitute or substitutes for any absent member or members of the Committee, and
each such substitute or substitutes shall be counted for quorum, voting, and all
other purposes as a member or members of the Committee.
SECTION 2. There shall be an Audit Committee appointed annually by resolution
adopted by a majority of the entire Board of Directors which shall consist of
such number of directors, who are not also officers of the Company, as may from
time to time be fixed by resolution adopted by the Board of Directors. The
Chairman shall be designated by the Board of Directors, who shall also from time
to time fix a quorum for meetings of the Committee. Such Committee shall conduct
the annual directors' examinations of the Company as required by the New York
State Banking Law; shall review the reports of all examinations made of the
Company by public authorities and report thereon to the Board of Directors; and
shall report to the Board of Directors such other matters as it deems advisable
with respect to the Company, its various departments and the conduct of its
operations.
In the performance of its duties, the Audit Committee may employ or retain, from
time to time, expert assistants, independent of the officers or personnel of the
Company, to make studies of the Company's assets and liabilities as the
Committee may request and to make an examination of the accounting and auditing
methods of the Company and its system of internal protective controls to the
extent considered necessary or advisable in order to determine that the
operations of the Company, including its fiduciary departments, are being
audited by the General Auditor in such a manner as to provide prudent and
adequate protection. The Committee also may direct the General Auditor to make
such investigation as it deems necessary or advisable with respect to the
Company, its various departments and the conduct of its operations. The
Committee shall hold regular quarterly meetings and during the intervals thereof
shall meet at other times on call of the Chairman.
<PAGE>
SECTION 3. The Board of Directors shall have the power to appoint any other
Committees as may seem necessary, and from time to time to suspend or continue
the powers and duties of such Committees. Each Committee appointed pursuant to
this Article shall serve at the pleasure of the Board of Directors.
ARTICLE IV
OFFICERS
SECTION 1. The Board of Directors shall elect from among their number a Chairman
of the Board and a Chief Executive Officer; and shall also elect a President,
and may also elect a Senior Vice Chairman, one or more Vice Chairmen, one or
more Executive Vice Presidents, one or more Senior Managing Directors, one or
more Managing Directors, one or more Senior Vice Presidents, one or more
Principals, one or more Vice Presidents, one or more General Managers, a
Secretary, a Controller, a Treasurer, a General Counsel, one or more Associate
General Counsels, a General Auditor, a General Credit Auditor, and one or more
Deputy Auditors, who need not be directors. The officers of the corporation may
also include such other officers or assistant officers as shall from time to
time be elected or appointed by the Board. The Chairman of the Board or the
Chief Executive Officer or, in their absence, the President, the Senior Vice
Chairman or any Vice Chairman, may from time to time appoint assistant officers.
All officers elected or appointed by the Board of Directors shall hold their
respective offices during the pleasure of the Board of Directors, and all
assistant officers shall hold office at the pleasure of the Board or the
Chairman of the Board or the Chief Executive Officer or, in their absence, the
President, the Senior Vice Chairman or any Vice Chairman. The Board of Directors
may require any and all officers and employees to give security for the faithful
performance of their duties.
SECTION 2. The Board of Directors shall designate the Chief Executive Officer of
the Company who may also hold the additional title of Chairman of the Board,
President, Senior Vice Chairman or Vice Chairman and such person shall have,
subject to the supervision and direction of the Board of Directors or the
Executive Committee, all of the powers vested in such Chief Executive Officer by
law or by these By-Laws, or which usually attach or pertain to such office. The
other officers shall have, subject to the supervision and direction of the Board
of Directors or the Executive Committee or the Chairman of the Board or, the
Chief Executive Officer, the powers vested by law or by these By-Laws in them as
holders of their respective offices and, in addition, shall perform such other
duties as shall be assigned to them by the Board of Directors or the Executive
Committee or the Chairman of the Board or the Chief Executive Officer.
The General Auditor shall be responsible, through the Audit Committee, to the
Board of Directors for the determination of the program of the internal audit
function and the evaluation of the adequacy of the system of internal controls.
Subject to the Board of Directors, the General Auditor shall have and may
exercise all the powers and shall perform all the duties usual to such office
and shall have such other powers as may be prescribed or assigned to him from
time to time by the Board of Directors or vested in him by law or by these
By-Laws. He shall perform such other duties and shall make such investigations,
examinations and reports as may be prescribed or required by the Audit
Committee. The General Auditor shall have unrestricted access to all records and
premises of the Company and shall delegate such authority to his subordinates.
He shall have the duty to report to the Audit Committee on all matters
concerning the internal audit program and the adequacy of the system of internal
controls of the Company which he deems advisable or which the Audit Committee
may request. Additionally, the General Auditor shall have the duty of reporting
independently of all officers of the Company to the Audit Committee at least
quarterly on any matters concerning the internal audit
<PAGE>
program and the adequacy of the system of internal controls of the Company that
should be brought to the attention of the directors except those matters
responsibility for which has been vested in the General Credit Auditor. Should
the General Auditor deem any matter to be of special immediate importance, he
shall report thereon forthwith to the Audit Committee. The General Auditor shall
report to the Chief Financial Officer only for administrative purposes.
The General Credit Auditor shall be responsible to the Chief Executive Officer
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chief Executive
Officer may prescribe, and shall make such examinations and reports as may be
required by the Audit Committee. The General Credit Auditor shall have
unrestricted access to all records and may delegate such authority to
subordinates.
SECTION 3. The compensation of all officers shall be fixed under such plan or
plans of position evaluation and salary administration as shall be approved from
time to time by resolution of the Board of Directors.
SECTION 4. The Board of Directors, the Executive Committee, the Chairman of the
Board, the Chief Executive Officer or any person authorized for this purpose by
the Chief Executive Officer, shall appoint or engage all other employees and
agents and fix their compensation. The employment of all such employees and
agents shall continue during the pleasure of the Board of Directors or the
Executive Committee or the Chairman of the Board or the Chief Executive Officer
or any such authorized person; and the Board of Directors, the Executive
Committee, the Chairman of the Board, the Chief Executive Officer or any such
authorized person may discharge any such employees and agents at will.
<PAGE>
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extent permitted by Section 7018 of
the New York Banking Law, indemnify any person who is or was made, or threatened
to be made, a party to an action or proceeding, whether civil or criminal,
whether involving any actual or alleged breach of duty, neglect or error, any
accountability, or any actual or alleged misstatement, misleading statement or
other act or omission and whether brought or threatened in any court or
administrative or legislative body or agency, including an action by or in the
right of the Company to procure a judgment in its favor and an action by or in
the right of any other corporation of any type or kind, domestic or foreign, or
any partnership, joint venture, trust, employee benefit plan or other
enterprise, which any director or officer of the Company is servicing or served
in any capacity at the request of the Company by reason of the fact that he, his
testator or intestate, is or was a director or officer of the Company, or is
serving or served such other corporation, partnership, joint venture, trust,
employee benefit plan or other enterprise in any capacity, against judgments,
fines, amounts paid in settlement, and costs, charges and expenses, including
attorneys' fees, or any appeal therein; provided, however, that no
indemnification shall be provided to any such person if a judgment or other
final adjudication adverse to the director or officer establishes that (i) his
acts were committed in bad faith or were the result of active and deliberate
dishonesty and, in either case, were material to the cause of action so
adjudicated, or (ii) he personally gained in fact a financial profit or other
advantage to which he was not legally entitled.
SECTION 2. The Company may indemnify any other person to whom the Company is
permitted to provide indemnification or the advancement of expenses by
applicable law, whether pursuant to rights granted pursuant to, or provided by,
the New York Banking Law or other rights created by (i) a resolution of
stockholders, (ii) a resolution of directors, or (iii) an agreement providing
for such indemnification, it being expressly intended that these By-Laws
authorize the creation of other rights in any such manner.
SECTION 3. The Company shall, from time to time, reimburse or advance to any
person referred to in Section 1 the funds necessary for payment of expenses,
including attorneys' fees, incurred in connection with any action or proceeding
referred to in Section 1, upon receipt of a written undertaking by or on behalf
of such person to repay such amount(s) if a judgment or other final adjudication
adverse to the director or officer establishes that (i) his acts were committed
in bad faith or were the result of active and deliberate dishonesty and, in
either case, were material to the cause of action so adjudicated, or (ii) he
personally gained in fact a financial profit or other advantage to which he was
not legally entitled.
SECTION 4. Any director or officer of the Company serving (i) another
corporation, of which a majority of the shares entitled to vote in the election
of its directors is held by the Company, or (ii) any employee benefit plan of
the Company or any corporation referred to in clause (i) in any capacity shall
be deemed to be doing so at the request of the Company. In all other cases, the
provisions of this Article V will apply (i) only if the person serving another
corporation or any partnership, joint venture, trust, employee benefit plan or
other enterprise so served at the specific request of the Company, evidenced by
a written communication signed by the Chairman of the Board, the Chief Executive
Officer or the President, and (ii) only if and to the extent that, after making
such efforts as the Chairman of the Board, the Chief Executive Officer or the
<PAGE>
President shall deem adequate in the circumstances, such person shall be unable
to obtain indemnification from such other enterprise or its insurer.
SECTION 5. Any person entitled to be indemnified or to the reimbursement or
advancement of expenses as a matter of right pursuant to this Article V may
elect to have the right to indemnification (or advancement of expenses)
interpreted on the basis of the applicable law in effect at the time of
occurrence of the event or events giving rise to the action or proceeding, to
the extent permitted by law, or on the basis of the applicable law in effect at
the time indemnification is sought.
SECTION 6. The right to be indemnified or to the reimbursement or advancement of
expense pursuant to this Article V (i) is a contract right pursuant to which the
person entitled thereto may bring suit as if the provisions hereof were set
forth in a separate written contract between the Company and the director or
officer, (ii) is intended to be retroactive and shall be available with respect
to events occurring prior to the adoption hereof, and (iii) shall continue to
exist after the rescission or restrictive modification hereof with respect to
events occurring prior thereto.
SECTION 7. If a request to be indemnified or for the reimbursement or
advancement of expenses pursuant hereto is not paid in full by the Company
within thirty days after a written claim has been received by the Company, the
claimant may at any time thereafter bring suit against the Company to recover
the unpaid amount of the claim and, if successful in whole or in part, the
claimant shall be entitled also to be paid the expenses of prosecuting such
claim. Neither the failure of the Company (including its Board of Directors,
independent legal counsel, or its stockholders) to have made a determination
prior to the commencement of such action that indemnification of or
reimbursement or advancement of expenses to the claimant is proper in the
circumstance, nor an actual determination by the Company (including its Board of
Directors, independent legal counsel, or its stockholders) that the claimant is
not entitled to indemnification or to the reimbursement or advancement of
expenses, shall be a defense to the action or create a presumption that the
claimant is not so entitled.
SECTION 8. A person who has been successful, on the merits or otherwise, in the
defense of a civil or criminal action or proceeding of the character described
in Section 1 shall be entitled to indemnification only as provided in Sections 1
and 3, notwithstanding any provision of the New York Banking Law to the
contrary.
<PAGE>
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in the charge of the Secretary of the Company
and such officers as the Chairman of the Board, the Chief Executive Officer or
the Secretary may from time to time direct in writing, to be affixed to
certificates of stock and other documents in accordance with the directions of
the Board of Directors or the Executive Committee.
SECTION 2. The Board of Directors may provide, in proper cases on a specified
occasion and for a specified transaction or transactions, for the use of a
printed or engraved facsimile seal of the Company.
ARTICLE VII
CAPITAL STOCK
SECTION 1. Registration of transfer of shares shall only be made upon the books
of the Company by the registered holder in person, or by power of attorney, duly
executed, witnessed and filed with the Secretary or other proper officer of the
Company, on the surrender of the certificate or certificates of such shares
properly assigned for transfer.
ARTICLE VIII
CONSTRUCTION
SECTION 1. The masculine gender, when appearing in these By-Laws, shall be
deemed to include the feminine gender.
ARTICLE IX
AMENDMENTS
SECTION 1. These By-Laws may be altered, amended or added to by the Board of
Directors at any meeting, or by the stockholders at any annual or special
meeting, provided notice thereof has been given.
<PAGE>
I, Marc J. Parilla, Assistant Vice President of Bankers Trust Company, New York,
New York, hereby certify that the foregoing is a complete, true and correct copy
of the By-Laws of Bankers Trust Company, and that the same are in full force and
effect at this date.
/s/ Marc J. Parilla
----------------------
Marc J. Parilla
Assistant Vice President
DATED: June 25, 1999
<PAGE>
<TABLE>
<S> <C> <C> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-1
City, State ZIP: New York, NY 10006 11
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR DECEMBER 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, reported the amount outstanding as of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<S> <C>
| C400 |
DOLLAR AMOUNTS IN THOUSANDS | RCFD BIL MIL THOU |
ASSETS | / / / / / / / / / / / / / / / / / / |
1. Cash and balances due from depository institutions (from Schedule RC-A): | / / / / / / / / / / / / / / / / / / |
a. Noninterest-bearing balances and currency and coin (1) ............ | 0081 2,772,000 |
b. Interest-bearing balances (2) ..................................... | 0071 2,497,000 |
2. Securities: | / / / / / / / / / / / / / / / / / / |
a. Held-to-maturity securities (from Schedule RC-B, column A) ........ | 1754 0 |
b. Available-for-sale securities (from Schedule RC-B, column D)....... | 1773 8,907,000 |
3. Federal funds sold and securities purchased under agreements to resell.. | 1350 22,851,000 |
4. Loans and lease financing receivables: | / / / / / / / / / / / / / / / / / / |
a. Loans and leases, net of unearned income | |
(from Schedule RC-C) RCFD 2122 21,882,000 | / / / / / / / / / / / / / / / / / / |
b. LESS: Allowance for loan and lease losses. RCFD 3123 620,000 | / / / / / / / / / / / / / / / / / / |
c. LESS: Allocated transfer risk reserve .... RCFD 3128 0 | / / / / / / / / / / / / / / / / / / |
d. Loans and leases, net of unearned income, | / / / / / / / / / / / / / / / / / / |
allowance, and reserve (item 4.a minus 4.b and 4.c) ............... | 2125 21,262,000 |
5. Trading Assets (from schedule RC-D) ................................... | 3545 39,983,000 |
6. Premises and fixed assets (including capitalized leases) ............... | 2145 974,000 |
7. Other real estate owned (from Schedule RC-M) ........................... | 2150 80,000 |
8. Investments in unconsolidated subsidiaries and associated companies | |
(from Schedule RC-M) | 2130 97,000 |
9. Customers' liability to this bank on acceptances outstanding ........... | 2155 232,000 |
10. Intangible assets (from Schedule RC-M) ................................. | 2143 278,000 |
11. Other assets (from Schedule RC-F) ...................................... | 2160 4,625,000 |
12. Total assets (sum of items 1 through 11) ............................... | 2170 104,558,000 |
</TABLE>
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(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
<PAGE>
<TABLE>
<S> <C> <C>
Legal Title of Bank: Bankers Trust Company Call Date: 12/31/98 ST-BK: 36-4840 FFIEC 031
Address: 130 Liberty Street Vendor ID: D CERT: 00623 Page RC-2
City, State Zip: New York, NY 10006 12
FDIC Certificate No.: | 0 | 0 | 6 | 2 | 3
</TABLE>
<TABLE>
<CAPTION>
SCHEDULE RC--CONTINUED
DOLLAR AMOUNTS IN THOUSANDS / / / / / / / / BIL MIL THOU __
- ------------------------------------------------------------------------------------------------------------------------------------
<S> <C> <C>
LIABILITIES | / / / / / / / / / / / / / / / / / / / / / / / |
13. Deposits: |
/ / / / / / / / / / / / / / / / / / / / / / / |
a. In domestic offices (sum of totals of columns A and C from Schedule RC-E, part I) | RCON 2200 20,409,000|
(1) Noninterest-bearing(1) .............................RCON 6631 3,124,000.....| / / / / / / / / / / / / / /|
(2) Interest-bearing ...................................RCON 6636 17,285,000.....| / / / / / / / / / / / / / /|
b. In foreign offices, Edge and Agreement subsidiaries, and IBFs (from Schedule RC-E | / / / / / / / / / / / / / /|
part II) | RCFN 2200 20,167,000|
(1) Noninterest-bearing ................................RCFN 6631 1,781,000 | / / / / / / / / / / / / / /|
(2) Interest-bearing ...................................RCFN 6636 18,386,000 | / / / / / / / / / / / / / /|
14. Federal funds purchased and securities sold under agreements to repurchase | RCFD 2800 13,919,000|
15. a. Demand notes issued to the U.S. Treasury ........................................ | RCON 2840 0|
b. Trading liabilities (from Schedule RC-D)......................................... | RCFD 3548 26,175,000|
16. Other borrowed money (includes mortgage indebtedness and obligations under capitalized
leases): | / / / / / / / / / / / / / /|
a. With a remaining maturity of one year or less ................................... | RCFD 2332 5,422,000|
b. With a remaining maturity of more than one year through three years............. | A547 1,766,000|
c. With a remaining maturity of more than three years............................... | A548 2,884,000|
17. Not Applicable. | / / / / / / / / / / / / / / |
18. Bank's liability on acceptances executed and outstanding ........................... | RCFD 2920 232,000|
19. Subordinated notes and debentures (2)............................................... | RCFD 3200 984,000|
20. Other liabilities (from Schedule RC-G) ............................................. | RCFD 2930 5,657,000|
21. Total liabilities (sum of items 13 through 20) ..................................... | RCFD 2948 97,615,000|
22. Not Applicable | / / / / / / / / / / / / / /|
| / / / / / / / / / / / / / /|
EQUITY CAPITAL | / / / / / / / / / / / / / /|
23. Perpetual preferred stock and related surplus ...................................... | RCFD 3838 1,500,000|
24. Common stock ....................................................................... | RCFD 3230 2,127,000|
25. Surplus (exclude all surplus related to preferred stock) ........................... | RCFD 3839 541,000|
26. a. Undivided profits and capital reserves ........................................ | RCFD 3632 3,200,000|
b. Net unrealized holding gains (losses) on available-for-sale securities ........ | RCFD 8434 ( 36,000)
27. Cumulative foreign currency translation adjustments ................................ | RCFD 3284 ( 389,000)
28. Total equity capital (sum of items 23 through 27) .................................. | RCFD 3210 6,943,000|
29. Total liabilities and equity capital (sum of items 21 and 28)....................... | RCFD 3300 104,558,000|
</TABLE>
Memorandum
To be reported only with the March Report of Condition.
<TABLE>
<S> <C> <C> <C> <C>
1. Indicate in the box at the right the number of the statement below that best describes the
most comprehensive level of auditing work performed for the bank by independent external NUMBER
auditors as of any date during 1998 .................................. | RCFD 6724 N/A | M.1
</TABLE>
<TABLE>
<S> <C>
1 = Independent audit of the bank conducted in accordance 4 = Directors' examination of the bank performed by
with generally accepted auditing standards by a certified other external auditors (may be required by state
public accounting firm which submits a report on the bank chartering authority)
2 = Independent audit of the bank's parent holding company 5 = Review of the bank's financial statements by
conducted in accordance with generally accepted auditing external auditors
standards by a certified public accounting firm which 6 = Compilation of the bank's financial statements by
submits a report on the consolidated holding company external auditors
(but not on the bank separately) 7 = Other audit procedures (excluding tax preparation
3 = Directors' examination of the bank conducted in work)
accordance with generally accepted auditing standards by a 8 = No external audit work
certified public accounting firm (may be required by state
chartering authority)
</TABLE>
- ----------------------
(1) Including total demand deposits and noninterest-bearing time and
savings deposits.
(2) Includes limited-life preferred stock and related surplus.
