<PAGE>
As filed with the Securities and Exchange Commission on February 22, 1994
Registration No. 33-_______
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM S-3
Registration Statement
Under
The Securities Act of 1933
_________________
TOYOTA MOTOR CREDIT CORPORATION
(Exact name of registrant as specified in its charter)
CALIFORNIA 95-3775816
(State of incorporation) (I.R.S. Employer
Identification Number)
19001 South Western Avenue
Torrance, California 90509
(310) 787-1310
(Address, including zip code, and telephone number, including area code,
of registrant's principal executive offices)
__________________
William A. Plourde, Jr., Esq.
General Counsel
Toyota Motor Credit Corporation
19001 South Western Avenue
Torrance, California 90509
(310) 618-4000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
___________________
Copies to:
Joseph J. Herron, Esq.
O'Melveny & Myers
610 Newport Center Drive
Newport Beach, California 92660
(714) 760-9600
____________________
Approximate date of commencement of proposed sale to the public: From time
to time after the effective date of this Registration Statement as determined by
market conditions.
____________________
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 of the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. /x/
_____________________
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
<S> <C> <C> <C> <C>
Title of each Class Amount Proposed Maximum Proposed Maximum Amount of
of Securities to to be Offering Price Aggregate Registration
be Registered Registered(1)(2) Per Unit (3) Offering Price(3) Fee
- ----------------------------------------------------------------------------------------------
Debt Securities $4,000,000,000 100% $4,000,000,000 $1,379,310
<FN>
(1) In U.S. Dollars or the equivalent thereof in one or more foreign or
composite currencies.
(2) Plus such additional principal amount as may be necessary such that the
aggregate initial offering price of all Debt Securities, if any, issued
with original issue discount will equal their aggregate principal amount at
maturity.
(3) Estimated solely for the purpose of determining the registration fee.
</TABLE>
____________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SECTION 8(A), MAY
DETERMINE.
<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.
SUBJECT TO COMPLETION
PRELIMINARY PROSPECTUS DATED FEBRUARY 22, 1994
PROSPECTUS
[TMCC Logo]
TOYOTA MOTOR CREDIT CORPORATION
Debt Securities
________________
Toyota Motor Credit Corporation ("TMCC") may offer from time to time
its senior unsecured debt securities consisting of notes, debentures or other
evidences of indebtedness (the "Debt Securities"), in an aggregate principal
amount of not more than $4,000,000,000 (the initial offering price of Debt
Securities sold at a discount will be used for purposes of the limitation) or,
if applicable, the equivalent thereof in any other currency or currencies. The
Debt Securities may be offered as a single series or as two or more separate
series in amounts, at prices and on terms to be determined in light of market
conditions at the time of sale and to be set forth in a Prospectus Supplement or
Prospectus Supplements.
The terms of each series of Debt Securities, including, where
applicable, the specific designation, aggregate principal amount, authorized
denominations, maturity, rate or rates and time or times of payment of any
interest, any terms for optional or mandatory redemption or payment of
additional amounts or any sinking fund provisions, the initial public offering
price, the proceeds to TMCC and any other specific terms in connection with the
offering and sale of such series will be set forth in a Prospectus Supplement or
Prospectus Supplements. As used herein, Debt Securities shall include debt
securities denominated in United States dollars or, at the option of TMCC if so
specified in an applicable Prospectus Supplement, in any other currency or in
composite currencies or in amounts determined by reference to an index.
The Debt Securities may be sold directly by TMCC, through agents
designated from time to time or to or through underwriters or dealers. See
"Plan of Distribution." If any agents of TMCC or any underwriters are involved
in the sale of any Debt Securities in respect of which this Prospectus is being
delivered, the names of such agents or underwriters and any applicable
commissions or discounts will be set forth in the applicable Prospectus
Supplement. The net proceeds to TMCC from such sale also will be set forth in
the applicable Prospectus Supplement.
________________________
THE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE
COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE
CONTRARY IS A CRIMINAL OFFENSE.
_________________________
This Prospectus may not be used to consummate sales of Debt
Securities unless accompanied by a Prospectus Supplement.
THE DATE OF THIS PROSPECTUS IS ___________, 1994.
<PAGE>
THE COMMISSIONER OF INSURANCE OF THE STATE OF NORTH CAROLINA HAS NOT
APPROVED OR DISAPPROVED THIS OFFERING NOR HAS THE COMMISSIONER PASSED UPON THE
ACCURACY OR ADEQUACY OF THIS PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT HERETO.
AVAILABLE INFORMATION
TMCC is subject to the informational requirements of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and in accordance
therewith files reports and other information with the Securities and Exchange
Commission (the "Commission"). Such reports and other information can be
inspected and copied at the Public Reference Room of the Commission, Room 1024,
at 450 Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
regional offices at 7 World Trade Center, New York, New York 10048 and
Northwestern Atrium Center, Suite 1400, 500 West Madison Street, Chicago,
Illinois 60661-2511. Copies of such material may also be obtained by mail from
the Public Reference Section of the Commission, at 450 Fifth Street, N.W., Room
1024, Washington, D.C. 20549 at prescribed rates. Copies of such reports and
other information may also be inspected at the offices of the New York Stock
Exchange, Inc., 20 Broad Street, New York, New York 10005, on which an issue of
TMCC's debt securities is listed.
TMCC has filed with the Commission a Registration Statement on Form
S-3 (together with all amendments and exhibits thereto, the "Registration
Statement") under the Securities Act of 1933, as amended (the "Securities Act").
This Prospectus and the accompanying Prospectus Supplement do not contain all of
the information set forth in the Registration Statement, certain parts of which
are omitted in accordance with the rules and regulations of the Commission. For
further information, reference is made to the Registration Statement, which may
be examined without charge at the public reference facilities maintained by the
Commission at the Public Reference Room of the Commission, Room 1024, 450 Fifth
Street, N.W., Washington, D.C. 20549. Copies thereof may be obtained from the
Commission upon payment of the prescribed fees.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
TMCC's Annual Report on Form 10-K for the fiscal year ended
September 30, 1993 and its Quarterly Report on Form 10-Q for the quarter ended
December 31, 1993 are incorporated in and made a part of this Prospectus. All
documents filed by TMCC with the Commission pursuant to Section 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Debt Securities shall be deemed to be
incorporated by reference herein and to be a part hereof from the date of filing
such documents. A statement contained herein, in a Prospectus Supplement or in
a document incorporated or deemed to be incorporated by reference herein shall
be deemed to be modified or superseded for purposes of this Prospectus to the
extent that a statement contained herein, in a Prospectus Supplement or in any
subsequently filed document which is incorporated by reference herein modifies
or supersedes such statement. Any such statements so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part
of this Prospectus.
TMCC WILL PROVIDE WITHOUT CHARGE TO EACH PERSON TO WHOM THIS
PROSPECTUS IS DELIVERED, ON THE REQUEST OF ANY SUCH PERSON, A COPY OF ANY OR ALL
OF THE DOCUMENTS INCORPORATED HEREIN BY REFERENCE (OTHER THAN EXHIBITS TO SUCH
DOCUMENTS, UNLESS SUCH EXHIBITS ARE SPECIFICALLY INCORPORATED BY REFERENCE INTO
THE DOCUMENTS THAT THIS PROSPECTUS INCORPORATES). REQUESTS FOR SUCH COPIES
SHOULD BE DIRECTED TO TOYOTA MOTOR CREDIT CORPORATION, 19001 SOUTH WESTERN
AVENUE, TORRANCE, CALIFORNIA 90509, ATTENTION: TREASURY, TELEPHONE NUMBER (310)
787-1310.
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TOYOTA MOTOR CREDIT CORPORATION
TMCC provides retail and wholesale financing, retail leasing and
certain other financial services to authorized Toyota and Lexus vehicle and
Toyota industrial equipment dealers and their customers in the United States
(excluding Hawaii). TMCC is a wholly owned subsidiary of Toyota Motor Sales, U.
S. A., Inc. ("TMS"). TMS is primarily engaged in the wholesale distribution of
automobiles, light trucks, industrial equipment and related replacement parts
and accessories throughout the United States (excluding Hawaii). Substantially
all of TMS's products are either manufactured by its subsidiaries or are
purchased from Toyota Motor Corporation ("TMC"), the parent of TMS, or TMC's
affiliates. TMCC and its subsidiaries are collectively referred to as the
"Company."
TMCC was incorporated in California on October 4, 1982, and
commenced operations in May 1983. TMCC's principal executive offices are
located in the TMS headquarters complex at 19001 South Western Avenue, Torrance,
California 90509, and its telephone number is (310) 787-1310.
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which
accompanies this Prospectus, the net proceeds from the sale of the Debt
Securities will be added to TMCC's general funds and will be available for the
purchase of earning assets and for the retirement of debt. Such proceeds
initially may be used to reduce short-term borrowings or may be invested in
short-term securities.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities may be issued from time to time as a single
series or in two or more separate series. The following description of the
terms of the Debt Securities sets forth certain general terms and provisions of
the Debt Securities to which any Prospectus Supplement may relate. The
particular terms of the Debt Securities offered by any Prospectus Supplement
(the "Offered Debt Securities"), and the extent to which such general provisions
may apply to the Offered Debt Securities, will be described in a Prospectus
Supplement relating to such Offered Debt Securities.
The Debt Securities will be issued under an indenture, dated as of
August l, 1991, as amended and supplemented by a first supplemental indenture
dated as of October 1, 1991, as such indenture may be further amended from time
to time (the "Indenture"), between TMCC and the trustee with respect to one or
more series of Debt Securities designated in the applicable Prospectus
Supplement or Prospectus Supplements (the "Trustee"). The terms of the Debt
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and holders of the Debt Securities are referred to the
Indenture and the Trust Indenture Act for a statement thereof. The following
summary of certain provisions of the Debt Securities and of the Indenture does
not purport to be complete and is qualified in its entirety by reference to the
Indenture, a copy of which has been filed as an exhibit to the Registration
Statement of which this Prospectus is a part. Capitalized terms used but not
defined herein have the meanings given to them in the Indenture.
THE DEBT SECURITIES WILL BE OBLIGATIONS SOLELY OF TMCC AND WILL NOT
BE OBLIGATIONS OF, OR GUARANTEED BY, TMS OR TMC DIRECTLY OR INDIRECTLY.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities which may be issued thereunder and Debt Securities may be issued
thereunder from time to time as a single series or in two or more separate
series up to the aggregate principal amount from time to time authorized by TMCC
for each series. As of the date of this Prospectus, TMCC has authorized the
issuance under the Indenture of up to $8,300,000,000 aggregate principal amount
of debt securities (the initial offering price of Debt Securities sold at a
discount is used for purposes of this limitation) of which approximately
$_____________ aggregate principal amount have previously been issued.
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The Debt Securities will be unsecured general obligations of TMCC
and will rank pari passu with all other unsecured and unsubordinated
indebtedness of TMCC from time to time outstanding.
The applicable Prospectus Supplement or Prospectus Supplements will
describe the terms of the Offered Debt Securities, including: (i) the aggregate
principal amount and denominations of such Debt Securities; (ii) the date on
which such Debt Securities will mature; (iii) the date or dates on which the
principal of such Debt Securities is payable, if other than on maturity, or the
method of determination thereof; (iv) the rate or rates per annum (which may be
fixed or variable), or the formula for determining such rate or rates, at which
such Debt Securities will bear interest, if any; (v) the dates on which such
interest, if any, will be payable; (vi) the Place of Payment or transfer with
respect to such Debt Securities; (vii) the provisions for redemption or
repayment of such Debt Securities, if any, including the redemption and/or
repayment price or prices and any remarketing arrangements relating thereto;
(viii) the sinking fund requirements or amortization provisions, if any, with
respect to such Debt Securities; (ix) whether such Debt Securities are
denominated or provide for payment in United States dollars or a foreign
currency or units of two or more currencies; (x) the form (registered or bearer
or both) in which such Debt Securities may be issued and any restrictions
applicable to the exchange of one form for another and to the offer, sale and
delivery of Debt Securities in either form; (xi) if TMCC will pay Additional
Amounts in respect of Debt Securities held by a person who is not a U.S. person
in respect of specified taxes, assessments or other governmental charges, under
what circumstances TMCC will pay such Additional Amounts and whether TMCC has
the option to redeem the affected Debt Securities rather than pay such
Additional Amounts; (xii) whether such Debt Securities will be issued in whole
or in part in the form of one or more global securities and, in such case, the
Depositary for such global securities; (xiii) the title of such Debt Securities,
the series of which such Debt Securities shall be a part and the Trustee with
respect to such Debt Securities; and (xiv) any other terms of such Debt
Securities. Reference is made to the Prospectus Supplement for the terms of the
Debt Securities being offered thereby. The variable terms of the Debt
Securities are subject to change from time to time, but no such change will
affect any Debt Security already issued or as to which an offer to purchase has
been accepted by TMCC.
The provisions of the Indenture described above provide TMCC with
the ability, in addition to the ability to issue Debt Securities with terms
different from those of Debt Securities previously issued, to "reopen" a
previous issue or a series of Debt Securities and issue additional Debt
Securities of such issue or series.
PAYMENT AND PAYING AGENTS
Unless otherwise indicated in an applicable Prospectus Supplement,
payment of principal of and premium and interest, if any, on Debt Securities
will be made at the office of such Paying Agent or Paying Agents as TMCC may
designate from time to time, except that at the option of TMCC payment of any
interest may be made (i) by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register or (ii) by wire
transfer to an account maintained by the Person entitled thereto as specified in
the Security Register. Unless otherwise indicated in an applicable Prospectus
Supplement, payment of any installment of interest on Debt Securities will be
made to the Person in whose name such Debt Security is registered at the close
of business on the Regular Record Date for such interest.
Unless otherwise indicated in an applicable Prospectus Supplement,
the Trustee with respect to the Debt Securities of the related series, acting
through its Corporate Trust Office, will be designated as TMCC's sole Paying
Agent for payments with respect to Debt Securities of such series. TMCC may at
any time designate additional Paying Agents or rescind the designation of any
Paying Agent or approve a change in the office through which any Paying Agent
acts, except that TMCC will be required to maintain a Paying Agent in each Place
of Payment for such series. All moneys paid by TMCC to a Paying Agent for the
payment of principal of or premium or interest, if any, on any Debt Security
which remain unclaimed at the end of one year after such principal, premium or
interest shall have become due and payable will be repaid to TMCC, and the
Holder of such Debt Security or any coupon will thereafter look only to TMCC for
payment thereof.
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GLOBAL SECURITIES
The Debt Securities of a series may be issued in whole or in part in
global form. A Debt Security in global form will be deposited with, or on
behalf of, a Depositary, which will be identified in an applicable Prospectus
Supplement. A global Debt Security may be issued in either registered or bearer
form and in either temporary or permanent form. A Debt Security in global form
may not be transferred except as a whole by the Depositary for such Debt
Security to a nominee of such Depositary or by a nominee of such Depositary to
such Depositary or another nominee of such Depositary or by such Depositary or
any such nominee to a successor of such Depositary or a nominee of such
successor. If any Debt Securities of a series are issuable in global form, the
applicable Prospectus Supplement will describe the circumstances, if any, under
which beneficial owners of interests in any such global Debt Security may
exchange such interests for definitive Debt Securities of such series and of
like tenor and principal amount in any authorized form and denomination, the
manner of payment of principal of, premium and interest, if any, on any such
global Debt Security and the material terms of the depositary arrangement with
respect to any such global Debt Security.
CERTAIN COVENANTS
The Debt Securities will not be secured by mortgage, pledge or other
lien. TMCC has covenanted in the Indenture not to pledge or otherwise subject
to any lien any property or assets of TMCC unless the Debt Securities are
secured by such pledge or lien equally and ratably with all other obligations
secured thereby so long as such obligations shall be so secured; provided,
however, that such covenant does not apply to liens securing obligations which
do not in the aggregate at any one time outstanding exceed 5% of Consolidated
Net Tangible Assets (as defined below) of TMCC and its consolidated subsidiaries
and also does not apply to:
(a) the pledge of any assets of TMCC to secure any financing
by TMCC of the exporting of goods to or between, or the marketing
thereof in, countries other than the United States in connection with
which TMCC reserves the right, in accordance with customary and
established banking practice, to deposit, or otherwise subject to a
lien, cash, securities or receivables for the purpose of securing
banking accommodations or as the basis for the issuance of bankers'
acceptances or in aid of other similar borrowing arrangements;
(b) the pledge of receivables payable in currencies other
than United States dollars to secure borrowings in countries other than
the United States;
(c) any deposit of assets of TMCC 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 TMCC from any judgment or decree
against it, or in connection with other proceedings in actions at law or
in equity by or against TMCC or in favor of any governmental bodies to
secure progress, advance or other payments in the ordinary course of
TMCC's business;
(d) any lien or charge on any property of TMCC, tangible or
intangible, real or personal, existing at the time of acquisition or
construction of such property (including acquisition through merger or
consolidation) or given to secure the payment of all or any part of the
purchase or construction price thereof or to secure any indebtedness
incurred prior to, at the time of, or within one year after, the
acquisition or completion of construction thereof for the purpose of
financing all or any part of the purchase or construction price thereof;
(e) any lien in favor of the United States of America or any
state thereof or the District of Columbia, or any agency, department or
other instrumentality thereof, to secure progress, advance or other
payments pursuant to any contract or provision of any statute;
(f) any lien securing the performance of any contract or
undertaking not directly or indirectly in connection with the borrowing
of money, obtaining of advances or credit or the securing of debt, if
made and continuing in the ordinary course of business;
(g) any lien to secure non-recourse obligations in connection
with TMCC's engaging in leveraged or single-investor lease transactions;
and
5
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(h) any extension, renewal or replacement (or successive
extensions, renewals or replacements), in whole or in part, of any lien,
charge or pledge referred to in clauses (a) through (g) above, provided,
however, that the amount of any and all obligations and indebtedness
secured thereby will not exceed the amount thereof so secured
immediately prior to the time of such extension, renewal or replacement,
and that such extension, renewal or replacement will be limited to all
or a part of the property which secured the charge or lien so extended,
renewed or replaced (plus improvements on such property).
"Consolidated Net Tangible Assets" means the aggregate amount of
assets (less applicable reserves and other properly deductible items) after
deducting therefrom (i) all current liabilities and (ii) all goodwill, trade
names, trademarks, patents, unamortized debt discount and expense and other like
intangibles of TMCC and its consolidated subsidiaries, all as set forth on the
most recent balance sheet of TMCC and its consolidated subsidiaries prepared in
accordance with generally accepted accounting principles as practiced in the
United States.
SUCCESSOR CORPORATION
The Indenture provides that TMCC may consolidate with, or sell,
lease or convey all or substantially all of its assets to, or merge with or
into, any other corporation, provided, that in any such case: (i) either TMCC
shall be the continuing corporation, or the successor corporation shall be a
corporation organized and existing under the laws of the United States or any
state thereof and shall expressly assume, by a supplemental indenture, executed
and delivered to each Trustee, in form satisfactory to each Trustee, all of the
obligations of TMCC under the Debt Securities and the Indenture; and (ii) TMCC
or such successor corporation, as the case may be, shall not, immediately after
such merger or consolidation, or such sale, lease or conveyance, be in default
in the performance of any such obligation. Subject to certain limitations in
the Indenture, a Trustee may receive from TMCC an officer's certificate and an
opinion of counsel as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, complies with the provisions
of the Indenture.
SUPPLEMENTAL INDENTURES
Supplemental indentures may be entered into by TMCC and the
appropriate Trustee with the consent of the Holders of 66 2/3% in principal
amount of any series of outstanding Debt Securities, for the purpose of adding
any provisions to or changing in any manner or eliminating any of the provisions
of the Indenture or of modifying in any manner the rights of the Holders of each
such series affected by such modification or amendment, provided that no
supplemental indenture may, among other things, reduce the principal amount of
or interest on any Debt Securities, change the maturity date of the principal,
the interest payment dates or other terms of payment or reduce the percentage in
principal amount of outstanding Debt Securities of any series the consent of
whose Holders is necessary to modify or alter the Indenture, without the consent
of each Holder of Debt Securities affected thereby. Under certain
circumstances, supplemental indentures may also be entered into without the
consent of the Holders.
EVENTS OF DEFAULT
The Indenture defines an Event of Default with respect to any series
of Debt Securities as being any one of the following events and such other
events as may be established for the Debt Securities of a particular series: (i)
default in payment of principal on the Debt Securities of such series; (ii)
default in payment of any interest on the Debt Securities of such series and
continuance of such default for a period of 30 days; (iii) default in the
deposit of any sinking fund payment with respect to Debt Securities of such
series when and as due; (iv) default in the performance, or breach, of any other
covenant or warranty of TMCC in the Indenture (other than a covenant or warranty
included in the Indenture solely for the benefit of a series of Debt Securities
other than such series) continued for 60 days after appropriate notice; and (v)
certain events of bankruptcy, insolvency or reorganization. No Event of Default
with respect to a particular series of Debt Securities issued under the
Indenture necessarily constitutes an Event of Default with respect to any other
series of Debt Securities issued thereunder. If an Event of Default occurs and
is continuing, the appropriate Trustee or the Holders of at least 25% in
aggregate principal amount of Debt Securities of each series affected thereby
may declare the Debt Securities of such series to be due and payable. Any past
default with respect to a particular series of Debt Securities may be waived by
the Holders of a majority in aggregate principal amount of the outstanding Debt
Securities of such series, except in a case of failure to pay principal of, or
premium, if any, or interest on such Debt Securities for which payment had not
been subsequently made
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or a default in respect of a covenant or provision of the Indenture which cannot
be modified or amended without the consent of the Holder of each outstanding
Debt Security of such series. TMCC will be required to file with each Trustee
annually an officer's certificate as to the absence of certain defaults. The
appropriate Trustee may withhold notice to Holders of any series of Debt
Securities of any default with respect to such series (except in payment of
principal, premium, if any, or interest) if it in good faith determines that it
is in the interest of such Holders to do so.
Subject to the provisions of the Indenture relating to the duties of
a Trustee in case an Event of Default shall occur and be continuing, a Trustee
will be under no obligation to exercise any of its rights or powers under the
Indenture at the request or direction of any of the Holders, unless such Holders
have offered to such Trustee reasonable indemnity or security against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction. Subject to provisions in the Indenture for the
indemnification of a Trustee and to certain other limitations, the Holders of a
majority in principal amount of the outstanding Debt Securities of any series
will have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the appropriate Trustee, or exercising
any trust or power conferred on such Trustee with respect to the Debt Securities
of such series.
SATISFACTION AND DISCHARGE OF INDENTURE
The Indenture will be discharged with respect to the Debt Securities
of any series upon the satisfaction of certain conditions, including the payment
in full of the principal of, and premium, if any, and interest on all of the
Debt Securities of such series or the deposit with the appropriate Trustee of an
amount in cash or United States government obligations sufficient for such
payment or redemption, in accordance with the Indenture.
DEFEASANCE
TMCC may terminate certain of its obligations under the Indenture
with respect to the Debt Securities of any series, including its obligations to
comply with the restrictive covenants set forth in the Indenture (see "Certain
Covenants") with respect to the Debt Securities of such series, on the terms and
subject to the conditions contained in the Indenture, by depositing in trust
with the appropriate Trustee cash or United States government obligations
sufficient to pay the principal of, and premium, if any, and interest on the
Debt Securities of such series to their maturity in accordance with the terms of
the Indenture and the Debt Securities of such series. In such event, the
appropriate Trustee will receive an opinion of counsel stating that such deposit
and termination will not have any federal income tax consequences to the
Holders.
REGARDING THE TRUSTEES
The Indenture contains certain limitations on the right of a
Trustee, should it become a creditor of TMCC, to obtain payment of claims in
certain cases, or to realize on certain property received in respect of any such
claim as security or otherwise. A Trustee is permitted to engage in other
transactions with TMCC; provided, however, that if a Trustee acquires any
conflicting interest it must eliminate such conflict or resign.
The Indenture provides that, in case an Event of Default has
occurred and is continuing, a Trustee is required to use the degree of care and
skill of a prudent person in the conduct of his or her own affairs in the
exercise of its powers.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by and
construed in accordance with the laws of the State of New York.
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PLAN OF DISTRIBUTION
TMCC may sell the Debt Securities through underwriters or agents or
directly to purchasers. A Prospectus Supplement will set forth the names of
such underwriters or agents, if any.
The Debt Securities may be sold to underwriters for their own
account and may be resold to the public from time to time in one or more
transactions, including negotiated transactions, at a fixed public offering
price or at varying prices determined at the time of sale. A Prospectus
Supplement will set forth any underwriting discounts and other items
constituting underwriters' compensation, any initial public offering price and
any discounts or concessions allowed or reallowed or paid to dealers.
The Debt Securities may be sold directly by TMCC, or through agents
designated by TMCC from time to time. A Prospectus Supplement will set forth
any commission payable by TMCC to such agent. Unless otherwise indicated in the
Prospectus Supplement, any such agent will be acting on a reasonable efforts
basis for the period of its appointment.
The net proceeds to TMCC from the sale of the Debt Securities will
be the purchase price of the Debt Securities less any such discounts or
commissions and the other attributable expenses of issuance and distribution.
TMCC will agree to indemnify underwriters and agents against certain
civil liabilities, including liabilities under the Securities Act, or contribute
to payments underwriters or agents may be required to make in respect thereof.
LEGAL MATTERS
The validity of the Debt Securities offered hereby will be passed
upon for TMCC by O'Melveny & Myers. Unless otherwise specified in an applicable
Prospectus Supplement, Brown & Wood will act as counsel for the underwriters or
agents, if any.
EXPERTS
The consolidated financial statements incorporated in this
Prospectus by reference to the Annual Report on Form 10-K of TMCC for the year
ended September 30, 1993, have been so incorporated in reliance on the report of
Price Waterhouse, independent accountants, given on the authority of said firm
as experts in auditing and accounting.
8
<PAGE>
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
The expenses of this offering are estimated as follows:
<S> <C>
SEC Registration Fee . . . . . . . . . . . . $1,379,310
Blue Sky fees and expenses . . . . . . . . . 25,000
Printing and engraving expenses. . . . . . . *
Legal fees and expenses. . . . . . . . . . . *
Accounting fees and expenses . . . . . . . . *
Trustees fees. . . . . . . . . . . . . . . . 35,000
Miscellaneous. . . . . . . . . . . . . . . . 15,000
----------
Total . . . . . . . . . . . . . . . *
----------
----------
<FN>
_____________________________
*To be provided by amendment.
</TABLE>
ITEM 15. Indemnification of Directors and Officers.
Section 317 of the California Corporations Code authorizes a
corporation to indemnify any person who was or is a party or is threatened to be
made a party to any proceeding (other than an action by or in the right of the
corporation to procure a judgment in its favor) by reason of the fact that such
person is or was an officer or director of the corporation, against expenses,
judgments, fines, settlements and other amounts actually and reasonably incurred
in connection with such proceeding if such person acted in good faith and in a
manner such person reasonably believed to be in the best interests of the
corporation and, in the case of a criminal proceeding, had no reasonable cause
to believe the conduct of such person was unlawful.
TMCC's Bylaws authorize TMCC to indemnify its officers and directors
to the maximum extent permitted by the California Corporations Code. TMCC has
entered into indemnification agreements with its officers and directors to
indemnify such officers and directors to the maximum extent permitted by the
California Corporations Code.
II-1
<PAGE>
ITEM 16. Exhibits.
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<C> <S>
4.1(a) Indenture dated as of August 1, 1991 between TMCC and The Chase
Manhattan Bank, N.A.
4.1(b)(1) First Supplemental Indenture dated as of October 1, 1991 among TMCC,
Bankers Trust Company and The Chase Manhattan Bank, N.A.
5.1 Opinion of O'Melveny & Myers.
12.1(2) Calculation of ratio of earnings to fixed charges.
12.2(3) Calculation of ratio of earnings to fixed charges excluding Parent
adjustment.
23.1 Consent of Price Waterhouse.
23.2 Consent of O'Melveny & Myers (included in Exhibit 5.1).
24.1 Power of Attorney (contained on page II-4).
25.1 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank, N.A..
25.2 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Bankers Trust Company.
<FN>
_________________________
(1) Incorporated by reference to the same numbered exhibit filed with
TMCC's Registration Statement on Form S-3. File No. 33-42854.
(2) Incorporated herein by reference to the same numbered exhibits filed
with TMCC's Annual Report on Form 10-K. File No. 1-9961, for the fiscal year
ended September 30, 1993 and TMCC'S Quarterly Report on Form 10-Q, File No. 1-
9961, for the quarterly period ended december 31, 1993.
(3) Incorporated herein by reference to the same numbered exhibit filed
with TMCC's Annual Report on Form 10-K, File No. 1-9961, for the fiscal year
ended September 30, 1993.
</TABLE>
II-2
<PAGE>
ITEM 17. UNDERTAKINGS.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, 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.
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, unless the information required to be
included in such post-effective amendment is contained in
periodic reports filed by the registrant pursuant to Section 13
or Section 15(d) of the Exchange Act and incorporated herein by
reference;
(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,
unless the information required to be included in such post-
effective amendment is contained in a periodic report filed by
the registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act and incorporated herein by reference;
(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.
(2) That, for the purpose of determining any liability under the
Securities Act, each 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 bone fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(4) That, for purposes of determining any liability under the
Securities Act, each filing of the registrant's annual report pursuant
to Section 13(a) or 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.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act, 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 Torrance, State of California, on the 22nd day of
February, 1994.
TOYOTA MOTOR CREDIT CORPORATION
By /s/ Wolfgang Jahn
__________________________________________
Wolfgang Jahn
Group Vice President
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Patrick J. Breene, Lloyd Mistele and Dian
D. Ogilvie and each or either of them, as his or her true and lawful attorney-
in-fact and agent, with full power of substitution, for him or her and in his or
her name, place and stead, in any and all capacities, to sign any or all
amendments or post-effective amendments to this Registration Statement, and to
file the same, with all exhibits thereto, and other documents in connection
therewith, with the Commission, granting unto said attorney-in-fact and agent
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 all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorney-in-fact and agent, or his or her
substitute, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this
registration statement has been signed by the following persons in the
capacities indicated on the 22nd day of February, 1994.
<TABLE>
<CAPTION>
Signature Title
- --------- -----
<C> <S>
/s/ Wolfgang Jahn
__________________________ Group Vice President and
Wolfgang Jahn Director
(principal executive officer)
/s/ Takafumi Murai
__________________________ Senior Vice President, Treasurer
Takafumi Murai and Director
(principal financial officer)
/s/ Patrick Breene
__________________________ Controller
Patrick Breene (principal accounting officer)
/s/ Shinji Sakai
__________________________ Director
Shinji Sakai
/s/ John McGovern
__________________________ Director
John McGovern
</TABLE>
II-4
<PAGE>
<TABLE>
<C> <S>
/s/ Yale Gieszl
__________________________ Director
Yale Gieszl
/s/ Robert Pitts
__________________________ Director
Robert Pitts
/s/ Takashi Nishiyama
__________________________ Director
Takashi Nishiyama
</TABLE>
II-5
<PAGE>
EXHIBIT INDEX
<TABLE>
<CAPTION>
Exhibit
No. Description
- ------- -----------
<C> <S>
4.1(a) Indenture dated as of August 1, 1991 between TMCC and The Chase
Manhattan Bank, N.A.
4.1(b)(1) First Supplemental Indenture dated as of October 1, 1991 among TMCC,
Bankers Trust Company and The Chase Manhattan Bank, N.A.
5.1 Opinion of O'Melveny & Myers.
12.1(2) Calculation of ratio of earnings to fixed charges.
12.2(3) Calculation of ratio of earnings to fixed charges excluding Parent
adjustment.
23.1 Consent of Price Waterhouse.
23.2 Consent of O'Melveny & Myers (included in Exhibit 5.1).
24.1 Power of Attorney (contained on page II-4).
25.1 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank, N.A.
25.2 Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of Bankers Trust Company.
<FN>
_________________________
(1) Incorporated by reference to the same numbered exhibit filed
with TMCC's Registration Statement on Form S-3, File No. 33-42854.
(2) Incorporated herein by reference to the same numbered exhibits
filed with TMCC's Annual Report on Form 10-K, File No. 1-9961, for the fiscal
year ended September 30, 1993 and TMCC's Quarterly Report on Form 10-Q, File No.
1-9961, for the quarterly period ended December 31, 1993.
(3)Incorporated herein by reference to the same numbered exhibit
filed with TMCC's Annual Report on Form 10-K, File No. 1-9961, for the fiscal
year ended September 30, 1993.
</TABLE>
<PAGE>
APPENDIX
DESCRIPTION OF TOYOTA MOTOR CREDIT CORPORATION LOGO
The words "Toyota Motor Credit Corporation" are set forth in red
block capital letters and are surrounded by a red box. Next to the name of the
corporation, inside the box, are the initials "TMCC" in red block capital
letters surrounded by a red box.
<PAGE>
EXECUTION COPY
- -------------------------------------------------------------------------------
Toyota Motor Credit Corporation,
Issuer
to
The Chase Manhattan Bank, N.A.,
Trustee
_______________
INDENTURE
_______________
Dated as of August 1, 1991
Debt Securities
- -------------------------------------------------------------------------------
<PAGE>
RECONCILIATION AND TIE SHEET*
between
PROVISIONS OF THE TRUST INDENTURE ACT OF 1939
and
INDENTURE DATED AS OF AUGUST 1, 1991
between
TOYOTA MOTOR CREDIT CORPORATION
and
THE CHASE MANHATTAN BANK, N.A.
Section Section of
of Act Indenture
------- ----------
310(a)(1) ............................................ 606
310(a)(2) ............................................ 606
310(a)(3) ............................................ Inapplicable
310(a)(4) ............................................ Inapplicable
310(b) ............................................... 607
310(c) ............................................... Inapplicable
311(a) ............................................... 603
311(b) ............................................... 603
311(c) ............................................... Inapplicable
312(a) ............................................... 701(a), 702
312(b) ............................................... 702
312(c) ............................................... 702
313(a) ............................................... 703(a)
313(b)(1) ............................................ Inapplicable
313(b)(2) ............................................ 703(b)
313(c) ............................................... 703(c)
313(d) ............................................... 703(c)
314(a)(1) ............................................ 704
314(a)(2)............................................. 704
314(a)(3) ............................................ 704
314(b) ............................................... Inapplicable
314(c)(1) ............................................ 102
314(c)(2) ............................................ 102
314(c)(3) ............................................ Inapplicable
314(d) ............................................... Inapplicable
314(e) ............................................... 102
314(f) ............................................... Omitted
315(a) ............................................... 601
315(b) ............................................... 611
315(c) ............................................... 601
315(d) ............................................... 601
315(e) ............................................... 514
316(a)(1) ............................................ 512
316(a)(2) ............................................ Omitted
316(b)................................................ 508
317(a) ............................................... 503, 504
317(b) ............................................... 1003
318(a) ............................................... 108
- ----------------------------
* This Reconciliation and Tie Sheet is not a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
PAGE
Recitals................................................................ 1
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. Definitions.............................................. 2
Section 102. Compliance Certificates and Opinions..................... 11
Section 103. Form of Documents Delivered to Trustee................... 11
Section 104. Acts of Holders.......................................... 12
Section 105. Notices, etc. to Trustee and Company..................... 14
Section 106. Notice to Holders of Securities; Waiver.................. 15
Section 107. Language of Notices...................................... 16
Section 108. Conflict with Trust Indenture Act........................ 16
Section 109. Effect of Headings and Table of Contents................. 16
Section 110. Successors and Assigns................................... 16
Section 111. Separability Clause...................................... 16
Section 112. Benefits of Indenture.................................... 16
Section 113. Governing Law............................................ 17
Section 114. Legal Holidays........................................... 17
ARTICLE TWO
Securities Forms
Section 201. Forms Generally.......................................... 17
Section 202. Form of Trustee's Certificate of
Authentication......................................... 18
Section 203. Securities in Global Form................................ 18
ARTICLE THREE
The Securities
Section 301. Amount Unlimited; Issuable in Series..................... 19
Section 302. Currency; Denominations.................................. 23
Section 303. Execution, Authentication, Delivery and
Dating................................................. 23
Section 304. Temporary Securities..................................... 25
Section 305. Registration, Transfer and Exchange...................... 26
Section 306. Mutilated, Destroyed, Lost and Stolen
Securities............................................. 30
Section 307. Payment of Interest and Certain Additional
Amounts; Rights to Interest and Certain
Additional Amounts Preserved........................... 32
Section 308. Persons Deemed Owners.................................... 34
<PAGE>
Page
----
Section 309. Cancellation............................................. 35
Section 310. Computation of Interest.................................. 35
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge............................... 35
Section 402. Satisfaction, Discharge and Defeasance................... 37
Section 403. Application of Trust Money............................... 40
ARTICLE FIVE
Remedies
Section 501. Events of Default........................................ 40
Section 502. Acceleration of Maturity; Rescission and
Annulment.............................................. 42
Section 503. Collection of Indebtedness and Suits for
Enforcement by Trustee................................. 43
Section 504. Trustee May File Proofs of Claim......................... 44
Section 505. Trustee May Enforce Claims without Possession
of Securities or Coupons............................... 45
Section 506. Application of Money Collected........................... 45
Section 507. Limitation on Suits...................................... 46
Section 508. Unconditional Right of Holders to Receive
Principal and any Premium, Interest and
Additional Amounts..................................... 47
Section 509. Restoration of Rights and Remedies....................... 47
Section 510. Rights and Remedies Cumulative........................... 47
Section 511. Delay or Omission Not Waiver............................. 47
Section 512. Control by Holders of Securities......................... 48
Section 513. Waiver of Past Defaults.................................. 48
Section 514. Undertaking for Costs.................................... 49
ARTICLE SIX
The Trustee
Section 601. Certain Rights of Trustee................................ 49
Section 602. Not Responsible for Recitals or Issuance of
Securities............................................. 51
Section 603. May Hold Securities...................................... 51
Section 604. Money Held in Trust...................................... 51
Section 605. Compensation and Reimbursement........................... 51
Section 606. Corporate Trustee Required; Eligibility.................. 52
Section 607. Resignation and Removal; Appointment of
<PAGE>
Page
----
Successor.............................................. 52
Section 608. Acceptance of Appointment by Successor................... 54
Section 609. Merger, Conversion, Consolidation or
Succession to Business................................. 56
Section 610. Appointment of Authenticating Agent...................... 56
Section 611. Notice of Defaults....................................... 58
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and
Addresses of Holders................................... 59
Section 702. Preservation of Information; Communications
to Holders............................................. 59
Section 703. Reports by Trustee....................................... 60
Section 704. Reports by Company....................................... 60
ARTICLE EIGHT
Consolidation, Merger and Sales
Section 801. Company May Consolidate, Etc., Only on
Certain Terms.......................................... 61
Section 802. Successor Person Substituted for Company................. 62
ARTICLE NINE
Supplemental Indentures
Section 901. Supplemental Indentures without Consent of
Holders.................................................. 62
Section 902. Supplemental Indentures with Consent of
Holders................................................ 64
Section 903. Execution of Supplemental Indentures..................... 65
Section 904. Effect of Supplemental Indentures........................ 65
Section 905. Reference in Securities to Supplemental
Indentures............................................. 66
<PAGE>
ARTICLE TEN
Covenants
Page
----
Section 1001. Payment of Principal and any Premium,
Interest and Additional Amounts........................ 66
Section 1002. Maintenance of Office or Agency.......................... 66
Section 1003. Money for Securities Payments to Be Held in
Trust.................................................. 68
Section 1004. Additional Amounts....................................... 69
Section 1005. Limitation on Liens...................................... 70
Section 1006. Company Statement as to Compliance; Notice of
Certain Defaults....................................... 72
Section 1007. Waiver of Certain Covenants.............................. 72
ARTICLE ELEVEN
Redemption of Securities
Section 1101. Applicability of Article................................. 73
Section 1102. Election to Redeem; Notice to Trustee.................... 73
Section 1103. Selection by Trustee of Securities to be
Redeemed............................................... 73
Section 1104. Notice of Redemption..................................... 74
Section 1105. Deposit of Redemption Price.............................. 75
Section 1106. Securities Payable on Redemption Date.................... 76
Section 1107. Securities Redeemed in Part.............................. 77
ARTICLE TWELVE
Sinking Funds
Section 1201. Applicability of Article................................. 77
Section 1202. Satisfaction of Sinking Fund Payments with
Securities............................................. 78
Section 1203. Redemption of Securities for Sinking Fund................ 78
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article................................. 79
<PAGE>
ARTICLE FOURTEEN
Securities in Foreign Currencies
Page
----
Section 1401. Applicability of Article................................. 80
ARTICLE FIFTEEN
Meetings of Holders of Securities
Section 1501. Purposes for Which Meetings May Be Called................ 80
Section 1502. Call, Notice and Place of Meetings....................... 80
Section 1503. Persons Entitled to Vote at Meetings..................... 81
Section 1504. Quorum; Action........................................... 81
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings................................ 82
Section 1506. Counting Votes and Recording Action of
Meetings............................................... 83
Testimonium............................................................. 88
Signature and Seals..................................................... 88
<PAGE>
INDENTURE, dated as of August 1, 1991 (the "Indenture"), between Toyota
Motor Credit Corporation, a corporation duly organized and existing under the
laws of the State of California (hereinafter called the "Company"), having its
principal executive office located at 19001 South Western Avenue, Torrance,
California 90509, and The Chase Manhattan Bank, N.A., a national banking
association duly organized and existing under the laws of the United States of
America (hereinafter called the "Trustee"), having its Corporate Trust Office
located at One New York Plaza, New York, New York 10081.
Recitals
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
(hereinafter called the "Securities"), unlimited as to principal amount, to
bear such rates of interest, to mature at such time or times, to be issued in
one or more series and to have such other provisions as shall be fixed as
hereinafter provided. All things necessary to make this Indenture a valid
agreement of the Company, in accordance with its terms, have been done.
This Indenture is subject to the provisions of the Trust Indenture Act
of 1939, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder that are required to be part of
this Indenture and, to the extent applicable, shall be governed by such
provisions.
Now, Therefore, This Indenture Witnesseth:
For and in consideration of the premises and the purchase of the
Securities by the Holders (as herein defined) thereof, it is mutually
covenanted and agreed, for the equal and proportionate benefit of all Holders
of the Securities and any Coupons (as herein defined) as follows:
1
<PAGE>
ARTICLE ONE
Definitions and Other Provisions of General Application
Section 101. DEFINITIONS.
Except as otherwise expressly provided in or pursuant to this Indenture
or unless the context otherwise requires, for all purposes of this Indenture:
(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
and, except as otherwise herein expressly provided, 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 at the date of such computation;
(4) the words "herein", "hereof", "hereto" 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; and
(5) the word "or" is always used inclusively (for example, the phrase
"A or B" means "A or B or both", not "either A or B but not both").
Certain terms used principally in certain Articles hereof are defined in
those Articles.
"Act", when used with respect to any Holders, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
hereby or by any Security, under circumstances specified herein or therein, to
be paid by the Company in respect of certain taxes imposed on Holders
specified therein 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.
2
<PAGE>
For the purposes of this definition, "control", when used with respect to any
specified Person, means the power to direct the management and policies of
such Person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have the meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 610 to act on behalf of the Trustee to authenticate
Securities of one or more series.
"Authorized Newspaper" means a newspaper, in an official language of the
place of publication or in the English language, customarily published on each
day that is a Business Day in the place of publication, whether or not
published on days that are Legal Holidays in the place of publication, and of
general circulation in each place in connection with which the term is used or
in the financial community of each such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting
the foregoing requirements and in each case on any day that is a Business Day
in the place of publication.
"Bearer Security" means any Security in the form established pursuant to
Section 201 which is payable to bearer.
"Board of Directors" means the board of directors of the Company or any
committee of that board duly authorized to act generally or in any particular
respect for the Company hereunder.
"Board Resolution" means a copy of one or more resolutions, certified by
the Secretary or an Assistant Secretary of the Company to have been duly
adopted by the Board of Directors and to be in full force and effect on the
date of such certification, delivered to the Trustee.
"Business Day", with respect to any Place of Payment or other location,
means each Monday, Tuesday, Wednesday, Thursday and Friday that is not a Legal
Holiday in such Place of Payment or other location.
"CEDEL S.A." means Centrale de Livraison de Valeurs Mobilieres S.A.
"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 Indenture 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.
3
<PAGE>
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall
mean such successor Person, and any other obligor upon the Securities.
"Company Request" and "Company Order" mean, respectively, a written
request or order, as the case may be, signed in the name of the Company by the
Chairman of the Board of Directors, a Vice Chairman, the President or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Secretary or an
Assistant Secretary, of the Company, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (i) all current liabilities and (ii) all goodwill, trade names,
trademarks, patents, unamortized debt discount and expense and other like
intangibles of the Company and its consolidated subsidiaries, all as set forth
on the most recent balance sheet of the Company and its consolidated
subsidiaries prepared in accordance with generally accepted accounting
principles.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be
administered, which office at the date of original execution of this Indenture
is located at the address specified in the first paragraph of this instrument.
"Corporation" includes corporations and, except for purposes of Article
Eight, associations, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" or "Money", with respect to any payment, deposit or other
transfer in respect of the principal of or any premium or interest on or any
Additional Amounts with respect to any Security, means the unit or units of
legal tender for the payment of public and private debts (or any composite
thereof) in which such payment, deposit or other transfer is required to be
made by or pursuant to the terms hereof and, with respect to any other
payment, deposit or transfer pursuant to or contemplated by the terms hereof,
means Dollars.
"Currency Indexed Security" means any Security with the amount of
principal payments determined by reference to an index Currency.
"Defaulted Interest" has the meaning specified in Section 307.
4
<PAGE>
"Dollars" or "$" means a dollar or other equivalent unit of legal tender
for payment of public or private debts in the United States of America.
"Euroclear" means the operator of the Euroclear System.
"Event of Default" has the meaning specified in Section 501.
"Government Obligations", with respect to any Security, means (i) direct
obligations of the government or governments which issued the Currency in
which the principal of or any premium or interest on such Security or any
Additional Amounts in respect thereof shall be payable, in each case where the
payment or payments thereunder are supported by the full faith and credit of
such government or governments or (ii) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of such government or
governments, in each case where the payment or payments thereunder are
unconditionally guaranteed as a full faith and credit obligation by such
government or governments, and which, in the case of (i) or (ii) above, are
not callable or redeemable at the option of the issuer or issuers thereof, and
shall also include a depository receipt issued by a bank or trust company as
custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of or other amount with respect to any such
Government Obligation held by such custodian for the account of the holder of
a depository receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder
of such depository receipt from any amount received by the custodian in
respect of the Government Obligation or the specific payment of interest on or
principal of or other amount with respect to the Government Obligation
evidenced by such depository receipt.
"Holder", in the case of any Registered Security, means the Person in
whose name such Security is registered in the Security Register and, in the
case of any Bearer Security, means the bearer thereof and, in the case of any
Coupon, means the bearer thereof.
"Indenture" means this instrument 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, with respect to any
Security, by the terms and provisions of such Security and any Coupon
appertaining thereto established pursuant to Section 301 (as such terms and
provisions may be amended pursuant to the applicable provisions hereof).
"Independent Public Accountants" means accountants or a firm of
accountants that, with respect to the Company and any other
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obligor under the Securities or the Coupons, are independent public
accountants within the meaning of the Securities Act of 1933, as amended, and
the rules and regulations promulgated by the Commission thereunder, who may be
the independent public accountants regularly retained by the Company or who
may be other independent public accountants. Such accountants or firm shall
be entitled to rely upon any Opinion of Counsel as to the interpretation of
any legal matters relating to the Indenture or certificates required to be
provided hereunder.
"Indexed Security" means a Security the terms of which provide that the
principal amount thereof payable at Stated Maturity may be more or less than
the principal face amount thereof at original issuance.
"Interest", with respect to any Original Issue Discount Security which
by its terms bears interest only after Maturity, means interest payable after
Maturity.
"Interest Payment Date", with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
"Legal Holiday", with respect to any Place of Payment or other location,
means a Saturday, a Sunday or a day on which banking institutions or trust
companies in such Place of Payment or other location are not authorized or
obligated to be open.
"Maturity", 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 provided in or pursuant to this Indenture, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment or otherwise, and includes any Redemption Date.
"Office or Agency", with respect to any Securities, means an office or
agency of the Company maintained or designated in a Place of Payment for such
Securities pursuant to Section 1002 or any other office or agency of the
Company maintained or designated for such Securities pursuant to Section 1002
or, to the extent designated or required by Section 1002 in lieu of such
office or agency, the Corporate Trust Office of the Trustee.
"Officer's Certificate" means a certificate signed by the Chairman, the
Vice Chairman, the President, a Vice President or the Treasurer of the
Company, that complies with the requirements of Section 314(e) of the Trust
Indenture Act and is 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
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who shall be reasonably acceptable to the Trustee, that complies with the
requirements of Section 314(e) of the Trust Indenture Act.
"Original Issue Discount Security" means a Security which provides for
declaration of an amount less than the principal face amount thereof to be due
and payable upon acceleration pursuant to Section 502.
"Outstanding", when used with respect to any Securities, means, as of
the date of determination, all such Securities theretofore authenticated and
delivered under this Indenture, except:
(i) any such Security theretofore cancelled by the Trustee or the
Security Registrar or delivered to the Trustee or the Security
Registrar for cancellation;
(ii) any such Security or portions thereof for whose payment at the
Maturity thereof Money in the necessary amount has been
theretofore deposited pursuant hereto with the Trustee or any
Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as
its own Paying Agent) for the Holders of such Securities and any
Coupons appertaining thereto, provided that, if such Securities
are to be redeemed, notice of such redemption has been duly given
pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made;
(iii) any such Security with respect to which the Company has effected
defeasance pursuant to Section 402; and
(iv) any such Security which has 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, unless
there shall have been presented to the Trustee proof satisfactory
to it that such Security is held by a bona fide purchaser in whose
hands such Security is a valid obligation of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present
at a meeting of Holders of Securities for quorum purposes, (i) the principal
amount of an
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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 pursuant to the
terms of such Original Issue Discount Security would be declared (or shall
have been declared to be) due and payable upon a declaration of acceleration
thereof pursuant to Section 502 at the time of such determination, and (ii)
the principal amount of any Security denominated other than in Dollars that
may be counted in making such determination and that shall be deemed
Outstanding for such purpose shall be equal to the Dollar equivalent,
determined by the Company as of a record date or date specified by the
Company, of the principal amount (or, in the case of an Original Issue
Discount Security, the Dollar equivalent as of such date of original issuance
of the amount determined as provided in clause (i) above) of such Security,
and (iii) the principal amount of any Indexed Security that may be counted in
making such determination and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security
(other than a Currency Indexed Security) at original issuance, unless
otherwise provided in or pursuant to this Indenture, and (iv) Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of
the Company or such other obligor, shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be
protected in making any such determination or 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 shall have been pledged in good faith may be regarded as
Outstanding if the pledgee establishes to the satisfaction of the Trustee (A)
the pledgee's right so to act with respect to such Securities and (B) that the
pledgee is not the Company or any other obligor upon the Securities or any
Coupons appertaining thereto or any Affiliate of the Company or such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of, or any premium or interest on, or any Additional Amounts with
respect to any Security or any Coupon on behalf of the Company.
"Person" means any individual, Corporation, partnership, joint venture,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment", with respect to any Security, means the place or
places where the principal of, or any premium or interest on, or any
Additional Amounts with respect to such Security is payable as provided in or
pursuant to this Indenture.
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"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 lost, destroyed, mutilated or stolen Security or any Security to
which a mutilated, destroyed, lost or stolen Coupon appertains shall be deemed
to evidence the same debt as the lost, destroyed, mutilated or stolen Security
or the Security to which a mutilated, destroyed, lost or stolen Coupon
appertains.
"Redemption Date", with respect to any Security or portion thereof to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", with respect to any Security or portion thereof to
be redeemed, means the price at which it is to be redeemed as determined by or
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 Registered
Security on any Interest Payment Date therefor means the date, if any,
specified in or pursuant to this Indenture as the "Regular Record Date".
"Responsible Officer" means any officer of the Trustee in its Corporate
Trust Office and also means, with respect to a particular corporate trust
matter, any other officer of the Trustee to whom such matter is referred
because of his knowledge of and familiarity with the particular subject.
"Security" or "Securities" means any Security or Securities, as the case
may be, authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under
this Indenture, "Securities," with respect to any such Person, shall mean
Securities authenticated and delivered under this Indenture, exclusive,
however, of Securities of any series as to which such Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest on any
Registered Security means a date fixed by the Trustee pursuant to Section 307.
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"Stated Maturity", with respect to any Security or any installment of
principal thereof or interest thereon or any Additional Amounts with respect
thereto, means the date established by or pursuant to this Indenture as the
fixed date on which the principal of such Security or such installment of
principal or interest is or such Additional Amounts are due and payable.
"Subsidiary" means any Corporation of which at the time of determination
the Company or one or more Subsidiaries owns or controls directly or
indirectly more than 50% of the shares of Voting Stock.
"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.
"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
provisions of this Indenture, and thereafter "Trustee" shall mean each Person
who is then a Trustee hereunder; provided, however, that if at any time there
is more than one such Person, "Trustee" shall mean each such Person and as
used with respect to the Securities of any series shall mean the Trustee with
respect to the Securities of such series.
"United States", except as otherwise provided herein or in any Security,
means the United States of America (including the states thereof and the
District of Columbia), its territories and possessions and other areas subject
to its jurisdiction.
"United States Alien", except as otherwise provided in or pursuant to
this Indenture, 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. Depositary or Depositary by the Company pursuant to this
Indenture, which Person, if required by any applicable law, regulation or
exchange
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requirement, must be 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.
"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".
"Voting Stock" means stock of a Corporation of the class or classes
having general voting power under ordinary circumstances to elect at least a
majority of the board of directors, managers or trustees of such Corporation,
provided that, for the purposes hereof, stock which carries only the right to
vote conditionally on the happening of an event shall not be considered voting
stock whether or not such event shall have happened.
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 Officer's 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 or any of them is specifically required by any
provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Each such
Officer's Certificate and Opinion of Counsel shall comply with Section 314(e)
of the Trust Indenture Act.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion 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.
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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 of
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 or any Security, they may, but need not, be
consolidated and form one instrument.
Section 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by or pursuant to 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 an agent duly appointed in writing. If, but only if, Securities of a
series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided in or pursuant to
this Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
Fifteen, or a combination of such instruments and any such record. Except as
herein otherwise expressly provided, such action shall become effective when
such instrument or instruments or record or both are delivered to the Trustee
and, where it is hereby expressly required, to the Company. Such instrument
or instruments and any such record (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the
Holders signing such instrument or instruments or so voting at any such
meeting. Proof of execution of any such instrument or of a writing appointing
any such agent, or of the holding by any Person of a Security, shall be
sufficient for any purpose of this Indenture and (subject to Section 315 of
the Trust Indenture Act) conclusive in favor of the Trustee and the Company
and any agent
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of the Trustee or the Company, if made in the manner provided in this Section.
The record of any meeting of Holders of Securities shall be proved in the
manner provided in Section 1506.
Without limiting the generality of this Section, unless otherwise
provided in or pursuant to this Indenture, a Holder, including a U.S.
Depositary that is a Holder of a global Security, may make, give or take, by a
proxy, or proxies, duly appointed in writing, any request, demand,
authorization, direction, notice, consent, waiver or other action provided in
or pursuant to this Indenture to be made, given or taken by Holders, and a
U.S. Depositary that is a Holder of a global Security may provide for the
beneficial owners of interests in any such global Security to direct such U.S.
Depositary in taking such action through such U.S. Depositary's standing
instructions and customary practices. The U.S. Depositary shall report only
one result of its solicitation of proxies to the Trustee.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved in any reasonable manner which the Trustee
deems sufficient and in accordance with such reasonable rules as the Trustee
may determine; and the Trustee may in any instance require further proof with
respect to any of the matters referred to in this Section.
(c) The ownership, principal amount and serial numbers of Registered
Securities held by any Person, and the date of the commencement and the date
of the termination of holding the same, shall be proved by the Security
Register.
(d) The ownership, principal amount and serial numbers of Bearer
Securities held by any Person, and the date of the commencement and the date
of the termination 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 reasonably acceptable to the
Company, wherever situated, if such certificate shall be deemed by the Company
and the Trustee to be satisfactory, showing that at the date therein mentioned
such Person had on deposit with such depositary, or exhibited to it, the
Bearer Securities therein described; or such facts may be proved by the
certificate or affidavit of the Person holding such Bearer Securities, if such
certificate or affidavit is deemed by the Trustee to be satisfactory. The
Trustee and the Company may assume that such ownership of any Bearer Security
continues until (1) another certificate or affidavit bearing a later date
issued in respect of the same Bearer Security is produced, or (2) such Bearer
Security is produced to the Trustee by some other Person, or (3) such Bearer
Security is surrendered in exchange for a Registered Security, or (4) such
Bearer Security is no longer Outstanding. The ownership, principal amount and
serial numbers of Bearer
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Securities held by the Person so executing such instrument or writing and the
date of the commencement and the date of the termination of holding the same
may also be proved in any other manner which the Company and the Trustee deem
sufficient.
(e) 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 shall, 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. 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 purpose 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 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.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other action by 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 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, waiver
or Act of Holders or other document provided or permitted by this Indenture to
be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or 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, or
(2) the Company by the Trustee or any Holder shall be sufficient for
every purpose hereunder (unless otherwise herein expressly provided) if in
writing and mailed,
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first-class mail postage prepaid, to the Company addressed to the attention
of its Assistant Treasurer at the address of its principal office specified
in the first paragraph of this instrument or at any other address
previously furnished in writing to the Trustee by the Company.
Section 106. Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided in or pursuant to 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 mail 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 any, if published in an Authorized Newspaper in The City of
New York and, if such Securities are then listed on any stock exchange
outside the United States, in an Authorized Newspaper in such city as the
Company shall advise the Trustee that such stock 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 any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice so
mailed, to any particular Holder 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 to Holders of Bearer Securities
given as provided herein. Any notice which is mailed in the manner herein
provided shall be conclusively presumed to have been duly given or provided.
In case 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 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 notification to Holders of Bearer Securities as
shall be given with the approval of the Trustee shall constitute sufficient
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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.
Any request, demand, authorization, direction, notice, consent, election
or waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company so elects, 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 any duties
under any required provision of the Trust Indenture Act imposed hereon by
Section 318(c) thereof, 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, any Security or any Coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
Section 112. Benefits of Indenture.
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Nothing in this Indenture, any Security or any Coupon, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their respective successors hereunder and the
Holders of Securities or Coupons, any benefit or any legal or equitable right,
remedy or claim under this Indenture.
Section 113. Governing Law.
This Indenture, the Securities and any Coupons shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made or instruments entered into and, in each case, performed in
said state.
Section 114. Legal Holidays.
In any case where any Interest Payment Date, Stated Maturity or Maturity
of any Security shall be a Legal Holiday in The City of New York or at any
Place of Payment, then (notwithstanding any other provision of this Indenture,
any Security or any Coupon other than a provision in this Indenture, any
Security or Coupon that specifically states that such provision shall apply in
lieu of this Section) payment need not be made at such Place of Payment on
such date, but may be made on the next succeeding day that is a Business Day
in The City of New York and at such Place of Payment with the same force and
effect as if made on the Interest Payment Date or at the Stated Maturity or
Maturity, and no interest shall accrue on the amount payable on such date or
at such time for the period from and after such Interest Payment Date or
Stated Maturity or Maturity, as the case may be.
ARTICLE TWO
Securities Forms
Section 201. Forms Generally.
Each Registered Security, Bearer Security, Coupon and temporary global
Security issued pursuant to this Indenture shall be in the form established by
or pursuant to a Board Resolution or in one or more indentures supplemental
hereto, shall have such appropriate insertions, omissions, substitutions and
other variations as are required or permitted by or pursuant to this Indenture
or any indenture supplemental hereto and may have such letters, numbers or
other marks of identification and such legends or endorsements placed thereon
as may, consistently herewith, be determined by the officers executing such
Security or Coupon as evidenced by their execution of such Security or Coupon.
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Unless otherwise provided in or pursuant to this Indenture, the
Securities shall be issuable in registered form without Coupons and shall not
be issuable upon the exercise of warrants.
Definitive Securities and definitive Coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any
other manner, all as determined by the officers of the Company executing such
Securities or Coupons, as evidenced by their execution of such Securities or
Coupons.
Section 202. Form of Trustee's Certificate of Authentication.
Subject to Section 610, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK, N.A.,
as Trustee
By
-----------------------------------------------
Authorized Officer
Section 203. Securities in Global Form.
If Securities of a series shall be issuable in global form, as specified
in and contemplated by Section 301, any such Security or Securities may
provide that it or they 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
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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.
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.
With respect to any Securities to be authenticated and delivered
hereunder, there shall be established in or pursuant to a Board Resolution and
set forth in an Officer's Certificate, or established in one or more
indentures supplemental hereto,
(1) the title of such Securities and the series in which such
Securities shall be included;
(2) any limit upon the aggregate principal amount of the Securities of
such title or the Securities of such series which may be authenticated and
delivered under this Indenture (except for Securities authenticated and
delivered upon registration or transfer of, or in exchange for, or in lieu of,
other Securities of such series pursuant to Section 304, 305, 306 or 1107 or
the terms of such Securities);
(3) if such Securities are to be issuable as Registered Securities,
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) if any of 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
exchange may occur, if other than in the manner specified in Section 305, and
(ii)
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the name of the Depositary or the U.S. Depositary, as the case may be, with
respect to any global Security;
(5) if any of such Securities are to be issuable as Bearer Securities
or in global form, the date as of which any such Bearer Security or global
Security shall be dated (if other than the date of original issuance of the
first of such Securities to be issued);
(6) if any of such Securities are to be issuable as Bearer Securities,
whether interest in respect of any portion of a temporary Bearer Security in
global form payable in respect of an Interest Payment Date therefor prior to
the exchange, if any, of such temporary Bearer Security for definitive
Securities 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;
(7) 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;
(8) 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, 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, and the basis upon which interest shall be calculated if other than
that of a 360-day year of twelve 30-day months;
(9) if in addition to or other than the Borough of Manhattan, The City
of New York, the place or places where the principal of, any premium and
interest on or any Additional Amounts with respect to such Securities 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;
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(10) whether any of such Securities are to be redeemable at the option
of the Company and, if so, the period or periods within which, the price or
prices at which and the other terms and conditions upon which such Securities
may be redeemed, in whole or in part, at the option of the Company;
(11) whether the Company is obligated to redeem or purchase any of such
Securities pursuant to any sinking fund or at the option of any Holder thereof
and, if so, the period or periods within which, the price or prices at which
and the other terms and conditions upon which such Securities 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;
(12) the denominations in which any of such Securities that are
Registered Securities shall be issuable if other than denominations of $1,000
and any integral multiple thereof, and the denominations in which any of such
Securities that are Bearer Securities shall be issuable if other than the
denomination of $5,000;
(13) if other than the principal amount thereof, the portion of the
principal amount of any of such Securities that shall be payable upon
declaration of acceleration of the Maturity thereof pursuant to Section 502 or
the method by which such portion is to be determined;
(14) if other than Dollars, the Currency in which payment of the
principal of, any premium or interest on or any Additional Amounts with
respect to any of such Securities shall be payable;
(15) if the principal of, any premium or interest on or any Additional
Amounts with respect to any of such Securities are to be payable, at the
election of the Company or a Holder thereof or otherwise, in a Currency other
than that in which such Securities are stated to be payable, the period or
periods within which, and the other 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 may be based, without limitation,
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on one or more Currencies, commodities securities, equity indices or other
indices), and, if so, the terms and conditions upon which and the manner in
which such amounts shall be determined and paid or payable;
(17) any deletions from, modifications of or additions to the Events of
Default or covenants of the Company with respect to any of such Securities,
whether or not such Events of Default or covenants are consistent with the
Events of Default or covenants set forth herein;
(18) the applicability, if any, of Section 402 to any of such
Securities and any provisions in modification of, in addition to or in lieu of
any of the provisions of Section 402;
(19) if any of such Securities are to be issuable upon the exercise of
warrants, this shall be so established and (if established by Board
Resolution) so set forth, as well as the time, manner and place for such
Securities to be authenticated and delivered;
(20) if any of 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;
(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 such Securities which the Company may establish
in accordance with Section 901.
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, if any, the method or methods, if any, by which such rate or rates
are to be determined, and Maturity, 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 Officer's Certificate or
in any indenture or indentures supplemental hereto pertaining to such series
of Securities. 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 issuances of additional Securities of such series or to establish
additional terms of such series of Securities.
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If any of the terms of the Securities of any series shall be established
by action taken by or pursuant to a Board Resolution, the Board Resolution
shall be delivered to the Trustee at or prior to the delivery of the Officer's
Certificate setting forth the terms of such series.
Section 302. Currency; Denominations.
Unless otherwise provided in or pursuant to this Indenture, the
principal of, any premium and interest on and any Additional Amounts with
respect to the Securities shall be payable in Dollars. Unless otherwise
provided in or pursuant to this Indenture, Registered Securities denominated
in Dollars shall be issuable in registered form without Coupons in
denominations of $1,000 and any integral multiple thereof, and Bearer
Securities denominated in Dollars shall be issuable in the denomination of
$5,000. Securities not denominated in Dollars shall be issuable in such
denominations as are established with respect to such Securities as provided
in or pursuant to this Indenture.
Section 303. Execution, Authentication, Delivery and Dating.
Securities shall be executed on behalf of the Company by its Chairman of
the Board, one of its Vice Chairmen, its President, its Treasurer or one of
its Vice Presidents under its corporate seal reproduced thereon. Coupons
shall be executed on behalf of the Company by its President, its Treasurer or
any one of its Vice Presidents or Assistant Treasurers. The signature of any
of these officers on the Securities or any Coupons appertaining thereto may be
manual or facsimile.
Securities and any Coupons appertaining thereto 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, together with any Coupons
appertaining thereto, executed by the Company, to the Trustee for
authentication and, provided that the Board Resolution and Officer's
Certificate or supplemental indenture or indentures with respect to such
Securities referred to in Section 301 and a Company Order for the
authentication and delivery of such Securities has been delivered to the
Trustee, the Trustee in accordance with the Company Order and subject to the
provisions hereof and of such Securities shall authenticate and deliver such
Securities. In authenticating such Securities,
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and accepting the additional responsibilities under this Indenture in relation
to such Securities and any Coupons appertaining thereto, the Trustee shall be
entitled to receive, and (subject to Sections 315(a) through 315(d) of the
Trust Indenture Act) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating to the effect that:
(a) the form or forms and terms of such Securities and Coupons, if
any, have been established in conformity with the provisions of this
Indenture;
(b) all conditions precedent to the authentication and delivery of
such Securities and Coupons, if any, appertaining thereto, have been
complied with and that such Securities, and Coupons, when completed by
appropriate insertion and executed and delivered by the Company to the
Trustee for authentication pursuant to this Indenture, and 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 legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or similar
laws affecting creditors' rights generally, and will entitle the Holders
thereof to the benefits of this Indenture; such Opinion of Counsel may
state, however, that enforceability of the Securities and Coupons, if any,
is subject to the effect of general principals 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 considered in a proceeding in
equity or at law;
(c) 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
(d) as to such other matters as the Trustee may reasonably
request; and
(ii) an Officer's Certificate stating that, all conditions precedent to
the authentication and delivery of such Securities and Coupons, if any,
appertaining thereto, have been complied with and to the best knowledge of the
Persons executing such certificate, no event which is, or after notice or
lapse of time would become, an Event of
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Default with respect to any of the Securities has occurred and is
continuing.
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 or an Officer's
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.
The Trustee shall not be required to authenticate or to cause an
Authenticating Agent to authenticate any 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 or if the Trustee,
being advised by counsel, determines that such action may not lawfully be
taken.
Each Registered Security shall be dated the date of its authentication.
Each Bearer Security and any temporary Bearer Security in global form shall be
dated as of the date specified in or pursuant to this Indenture.
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 in Section 202 or 610 executed by or on behalf of the
Trustee by the manual signature of one of its authorized officers or by the
Authenticating Agent. Such certificate of authentication upon any Security
shall be conclusive evidence, and the only evidence, that such Security has
been duly authenticated and delivered hereunder. Except as permitted by
Section 306 or 307, the Trustee shall not authenticate and deliver any Bearer
Security unless all Coupons appertaining thereto then matured have been
detached and cancelled.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute and deliver to the Trustee and, upon Company Order, the Trustee shall
authenticate and deliver, in the manner provided in Section 303, temporary
Securities in lieu thereof which are printed, lithographed, typewritten,
mimeographed or
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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 or pursuant to this Indenture, in bearer form with
one or more Coupons or without Coupons and with such appropriate insertions,
omissions, substitutions and other variations as the officers of the Company
executing such Securities may determine, as conclusively evidenced by their
execution of such Securities. Such temporary Securities may be in global
form.
Except in the case of temporary Securities in global form, which shall
be exchanged in accordance with the provisions thereof, if temporary
Securities are issued, the Company shall cause definitive Securities to be
prepared without unreasonable delay. After the preparation of definitive
Securities of the same series and containing terms and provisions that are
identical to those of any temporary Securities, such temporary Securities
shall be exchangeable for such definitive Securities upon surrender of such
temporary Securities at an Office or Agency for such Securities, without
charge to any Holder thereof. Upon surrender for cancellation of any one or
more temporary Securities (accompanied by any unmatured Coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of authorized denominations of the same series and containing identical terms
and provisions; provided, however, that no definitive Bearer Security, except
as provided in or pursuant to this Indenture, shall be delivered in exchange
for a temporary Registered Security; and provided, further, that a definitive
Bearer Security shall be delivered in exchange for a temporary Bearer Security
only in compliance with the conditions set forth in or pursuant to this
Indenture. Unless otherwise provided in or pursuant to this Indenture with
respect to a temporary global Security, 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, Transfer and Exchange.
With respect to the Registered Securities of each series, if any, the
Company shall cause to be kept a register (each such register being herein
sometimes referred to as the "Security Register") at an Office or Agency for
such series in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of the Registered
Securities of such series and of transfers of the Registered Securities of
such series. In the event that the Trustee shall not be the Security
Registrar, it shall have the right to examine the Security Register at all
reasonable times. The Trustee is hereby initially appointed as Security
Registrar for each series
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of Securities. In the event that the Trustee shall cease to be Security
Registrar with respect to a series of Securities, it shall have the right to
examine the Security Register for such series at all reasonable times.
Upon surrender for registration of transfer of any Registered Security
of any series at any Office or Agency 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 denominated as authorized in or pursuant to this Indenture, of
a like aggregate principal amount bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the option of the Holder, Registered Securities of any series may be
exchanged for other Registered Securities of the same series containing
identical terms and provisions, in any authorized denominations, and of a like
aggregate principal amount, upon surrender of the Securities to be exchanged
at any Office or Agency for such series. Whenever any Registered Securities
are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Registered Securities which the Holder
making the exchange is entitled to receive.
If provided in or pursuant to this Indenture, with respect to Securities
of any series, at the option of the Holder, Bearer Securities of such series
may be exchanged for Registered Securities of such series containing identical
terms, denominated as authorized in or pursuant to this Indenture and in the
same aggregate principal amount, upon surrender of the Bearer Securities to be
exchanged at any Office or Agency for such series, 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 is furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Bearer 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 for such
series located outside the United
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States. Notwithstanding the foregoing, in case a Bearer Security of any
series is surrendered at any such Office or Agency for such series in exchange
for a Registered Security of such series and like tenor after the close of
business at such Office or Agency on (i) any Regular Record Date and before
the opening of business at such Office or Agency on the relevant Interest
Payment Date, or (ii) any Special Record Date and before the opening of
business at such Office or Agency on the related 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, shall 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 shall be payable only to the Holder of such Coupon when
due in accordance with the provisions of this Indenture.
If provided in or pursuant to this Indenture with respect to 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 in or pursuant to this Indenture with respect to such
series.
Whenever any Securities are surrendered for exchange as contemplated by
the immediately preceding two paragraphs, 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 depository 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 of that series. 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
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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. 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 Officer's 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 Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at the
opening of business 15 days before any selection of Securities of the same
series and containing identical terms 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 U.S. Depositary, as the case may be, or such other
Depositary or 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 for such 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 Defaulted 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
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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 entitling the Holders thereof 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 or redemption shall (if so required by the Company or
the Security Registrar for such Security) be duly endorsed, or be accompanied
by a written instrument of transfer in form satisfactory to the Company and
the Security Registrar for such Security duly executed by the Holder thereof
or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange, or redemption 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 or 1107 not involving
any transfer.
Except as otherwise provided in or pursuant to this Indenture, the
Company shall not be required (i) to issue, register the transfer of or
exchange any Securities during a period beginning at the opening of business
15 days before the day of the selection for redemption of Securities of like
tenor and the same series under Section 1103 and ending at the close of
business on the day of such selection, or (ii) to register the transfer of or
exchange any Registered Security so selected for redemption in whole or in
part, except in the case of any Security to be redeemed in part, the portion
thereof not to be redeemed, or (iii) to exchange any Bearer Security so
selected for redemption except, to the extent provided with respect to such
Bearer Security, that such Bearer Security may be exchanged for a Registered
Security of like tenor and the same series, provided that such Registered
Security shall be immediately surrendered for redemption with written
instruction for payment consistent with the provisions of this Indenture or
(iv) to issue, register the transfer of or exchange any Security which, in
accordance with its terms, has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
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If any mutilated Security or a Security with a mutilated Coupon
appertaining to it is surrendered to the Trustee, subject to the provisions of
this Section, 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 of like principal amount and bearing a number not
contemporaneously outstanding, with Coupons appertaining thereto corresponding
to the Coupons, if any, appertaining to the surrendered Security.
If there be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or
Coupon, and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or Coupon has been
acquired by a bona fide purchaser, the Company shall execute and, upon the
Company's request the Trustee shall authenticate and deliver, in exchange for
or 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 of like 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.
Notwithstanding the foregoing provisions of this Section 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, with any Coupons appertaining thereto 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 a
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separate obligation of the Company, whether or not the destroyed, lost or
stolen Security and Coupons appertaining thereto or the destroyed, lost or
stolen Coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately
with any and all other Securities of such series and any Coupons, if any, duly
issued hereunder.
The provisions of this Section, as amended or supplemented pursuant to
this Indenture with respect to particular Securities or generally, shall be
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 and Certain Additional Amounts;
Rights to Interest and Certain Additional Amounts
Preserved.
Unless otherwise provided in or pursuant to this Indenture, any interest
on and any Additional Amounts with respect to any Registered Security which
shall be payable, and are punctually paid or duly provided for, on any
Interest Payment Date shall be paid to the Person in whose name such Security
(or one or more Predecessor Securities) is registered as of the close of
business on the Regular Record Date for such interest. Unless otherwise
provided in or pursuant to this Indenture, in case a Bearer Security is
surrendered in exchange for a Registered Security after the close of business
at an Office or Agency for such Security on any Regular Record Date therefor
and before the opening of business at such Office or Agency on the next
succeeding Interest Payment Date therefor, such Bearer Security shall be
surrendered without the Coupon relating to such Interest Payment Date and
interest shall not be payable on such Interest Payment Date in respect of the
Registered Security issued in exchange for such Bearer Security, but shall be
payable only to the Holder of such Coupon when due in accordance with the
provisions of this Indenture.
Unless otherwise provided in or pursuant to this Indenture, any interest
on and any Additional Amounts with respect to any Registered Security which
shall be payable, but shall not be punctually paid or duly provided for, on
any Interest Payment Date for such Registered Security (herein called
"Defaulted Interest") shall forthwith cease to be payable to the Holder
thereof on the relevant Regular Record Date by virtue of having been such
Holder; and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in clause (1) or (2) below:
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(1) The Company may elect to make payment of any Defaulted Interest to
the Person in whose name such Registered Security shall be 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 such Registered Security 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 on or prior to the date of the proposed payment, such Money when so
deposited to be held in trust for the benefit of the Person entitled to such
Defaulted Interest as in this clause provided. Thereupon, the Trustee shall
fix a Special Record Date for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee shall promptly
notify the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be mailed,
first-class mail postage prepaid, to the Holder of such Registered Security at
his address as it appears in the Security Register not less than 10 days prior
to such Special Record Date. The Trustee may, in its discretion, in the name
and at the expense of the Company cause a similar notice to be published at
least once in an Authorized Newspaper of general circulation in The City of
New York, but such publication shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been
mailed as aforesaid, such Defaulted Interest shall be paid to the Person in
whose name such Registered Security shall be 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 is surrendered at the
Office or Agency for such Security in exchange for a Registered Security 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 shall not be payable on such proposed date of payment in
respect of the Registered Security issued in exchange for such Bearer
Security, but shall be payable
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only to the Holder of such Coupon when due in accordance with the provisions
of this Indenture.
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities
exchange on which such Security 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 payment shall
be deemed practicable by the Trustee.
At the option of the Company, interest on Registered Securities may be
paid by mailing a check to the address of the person entitled thereto as such
address shall appear in the Security Register.
Subject to the foregoing provisions of this Section and Section 305,
each Security delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. 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 in
the Security Register as the owner of such Registered Security for the purpose
of receiving payment of principal of, any premium and (subject to Sections 305
and 307) interest on and any Additional Amounts with respect to such
Registered Security and for all other purposes whatsoever, whether or not any
payment with respect to such Registered Security shall be overdue, and neither
the Company, nor 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 or 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 any payment with respect to such Security or Coupon shall be overdue,
and neither the Company, nor the Trustee nor any agent of the Company or the
Trustee shall be affected by notice to the contrary.
No holder of any beneficial interest in any global Security held on its
behalf by a Depositary shall have any rights under this Indenture with respect
to such global Security, and such
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Depositary may be treated by the Company, the Trustee, and any agent of the
Company or the Trustee as the owner of such global Security for all purposes
whatsoever. None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a global Security or for maintaining, supervising or reviewing
any records relating to such beneficial ownership interests.
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 any such Securities and Coupons, as well as
Securities and Coupons surrendered directly to the Trustee for any such
purpose, shall be cancelled promptly 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 cancelled
promptly 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 or pursuant to this Indenture. All cancelled
Securities and Coupons held by the Trustee shall be destroyed by the Trustee,
unless by a Company Order, the Company directs their return to it.
Section 3110. Computation of Interest.
Except as otherwise provided in or pursuant to this Indenture, interest
on the Securities shall be computed on the basis of a 360-day year of twelve
30-day months.
ARTICLE FOUR
Satisfaction and Discharge
Section 401. Satisfaction and Discharge.
Upon the direction of the Company by a Company Order, this Indenture
shall cease to be of further effect with respect to any series of Securities
specified in such Company Order (except as to any surviving rights of
registration of transfer or exchange of Securities of such series herein
expressly provided for and any right to receive Additional Amounts) and any
Coupons appertaining thereto, and the Trustee, on receipt of a Company Order,
at the expense of the Company, shall execute proper
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instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(A) all Securities of such series theretofore authenticated and
delivered and all Coupons appertaining thereto (other than (i) Coupons
appertaining to Bearer Securities of such series surrendered in exchange
for Registered Securities of such series and maturing after such exchange
whose surrender is not required or has been waived as provided in Section
305, (ii) Securities and Coupons of such series which have been destroyed,
lost or stolen and which have been replaced or paid as provided in Section
306, (iii) Coupons appertaining to Securities of such series called for
redemption and maturing after the relevant Redemption Date whose surrender
has been waived as provided in Section 1106, and (iv) Securities and
Coupons of such series for whose payment Money has theretofore been
deposited in trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such trust, as provided
in Section 1003) have been delivered to the Trustee for cancellation; or
(B) all Securities of such series and, in the case of (i) or (ii)
below, any Coupons appertaining thereto not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to be
called for redemption within one year under arrangements satisfactory
to the Trustee for the giving of notice of redemption by the Trustee
in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust funds in
trust for such purpose, Money in an amount sufficient to pay and discharge
the entire indebtedness on such Securities and any Coupons appertaining
thereto not theretofore delivered to the Trustee for cancellation,
including the principal of, any premium and interest on, and any
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Additional Amounts with respect to such Securities and any Coupons
appertaining thereto, to the date of such deposit (in the case of
Securities which have become due and payable) or to the Maturity
thereof, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder with respect to the Outstanding Securities of such series and any
Coupons appertaining thereto and all other sums payable hereunder by the
Company; and
(3) the Company has delivered to the Trustee an Officer's
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture as to such series have been complied with.
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 such series as to which it is Trustee and if the other
conditions thereto are met.
Notwithstanding the satisfaction and discharge of this Indenture with
respect to any series of Securities, the obligations of the Company to the
Trustee under Section 605 and, if Money shall have been deposited with the
Trustee pursuant to subclause (B) of Clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section
1003 shall survive.
Section 402. Satisfaction, Discharge and Defeasance.
If provision is made in or pursuant to this Indenture for defeasance of
Securities of any series and any Coupons appertaining thereto pursuant to this
Section, the Company shall be deemed to have paid and discharged the entire
indebtedness on all the Outstanding Securities of such series and the Trustee,
at the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of such indebtedness, when
(1) either
(A) with respect to all Outstanding Securities of such series
and any Coupons appertaining thereto,
(i) the Company has irrevocably deposited or caused to be
deposited with the Trustee, as trust
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funds in trust for such purpose, an amount sufficient to pay and
discharge the entire indebtedness on such Securities and any Coupons
appertaining thereto for the principal of, any premium and interest
on, and any Additional Amounts with respect to such Securities and any
Coupons appertaining thereto to the Maturity thereof as contemplated
by the penultimate paragraph of this Section; or
(ii) the Company has deposited or caused to be deposited with
the Trustee, as obligations in trust for such purpose, such amount of
Government Obligations applicable to such Securities or any Coupons
appertaining thereto (determined on the basis of the Currency in which
such Securities or any Coupons appertaining thereto are specified as
payable at the Maturity thereof) as shall, together with the income to
accrue thereon without consideration of any reinvestment thereof, be
sufficient to pay and discharge the entire indebtedness on all such
Securities and any Coupons appertaining thereto for the principal of,
any premium or interest on or Additional Amounts with respect to such
Securities and any Coupons appertaining thereto to the Maturity
thereof, as contemplated by the penultimate paragraph of this Section;
or
(B) the Company has properly fulfilled such other means of
satisfaction and discharge as is provided in or pursuant to this Indenture
for the Securities of such series; and
(2) the Company has paid or caused to be paid all other sums payable
hereunder with respect to the Outstanding Securities of such series and any
Coupons appertaining thereto; and
(3) the Company has paid all costs, charges and expenses incurred or to
be incurred by the Trustee in relation thereto or in carrying out the
provisions of this Indenture; and
(4) the Company has delivered to the Trustee a certificate signed by
Independent Public Accountants certifying as to the sufficiency of the amounts
deposited pursuant to subsections (A)(i) or (ii) of this Section for payment
of the principal of, any premium and interest on and any Additional Amounts
with respect to such Securities and any Coupons appertaining thereto on the
dates such payments
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are due, an Officer's Certificate and an Opinion of Counsel, each such
Certificate and Opinion stating that no Event of Default or event which with
notice or lapse of time or both would become an Event of Default with respect
to such Securities shall have occurred and all conditions precedent herein
provided for relating to the satisfaction and discharge of the entire
indebtedness on all Outstanding Securities of any such series and any Coupons
appertaining thereto shall have been complied with; and
(5) the Company has delivered to the Trustee
(A) an opinion of independent counsel to the Trustee that the
Holders of the Securities of such series and any Coupons appertaining
thereto shall have no federal income tax consequences as a result of such
deposit and termination; and
(B) if the Securities of such series are then listed on the New York
Stock Exchange, an opinion of independent counsel that the Securities of
such series shall not be delisted as a result of the exercise of this
option.
Any deposits with the Trustee referred to in subsection (1)(A) of this
Section 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 or otherwise, 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 402
with respect to all the Outstanding Securities of any series and any Coupons
appertaining thereto, the terms and conditions of such series (including the
terms and conditions with respect thereto set forth in this Indenture, other
than the provisions of Sections 305, 306 and 1002 and other than the right of
Holders of Securities of such series and any Coupons appertaining thereto to
receive, from the trust fund described in this Section, payment of the
principal of, any premium or the interest on, or any Additional Amounts with
respect to such Securities and any Coupons appertaining thereto when such
payments shall be due) 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 or any Coupons
appertaining thereto
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which are deemed not to be Outstanding under clause (iii) of the definition of
Outstanding if such obligations continue to be valid obligations of the
Company under applicable law and the rights, obligations and immunities of the
Trustee hereunder, including but not limited to Section 605, shall continue.
Section 403. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003, all
Money and Government Obligations deposited with the Trustee pursuant to
Section 401 or 402 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, the Coupons and this Indenture, to the
payment, either directly or through any Paying Agent (including the Company
acting as its own Paying Agent) as the Trustee may determine, to the Persons
entitled thereto, of the principal, premium, interest and Additional Amounts
for whose payment such Money has or Government Obligations have been deposited
with or received by the Trustee; but such Money and Government Obligations
need not be segregated from other funds except to the extent required by law.
ARTICLE FIVE
Remedies
Section 501. Events of Default.
"Event of Default", wherever used herein with respect to 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 be effected by
operation of law 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 on or any Additional
Amounts payable in respect of any Security of such series when such
interest becomes or such Additional Amounts become due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of and any premium on
any Security of such series when it becomes due and payable at its
Maturity; or
(3) default in the deposit of any sinking fund payment, when and as
due by the terms of a Security of such series; or
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(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture or the Securities (other than a
covenant or warranty a default in the performance or the breach of which is
elsewhere in this Section specifically dealt with or which has been
expressly included in this Indenture solely for the benefit of a series of
Securities other than such series), and continuance of such default or
breach for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and the
Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of such series a written notice specifying such
default or breach and requiring it to be remedied and stating that such
notice is a "Notice of Default" hereunder; or
(5) the entry by a court having competent jurisdiction of:
(a) a decree or order for relief in respect of the Company in
an involuntary proceeding under any applicable bankruptcy, insolvency,
reorganization or other similar law and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(b) a decree or order adjudging the Company to be insolvent, or
approving a petition seeking reorganization, arrangement, adjustment
or composition of the Company and such decree or order shall remain
unstayed and in effect for a period of 60 consecutive days; or
(c) a final and non-appealable order appointing a custodian,
receiver, liquidator, assignee, trustee or other similar official of
the Company or of any substantial part of the property of the Company,
or ordering the winding up or liquidation of the affairs of the
Company; or
(6) the commencement by the Company of a voluntary proceeding under
any applicable bankruptcy, insolvency, reorganization or other similar law or of
a voluntary proceeding seeking to be adjudicated insolvent or the consent by the
Company to the entry of a decree or order for relief in an involuntary
proceeding under any applicable bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any insolvency proceedings against
it, or the filing by the Company of a petition or answer or consent seeking
reorganization or relief under any applicable law, or the consent by the
Company to the filing
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of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee or similar official of
the Company or any substantial part of the property of the Company or the
making by the Company of an assignment for the benefit of creditors, or the
taking of corporate action by the Company in furtherance of any such
action; or
(7) any other Event of Default provided in or pursuant to this
Indenture with respect to Securities of such series.
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 the Trustee or the Holders of
not less than 25% in principal amount of the Outstanding Securities of such
series may declare the principal of all the Securities of such series, or such
lesser amount as may be provided for in the Securities of such series, to be
due and payable immediately, by a notice in writing to the Company (and to the
Trustee if given by the Holders), and upon any such declaration such principal
or such lesser 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 not less than a majority in principal
amount of the Outstanding Securities of such 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 of Money
sufficient to pay:
(A) all overdue installments of interest on and Additional
Amounts with respect to all Securities of such series and any Coupons
appertaining thereto;
(B) the principal of and any premium on any Securities of such
series which have become due otherwise than by such declaration of
acceleration and interest thereon and any Additional Amounts with
respect thereto at the rate or rates borne by or provided for in such
Securities;
(C) to the extent that payment of such interest or Additional
Amounts is lawful, interest upon overdue installments of interest and
Additional Amounts at the
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rate or rates borne by or provided for in such Securities; and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of such
series, other than the non-payment of the principal of, any premium and
interest on, and any Additional Amounts with respect to Securities of such
series which shall have become due solely by such declaration of
acceleration, shall have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee.
The Company covenants that if:
(1) default is made in the payment of any installment of interest
on or any Additional Amounts with respect to any Security or any Coupon
appertaining thereto when such interest or Additional Amounts shall have
become 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 any premium
on any Security at its Maturity,
the Company shall, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of such Securities and any Coupons appertaining thereto,
the whole amount of Money then due and payable with respect to such Securities
and any Coupons appertaining thereto, with interest upon the overdue principal,
any premium and, to the extent that payment of such interest shall be legally
enforceable, upon any overdue installments of interest and Additional Amounts
at the rate or rates borne by or provided for in such Securities, and, in
addition thereto, such further amount of Money 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 the Money it is required to pay the Trustee
pursuant to the preceding paragraph forthwith upon the demand of the Trustee,
the Trustee, in its own name and as
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trustee of an express trust, may institute a judicial proceeding for the
collection of the Money so due and unpaid, and may prosecute such proceeding
to judgment or final decree, and may enforce the same against the Company or
any other obligor upon such Securities and any Coupons appertaining thereto
and collect the Money adjudged or decreed to be payable in the manner provided
by law out of the property of the Company or any other obligor upon such
Securities and any Coupons appertaining thereto, 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 Coupons appertaining thereto 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 such Securities or in aid of the exercise of any power
granted herein or therein, or to enforce any other proper remedy.
Section 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company or 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 any overdue principal,
premium, interest or Additional Amounts) shall be entitled and empowered, by
intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount, or such lesser
amount as may be provided for in the Securities of such series, of the
principal and any premium, interest and Additional Amounts owing and unpaid
in respect of the Securities and any Coupons appertaining thereto 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 or counsel) and of the Holders of Securities or any
Coupons allowed in such judicial proceeding, and
(ii) to collect and receive any Money or other property payable or
deliverable on any such claims and to distribute the same;
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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 or any 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 or any Coupons, to pay to the
Trustee any amount due to 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 605.
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 any Coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or Coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or any Coupon in any such proceeding.
Section 505. Trustee May Enforce Claims without Possession of
Securities or Coupons.
All rights of action and claims under this Indenture or any of the
Securities or Coupons may be prosecuted and enforced by the Trustee without
the possession of any of the Securities or Coupons or the production thereof
in any proceeding relating thereto, and any such proceeding instituted by the
Trustee shall be brought in its own name as trustee of an express trust, and
any recovery or judgment, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, shall be for the ratable benefit of each and every Holder of a
Security or Coupon 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 any
premium, interest or Additional Amounts, upon presentation of the Securities
or Coupons, or both, as the case may be, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 605;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and any Coupons for principal and any premium, interest and
Additional Amounts in respect of
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which or for the benefit of which such Money has been collected, ratably,
without preference or priority of any kind, according to the aggregate amounts
due and payable on such Securities and Coupons for principal and any premium,
interest and Additional Amounts, respectively;
THIRD: The balance, if any, to the Person or Persons entitled
thereto.
Section 507. Limitation on Suits.
No Holder of any Security of any series or any Coupons appertaining
thereto 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 such
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of such series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default in
its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding;
and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority
in principal amount of the Outstanding Securities of such 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 or any Security to affect, disturb or prejudice
the rights of any other such Holders or Holders of Securities of any other
series, or to obtain or to seek to obtain priority or preference over any
other Holders or to enforce any right under this Indenture, except in the
manner herein provided and for the equal and ratable benefit of all such
Holders.
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Section 508. Unconditional Right of Holders to Receive Principal
and any Premium, Interest and Additional Amounts.
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, any premium and (subject to Sections
305 and 307) interest on, and any Additional Amounts with respect to such
Security or payment of such Coupon, as the case may be, on the respective
Stated Maturity or Maturities therefor specified in such Security or Coupon
(or, in the case of redemption, on the Redemption Date or, in the case of
repayment at the option of such Holder if provided in or pursuant to this
Indenture, on the date such repayment is due) and to institute suit for the
enforcement of any such payment, and such right 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 a Coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and each such Holder 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 each such Holder shall continue as though no such proceeding
had been instituted.
Section 510. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities or Coupons in the last
paragraph of Section 306, no right or remedy herein conferred upon or reserved
to the Trustee or to each and every Holder of a Security or a Coupon is
intended to be exclusive of any other right or remedy, and every right and
remedy, to the extent permitted by law, shall 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
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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
any Holder of a Security or a Coupon may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by such Holder, 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 and any Coupons appertaining thereto, provided that:
(1) such direction shall not be in conflict with any rule of law,
with this Indenture or with the Securities of such series;
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction; and
(3) such direction is not unduly prejudicial to the rights of the
other Holders of Securities of such series not joining in such action.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series on behalf of the Holders of all the
Securities of such series and any Coupons appertaining thereto may waive any
past default hereunder with respect to such series and its consequences,
except a default:
(1) in the payment of the principal of, any premium or interest on,
or any Additional Amounts with respect to any Security of such series or
any Coupons appertaining thereto; or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such
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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 the 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 and 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, the Trustee or 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 (and
premium, if any) or interest on or any Additional Amounts in respect of any
Security or the payment of any Coupon on or after the respective Stated
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.
ARTICLE SIX
The Trustee
Section 601. Certain Rights of Trustee.
Subject to Sections 315(a) through 315(d) of the Trust Indenture Act:
(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 or other paper or document reasonably
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 a Company Order (in each
case, other than in connection with the delivery of any Security, together
with any Coupons appertaining thereto, to the Trustee for authentication
and
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delivery pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution;
(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 shall be herein specifically prescribed) may, in the absence
of bad faith on its part, rely upon an Officer's Certificate;
(d) the Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by or pursuant to this Indenture at the
request or direction of any of the Holders of Securities of any series or
any Coupons appertaining thereto 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, direction, consent, order,
bond, debenture, coupon or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such facts
or matters as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to examine,
during business hours and upon reasonable notice, the books, records and
premises of the Company, personally or by agent or attorney; and
(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.
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Section 602. Not Responsible for Recitals or Issuance of
Securities.
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any Coupons shall be taken as
the statements of the Company and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or the Coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility and Qualification on Form T-1 supplied to the Company
are true and accurate, subject to the qualifications set forth therein.
Neither the Trustee nor any Authenticating Agent shall be accountable for the
use or application by the Company of the Securities or the proceeds thereof.
Section 603. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any Security
Registrar or any other Person that may be an agent of the Trustee or the
Company, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons and, subject to Sections 310(b) and 311 of
the Trust Indenture Act, 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 Person.
Section 604. 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 and shall be held uninvested.
The Trustee shall be under no liability for interest on any Money received by
it hereunder except as otherwise agreed with the Company.
Section 605. Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by the Trustee 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) 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
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Indenture (including the reasonable compensation and the expenses and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to the Trustee's negligence
or bad faith; and
(3) to indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on their part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending themselves against any claim
or liability in connection with the exercise or performance of any of their
powers or duties hereunder, except to the extent that any such loss,
liability or expense was due to the Trustee's negligence or bad faith.
As security for the performance of the obligations of the Company under
this Section, the Trustee shall have a lien prior to the Securities of any
series upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of, and premium or
interest on or any Additional Amounts with respect to Securities or any
Coupons appertaining thereto.
The obligations of the Company under this Section to compensate and
indemnify the Trustee and each predecessor Trustee for expenses, disbursements
and advances shall constitute additional indebtedness hereunder and shall
survive the satisfaction and discharge of this Indenture.
Section 606. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder that is a Corporation
permitted by the Trust Indenture Act to act as trustee under an indenture
qualified under the Trust Indenture Act and that has a combined capital and
surplus (computed in accordance with Section 310(a)(2) of the Trust Indenture
Act) of at least $5,000,000. 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 607. 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 pursuant to Section 608.
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(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 a successor Trustee required by Section 608 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 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 the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the obligations imposed
upon it under Section 310(b) of the Trust Indenture Act with respect to
Securities of any series after written request therefor by the Company or
any Holder of a Security of such series who has been a bona fide Holder of
a Security of such series for at least six months; or
(2) the Trustee shall cease to be eligible under Section 606 and
shall fail to resign after written request therefor by the Company or 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 or pursuant to a Board Resolution,
may remove the Trustee with respect to all Securities or the Securities of
such series, or (ii) subject to Section 315(e) of the Trust Indenture Act, 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
removal of the Trustee with respect to all Securities of such series 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 or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
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understood that any such successor Trustee may be appointed with respect to
the Securities of one or more or all of such series and that at any time there
shall be only one Trustee with respect to the Securities of any particular
series) and shall comply with the applicable requirements of Section 608. 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 608, 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 608, 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 such event by first-class mail, postage
prepaid, to the Holders of Registered Securities, if any, of such series as
their names and addresses appear in the Security Register and, if Securities
of such series are issued 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 608. Acceptance of Appointment by Successor.
(a) Upon the appointment hereunder of any successor Trustee with
respect to all Securities, such successor Trustee so appointed shall execute,
acknowledge and deliver to the Company and 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 hereunder of the retiring Trustee; but, on the
request of the Company or such successor Trustee, such retiring Trustee, upon
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payment of its charges, shall execute and deliver an instrument transferring
to such successor Trustee all the rights, powers and trusts of the retiring
Trustee and, subject to Section 1003, shall duly assign, transfer and deliver
to such successor Trustee all property and Money held by such retiring Trustee
hereunder, subject nevertheless to its claim, if any, provided for in Section
605.
(b) Upon the appointment hereunder of any successor Trustee with
respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and such successor Trustee 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, such successor
Trustee all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates, (2) if the retiring Trustee is not retiring
with respect to all Securities, shall contain such provisions as shall be
deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue
to be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one
Trustee, it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same trust, 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 that no Trustee shall be responsible for any notice given to, or
received by, or any act or failure to act on the part of any other Trustee
hereunder, and, upon the execution and delivery of such supplemental
indenture, the resignation or removal of the retiring Trustee shall become
effective to the extent provided therein, such retiring Trustee shall have no
further responsibility for the exercise of rights and powers or for the
performance of the duties and obligations vested in the Trustee under this
Indenture with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates other than as hereinafter
expressly set forth, 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 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 such successor Trustee, such retiring Trustee, upon
payment of its charges with respect to the Securities of that or those series
to which the appointment of such successor relates and
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subject to Section 1003 shall duly assign, transfer and deliver to such
successor Trustee, to the extent contemplated by such supplemental indenture,
the 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 Person appointed hereunder as a successor
Trustee, the Company shall execute any and all instruments for more fully and
certainly vesting in and confirming to such successor Trustee all such rights,
powers and trusts referred to in paragraph (a) or (b) of this Section, as the
case may be.
(d) No Person shall accept its appointment hereunder as a successor
Trustee unless at the time of such acceptance such successor Person shall be
qualified and eligible under this Article.
Section 609. Merger, Conversion, Consolidation or Succession to
Business.
Any Corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any Corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any Corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
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 610. Appointment of Authenticating Agent.
The Trustee may appoint one or more Authenticating Agents acceptable to
the Company with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of that
or those series issued upon original issue, exchange, registration of
transfer, partial redemption 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
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authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except
as provided in or pursuant to this Indenture, shall at all times be a
corporation that would be permitted by the Trust Indenture Act to act as
trustee under an indenture qualified under the Trust Indenture Act, is
authorized under applicable law and by its charter to act as an Authenticating
Agent and has a combined capital and surplus (computed in accordance with
Section 310(a)(2) of the Trust Indenture Act) of at least $5,000,000. If at
any time an Authenticating Agent shall cease to be eligible in accordance with
the provisions of this Section, it 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 be the successor
of such Authenticating Agent hereunder, 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 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 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 shall serve, as their names and addresses appear in
the Security Register, and (ii) if Securities of the series are issued as
Bearer Securities, publish notice of such appointment at least once in an
Authorized Newspaper in the place where such successor 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
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Agent. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
The provisions of Sections 308, 602 and 603 shall be applicable to each
Authenticating Agent.
If an Authenticating Agent is appointed with respect to one or more
series of Securities pursuant to this Section, the Securities of such series
may have endorsed thereon, in addition to or in lieu of the Trustee's
certificate of authentication, an alternate certificate of authentication in
the following form:
This is one of the Securities of the series designated herein referred
to in the within-mentioned Indenture.
The Chase Manhattan Bank, N.A.,
as Trustee
By
-----------------------------------------------
as Authenticating Agent
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 be
accompanied by or contained in an Officer's Certificate by the Company), shall
appoint in accordance with this Section an Authenticating Agent having an
office in a Place of Payment designated by the Company with respect to such
series of Securities.
Section 611. Notice of Defaults.
The Trustee shall, within ninety days after the occurrence of a default
with respect to the Securities of any series, mail to all Holders of
Securities of that series entitled to receive reports pursuant to Section
7.03, notice of all defaults with respect to that series known to the Trustee,
unless such defaults shall have been cured before the giving of such notice;
provided, however, that, except in the case of default in the payment of the
principal of, premium, if any, or interest on any of the Securities of such
series or in the making of any sinking fund payment with respect to such
series, the Trustee shall be protected in withholding such notice if and so
long as the board
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of directors or trustees, the executive committee, or a trust committee of
directors or trustees or Responsible Officers of the Trustee in good faith
determines that the withholding of such notice is in the interests of the
Holders of Securities of such series. 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.
ARTICLE SEVEN
Holders' Lists and Reports by Trustee and Company
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
In accordance with Section 312(a) of the Trust Indenture Act, the
Company shall furnish or cause to be furnished to the Trustee:
(a) semi-annually with respect to Securities of each series on June
30 and December 31 of each year or upon such other dates as are set forth
in or pursuant to the Board Resolution or indenture supplemental hereto
authorizing such series, a list, in each case, in such form as the Trustee
may reasonably require, of the names and addresses of Holders as of the
applicable date; and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list
of similar form and content as of a date not more than 15 days prior to the
time such list is furnished;
provided, however, that so long as the Trustee is the Security Registrar no
such list shall be required to be furnished.
Section 702. Preservation of Information; Communications to
Holders.
The Trustee shall comply with the obligations imposed upon it pursuant
to Section 312 of the Trust Indenture Act.
Every Holder of Securities or Coupons, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company, the
Trustee, any Paying Agent or any Security Registrar shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders of Securities in accordance with Section 312 of the
Trust Indenture Act, regardless of the source from which such information was
derived, and that the Trustee shall not be held
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accountable by reason of mailing any material pursuant to a request made under
Section 312(b) of the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) Within 60 days after May 15 of each year commencing with the first
May 15 following the first issuance of Securities pursuant to Section 301, if
required by Section 313(a) of the Trust Indenture Act, the Trustee shall
transmit, pursuant to Section 313(c) of the Trust Indenture Act, a brief
report dated as of such May 15 with respect to any of the events specified in
said Section 313(a) which may have occurred since the later of the immediately
preceding May 15 and the date of this Indenture.
(b) The Trustee shall transmit the reports required by Section 313(b)
of the Trust Indenture Act and Section 611 hereof at the times specified
therein.
(c) Reports pursuant to this Section shall be transmitted in the
manner and to the Persons required by Sections 313(c) and 313(d) of the Trust
Indenture Act.
Section 704. Reports by Company.
The Company, pursuant to Section 314(a) of the Trust Indenture Act,
shall:
(1) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports
and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by
rules and regulations prescribe) which the Company may be required to file
with the Commission pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934; or, if the Company is not required to file
information, documents or reports pursuant to either of said Sections, then
it shall file with the Trustee and the Commission, in accordance with rules
and regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities
exchange as may be prescribed from time to time in such rules and
regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by
the Company with the conditions and covenants of this Indenture
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as may be required from time to time by such rules and regulations; and
(3) transmit to the Holders within 30 days after the filing thereof
with the Trustee, in the manner and to the extent provided in Section 313(c)
of the Trust Indenture Act, such summaries of any information, documents and
reports required to be filed by the Company pursuant to paragraphs (1) and (2)
of this Section as may be required by rules and regulations prescribed from
time to time by the Commission.
ARTICLE EIGHT
Consolidation, Merger and Sales
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
Nothing contained in this Indenture or in any of the Securities shall
prevent any consolidation or merger of the Company with or into any other
Person or Persons (whether or not affiliated with the Company), or successive
consolidations or mergers in which the Company or its successor or successors
shall be a party or parties, or shall prevent any conveyance, transfer or
lease of the property of the Company as an entirety or substantially as an
entirety, to any other Person (whether or not affiliated with the Company);
provided, however, that:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer or lease its properties and assets
substantially as an entirety to any Person, the entity 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 shall expressly assume, by an
indenture (or indentures, if at such time there is more than one Trustee)
supplemental hereto, executed by the successor Person and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment
of the principal of, any premium and interest on and any Additional Amounts
with respect to all the Securities and the performance of every other
covenant of this Indenture on the part of the Company to be performed or
observed;
(2) immediately after giving effect to such transaction, no event
which, after notice or lapse of time,
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would become an Event of Default, shall have occurred and be continuing;
(3) either the Company or the successor Person shall have delivered
to the Trustee an Officer's Certificate and an Opinion of Counsel, stating
that such consolidation, 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 Person Substituted for Company.
Upon any consolidation or merger or any conveyance, transfer or lease of
the properties and assets of the Company substantially as an entirety to any
Person in accordance with Section 801, the successor Person 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 Person had been named as the Company herein;
and thereafter, except in the case of a lease to another Person, the
predecessor Person shall be released from all obligations and covenants under
this Indenture, the Securities and the 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 or pursuant to a Board Resolution) and the Trustee, at any
time and from time to time, may enter into one or more indentures supplemental
hereto, in form satisfactory to the Trustee, for any of the following
purposes:
(1) to evidence the succession of another Person to the Company, and
the assumption by any such successor of the covenants of the Company herein
and in the Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (as shall be specified in such
supplemental indenture or indentures) or to surrender any right or power
herein conferred upon the Company; or
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(3) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of, any
premium or interest on or any Additional Amounts with respect to
Securities, to permit Registered Securities to be exchanged for Bearer
Securities, to permit Bearer Securities to be exchanged for Bearer
Securities of other authorized denominations or to permit or facilitate 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 Coupons appertaining thereto in any material respect; or
(4) to establish the form or terms of Securities of any series and
any Coupons appertaining thereto as permitted by Sections 201 and 301; or
(5) 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 608; or
(6) to cure any ambiguity, to correct or supplement any provision
herein which may be defective or inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not adversely affect the
interest of the Holders of Securities of any series or any Coupons
appertaining thereto in any material respect; or
(7) to add to, delete from or revise the conditions, limitations and
restrictions on the authorized amount, terms or purposes of issue,
authentication and delivery of Securities, as herein set forth; or
(8) to add any additional Events of Default with respect to all or
any series of Securities (as shall be specified in such supplemental
indenture); or
(9) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Article Four; provided
that any such action shall not adversely affect the interests of any Holder
of a Security of such series and any Coupons appertaining thereto or any
other Security or Coupon in any material respect; or
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(10) to secure the Securities pursuant to Section 1005 or otherwise; or
(11) to amend or supplement any provision contained herein or in any
supplemental indenture, provided that no such amendment or supplement shall
materially adversely affect the interests of the Holders of any Securities
then Outstanding.
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 delivered to the Company and
the Trustee, the Company (when authorized by or pursuant to a Board
Resolution), and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders of Securities of such series
under this Indenture; provided, however, that no such supplemental indenture,
without the consent of the Holder of each Outstanding Security affected
thereby, shall:
(1) change the Stated Maturity of the principal of, or any premium
or installment of interest on or any Additional Amounts with respect to,
any Security, or reduce the principal amount thereof or the rate of
interest thereon or any Additional Amounts with respect thereto, or any
premium payable upon the redemption thereof or otherwise, or change the
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 the amount
thereof provable in bankruptcy pursuant to Section 504, or adversely affect
the right of repayment at the option of any Holder as contemplated by
Article Thirteen, or change the Place of Payment, Currency in which the
principal of, any premium or interest on, or any Additional Amounts with
respect to any Security 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,
in the case of repayment at the option of the Holder, on or after the date
for repayment); or
(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose
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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 1504 for quorum or voting; or
(3) modify any of the provisions of this Section, or Section 513 or
Section 1007, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby.
A supplemental indenture which changes or eliminates any covenant or other
provision of this Indenture which shall have been included expressly and 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.
As a condition to executing, or accepting the additional trusts created
by, any supplemental indenture permitted by this Article or the modifications
thereby of the trust created by this Indenture, the Trustee shall be entitled
to receive, and (subject to Section 315 of the Trust Indenture Act) 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 a Security theretofore or thereafter authenticated and
delivered hereunder and of any Coupon appertaining thereto shall be bound
thereby.
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Section 905. Reference in Securities to Supplemental Indentures.
Securities of any series authenticated and delivered after the execution
of any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee as to
any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
Covenants
Section 1001. Payment of Principal and any Premium, Interest and
Additional Amounts.
The Company covenants and agrees for the benefit of the Holders of each
series of Securities that it will duly and punctually pay the principal of,
any premium and interest on and any Additional Amounts with respect to the
Securities of that series in accordance with the respective terms thereof, any
Coupons appertaining thereto and this Indenture. Any principal due on any
Bearer Security shall be payable only upon presentation and surrender of such
Bearer Security and any interest due on any Bearer Security on or before the
Maturity thereof, and any Additional Amounts payable with respect to such
interest, shall be payable only upon presentation and surrender of the Coupons
appertaining thereto for such interest as they severally mature.
Section 1002. Maintenance of Office or Agency.
The Company shall maintain in each Place of Payment for any series of
Securities an Office or Agency where Securities of such series (but not Bearer
Securities, except as otherwise provided below, unless such Place of Payment
is located outside the United States) may be presented or surrendered for
payment, where Securities of such 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 such series relating thereto and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Company shall maintain, subject to any laws or regulations
applicable thereto, an Office or Agency in a Place of Payment for such series
which is located outside the United States where Securities of such
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series and any Coupons appertaining thereto may be presented and surrendered
for payment; provided, however, that if the Securities of such series are
listed on The Stock Exchange of the United Kingdom and the Republic of Ireland
or the Luxembourg Stock Exchange or any other stock exchange located outside
the United States and such stock exchange shall so require, the Company shall
maintain a Paying Agent in London, Luxembourg or any other required city
located outside the United States, as the case may be, so long as the
Securities of such series are listed on such exchange. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such Office or Agency. If at any time the Company shall fail to
maintain any such required Office or Agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the Trustee,
except that Bearer Securities of such series and any Coupons appertaining
thereto may be presented and surrendered for payment at the place specified
for the purpose with respect to such Securities as provided in or pursuant to
this Indenture, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
Except as otherwise provided in or pursuant to this Indenture, no
payment of principal, premium, interest or Additional Amounts with respect to
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, if amounts owing with respect to any Bearer Securities
shall be payable in Dollars, payment of principal of, any premium or interest
on and any Additional Amounts with respect to any such Security may be made at
the Corporate Trust Office of the Trustee or any office or agency designated
by the Company 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
such purpose by the Company in accordance with this Indenture is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company may 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 for Securities of any
series for such purposes. The Company shall give prompt written notice to the
Trustee of any such designation or
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rescission and of any change in the location of any such other office or
agency. Unless otherwise provided in or pursuant to this Indenture, the
Company hereby designates as the Place of Payment for each series the Borough
of Manhattan, The City of New York, and initially appoints the Corporate Trust
Office of the Trustee as the Office or Agency for such purpose. Pursuant to
Section 301(9) of this Indenture, the Company may subsequently appoint a place
or places in the Borough of Manhattan, The City of New York where such
Securities may be payable.
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 shall, on or before each due date of
the principal of, any premium or interest on or Additional Amounts with
respect to any of the Securities of such series, segregate and hold in trust
for the benefit of the Persons entitled thereto a sum of Money sufficient to
pay such principal, any premium or interest on or Additional Amounts so
becoming due until such sums shall be paid to such Persons or otherwise
disposed of as herein provided, and shall promptly notify the Trustee of its
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series
of Securities, it shall, on or prior to each due date of the principal of, any
premium or interest on or any Additional Amounts with respect to any
Securities of such series, deposit with any Paying Agent for such series a sum
of Money sufficient to pay such principal, any premium or interest on or
Additional Amounts so becoming due, such sum to be held in trust for the
benefit of the Persons entitled thereto, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of its action or failure
so to act.
The Company shall 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 shall:
(1) hold all sums held by it for the payment of the principal of,
any premium or interest on or any Additional Amounts with respect to
Securities of such 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 provided in or pursuant to this Indenture;
(2) give the Trustee notice of any default by the Company (or any
other obligor upon the Securities of such series) in the making of any
payment of principal of, any
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premium, or interest on or any Additional Amounts with respect to the
Securities of such 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 terms 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.
Except as otherwise provided hereby or pursuant hereto, 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, any premium or interest on or
any Additional Amounts with respect to any Security of any series and
remaining unclaimed for one year after such principal or any such premium or
interest or any such Additional Amounts shall have 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 for such series or
to be mailed to Holders of Registered Securities of such series, or both,
notice that such Money remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such
publication or mailing nor shall it be later than two years after such
principal and any premium or interest or Additional Amounts shall have become
due and payable, any unclaimed balance of such Money then remaining will be
repaid to the Company.
Section 1004. Additional Amounts.
If any Securities of a series provide for the payment of Additional
Amounts, the Company agrees to pay to the Holder of any such Security or any
Coupon appertaining thereto Additional Amounts as provided therein. Whenever
in this Indenture there is
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mentioned, in any context, the payment of the principal of or any premium or
interest on, or in respect of, any Security of any series or any Coupon or the
net proceeds received on the sale or exchange of any Security of any series,
such mention shall be deemed to include mention of the payment of Additional
Amounts provided by the terms of such series established hereby or pursuant
hereto to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms, and express
mention of the payment of Additional Amounts (if applicable) in any provision
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise provided in or pursuant to this Indenture, 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 such
series of Securities (or if the Securities of such series shall not bear
interest prior to Maturity, the first day on which a payment of principal is
made), and at least 10 days prior to each date of payment of principal or
interest if there has been any change with respect to the matters set forth in
the below-mentioned Officer's Certificate, the Company shall furnish to the
Trustee and the principal Paying Agent or Paying Agents, if other than the
Trustee, an Officer's Certificate instructing the Trustee and such Paying
Agent or Paying Agents whether such payment of principal of or interest on the
Securities of such series shall be made to Holders of Securities of such
series or the Coupons appertaining thereto who are United States Aliens
without withholding for or on account of any tax, assessment or other
governmental charge described in the Securities of such series. If any such
withholding shall be required, then such Officer's 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 agrees to pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. 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 Officer's Certificate furnished pursuant to this Section.
Section 1005. Limitation on Liens.
The Company will not pledge or otherwise subject to any lien any of its
property or assets unless the Securities are secured by such pledge or lien
equally and ratably with all other obligations secured thereby so long as such
other obligations shall be so secured; provided that such covenant will not
apply to liens securing obligations which do not in the aggregate at
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any one time outstanding exceed 5% of Consolidated Net Tangible Assets of the
Company and also will not apply to:
(a) the pledge of any assets to secure any financing by the Company
of the exporting of goods to or between, or the marketing thereof in,
countries other than the United States of America in connection with which
the Company reserves the right, in accordance with customary and
established banking practice, to deposit, or otherwise subject to a lien,
cash, securities or receivables, for the purpose of securing banking
accommodations or as the basis for the issuance of bankers' acceptances or
in aid of other similar borrowing arrangements;
(b) the pledge of receivables payable in currencies other than
Dollars to secure borrowings in countries other than the United States;
(c) any deposit of assets of the Company 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 from any judgment or decree
against it, or in connection with other proceedings in actions at law or in
equity by or against the Company or in favor of any governmental bodies to
secure progress, advance or other payments in the ordinary course of the
Company's business;
(d) any lien or charge on any property, tangible or intangible, real
or personal, existing at the time of acquisition or construction of such
property (including acquisition through merger or consolidation) or given
to secure the payment of all or any part of the purchase or construction
price thereof or to secure any indebtedness incurred prior to, at the time
of, or within one year after, the acquisition or contemplation of
construction thereof for the purpose of financing all or any part of the
purchase or construction price thereof;
(e) any lien in favor of the United States or any State thereof or
the District of Columbia, or any agency, department or other
instrumentality thereof, to secure progress, advance or other payments
pursuant to any contract or provision of any statute;
(f) any lien securing the performance of any contract or undertaking
of the Company not directly or indirectly in connection with the borrowing
of Money, obtaining of advances or credit or the securing of debts, if made
and continuing in the ordinary course of business;
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(g) any lien to secure non-recourse obligations in connection with
the Company's engaging in leveraged or single-investor lease transactions;
and
(h) any extension, renewal or replacement (or successive extensions,
renewals, or replacements), in whole or in part, of any lien, charge or
pledge referred to in the foregoing clauses (a) to (g), inclusive, of this
Section 1005, provided, however, that the amount of any and all obligations
and indebtedness secured thereby shall not exceed the amount thereof so
secured immediately prior to the time of such extension, renewal or
replacement, and that such extension, renewal or replacement shall be
limited to all or a part of the property which secured the charge or lien
so extended, renewed or replaced (plus improvements on such property).
Section 1006. Company Statement as to Compliance; Notice of Certain
Defaults.
The Company shall deliver to the Trustee, within 120 days after the end
of each fiscal year, a written statement (which need not be contained in or
accompanied by an Officer's Certificate) signed by the principal executive
officer, the principal financial officer or the principal accounting officer
of the Company, stating that
(a) a review of the activities of the Company during such year and
of its performance under this Indenture has been made under his or her
supervision, and
(b) to the best of his or her knowledge, based on such review, (a)
the Company has complied with all the conditions and covenants imposed on
it under this Indenture throughout such year, or, if there has been a
default in the fulfillment of any such condition or covenant, specifying
each such default known to him or her 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.
(c) The Company shall deliver to the Trustee, within five days after
the occurrence thereof, written notice of any event which after notice or
lapse of time or both would become an Event of Default pursuant to clause
(4) of Section 501.
Section 1007. Waiver of Certain Covenants.
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The Company may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1005 or 1006 with respect to the
Securities of any series if before the time for such compliance the Holders of
at least a majority in principal amount of the Outstanding Securities of such
series, by Act of such Holders, either shall waive such compliance in such
instance or generally shall have waived 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.
Redemption of Securities of any series at the option of the Company as
permitted or required by the terms of such Securities shall be made in
accordance with the terms of such Securities and (except as otherwise provided
herein or pursuant hereto) this Article.
Section 1102. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities shall be evidenced
by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of the Securities of any series with the same issue
date, interest rate and Stated Maturity and other terms, 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 of
such Redemption Date and of the principal amount of Securities of such series
to be redeemed.
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, Stated Maturity and other terms are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee from the Outstanding Securities of
such series not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the
selection for redemption of portions of the principal amount of
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Registered Securities of such series; provided, however, that no such partial
redemption shall reduce the portion of the principal amount of a Registered
Security of such series not redeemed to less than the minimum denomination for
a Security of such series established herein or pursuant hereto.
The Trustee shall promptly notify the Company and the Security Registrar
(if other than itself) in writing of the Securities selected for redemption
and, in the case of any Securities selected for partial redemption, the
principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any 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.
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 part, or any defect in the notice
to any such Holder, shall not affect the validity of the proceedings for the
redemption of any other 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 Security or Securities to be redeemed;
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the Redemption
Date, upon surrender of such Security, the Holder of such Security will
receive,
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without charge, a new Security or Securities of authorized denominations
for the principal amount thereof remaining unredeemed;
(5) that, on the Redemption Date, the Redemption Price shall become
due and payable upon each such Security or portion thereof to be redeemed,
and 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, 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 be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject to
redemption on 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, the Euroclear or the CEDEL reference numbers
of such Securities, if any.
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.
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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 thereto, on all the Securities or portions thereof which
are to be redeemed on that date.
Section 1106. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified, 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
any 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 (at 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
Regular Record Dates therefor according to their terms and the provisions of
Section 307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant Coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing Coupons, or the surrender of such
missing Coupon or Coupons may be waived by the Company and the Trustee if
there be furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of
such Security shall surrender to the Trustee or any Paying Agent any such
missing Coupon in respect of which a deduction shall have been made from the
Redemption Price, such Holder shall be entitled to receive the amount so
deducted; provided, however, that any interest or Additional Amounts
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represented by Coupons shall be payable only upon presentation and surrender
of those Coupons at an Office or Agency for such Security 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 any premium, until paid,
shall bear interest from the Redemption Date at the rate prescribed therefor
in the Security.
Section 1107. Securities Redeemed in Part.
Any Registered Security which is to be redeemed only in part shall be
surrendered at any Office or Agency 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
for the retirement of Securities of a series, except as otherwise permitted or
required by any form of Security of such series issued pursuant to this
Indenture.
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 such series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of Securities of any
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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.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in satisfaction of all or any part of any sinking fund
payment with respect to the Securities of any such series to be made pursuant
to the terms of such Securities (1) deliver Outstanding Securities of such
series (other than any of such Securities previously called for redemption or
any of such Securities in respect of which cash shall have been released to
the Company), together in the case of any Bearer Securities of such series
with all unmatured Coupons appertaining thereto, and (2) apply as a credit
Securities of such series which have been redeemed either at the election of
the Company pursuant to the terms of such series of Securities or through the
application of permitted optional sinking fund payments pursuant to the terms
of such Securities, 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. If as a result of the
delivery or credit of Securities of any series in lieu of cash payments
pursuant to this Section 1202, the principal amount of Securities of such
series to be redeemed in order to exhaust the aforesaid cash payment shall be
less than $100,000, the Trustee need not call Securities of such series for
redemption, except upon Company Request, and such cash payment shall be held
by the Trustee or a Paying Agent and applied to the next succeeding sinking
fund payment; provided, however, that the Trustee or such Paying Agent shall
at the request of the Company from time to time pay over and deliver to the
Company any cash payment so being held by the Trustee or such Paying Agent
upon delivery by the Company to the Trustee of Securities of that series
purchased by the Company having an unpaid principal amount equal to the cash
payment requested to be released to the Company.
Section 1203. Redemption of Securities for Sinking Fund.
Not less than 75 days prior to each sinking fund payment date for any
series of Securities, the Company shall deliver to the Trustee an Officer's
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash and the portion
thereof, if any, which is to be satisfied by delivering and
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crediting of Securities of that series pursuant to Section 1202, and the
optional amount, if any, to be added in cash to the next ensuing mandatory
sinking fund payment, and will also deliver to the Trustee any Securities to
be so credited and not theretofore delivered. If such Officer's Certificate
shall specify an optional amount to be added in cash to the next ensuing
mandatory sinking fund payment, the Company shall thereupon be obligated to
pay the amount therein specified. Not less than 60 days before each such
sinking fund payment date the Trustee shall select the Securities to be
redeemed upon such sinking fund payment date in the manner specified in
Section 1103 and cause notice of the redemption thereof to be given in the
name of and at the expense of the Company in the manner provided in Section
1104. Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and
1107.
ARTICLE THIRTEEN
Repayment at the Option of Holders
Section 1301. Applicability of Article.
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 such 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 1301, 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.
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ARTICLE FOURTEEN
Securities in Foreign Currencies
Section 1401. Applicability of Article.
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 Dollars shall be
treated for any such action or distribution as that amount of 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
Meetings of Holders of Securities
Section 1501. Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities of any series may be called at any
time and from time to time pursuant to this Article to make, give or take any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be made, given or taken by Holders of
Securities of such series.
Section 1502. Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in The City of New York, or, if Securities of
such series have been issued as Bearer Securities, in London or such other
place outside the United States, as the Trustee shall determine. Notice of
every meeting of Holders of Securities of any series, setting forth the time
and the place of such meeting and in general terms the action proposed to be
taken at such meeting, shall be given, in the manner provided in Section 106,
not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
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(b) In case at any time the Company (by or pursuant to a Board
Resolution) or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call
a meeting of the Holders of Securities of such series for any purpose
specified in Section 1501, by written request setting forth in reasonable
detail the action proposed to be taken at the meeting, and the Trustee shall
not have made the first publication or mailing of the notice of such meeting
within 21 days after receipt of such request or shall not thereafter proceed
to cause the meeting to be held as provided herein, then the Company or the
Holders of Securities of such series in the amount above specified, as the
case may be, may determine the time and the place in The City of New York, or,
if Securities of such series are to be issued as Bearer Securities, in London
for such meeting and may call such meeting for such purposes by giving notice
thereof as provided in subsection (a) of this Section.
Section 1503. Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (1) a Holder of one or more Outstanding Securities
of such series, or (2) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series
by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series
shall be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
Section 1504. Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, however, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than
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 after the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any
such adjourned meeting, such adjourned meeting may be further adjourned for a
period of not
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less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 1502(a), except that
such notice need be given only once not less than five days prior to the date
on which the meeting is scheduled to be reconvened. Notice of the reconvening
of 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 meeting
duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal
amount of the Outstanding Securities of such 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 Coupons
appertaining thereto, whether or not such Holders were present or represented
at the meeting.
Section 1505. Determination of Voting Rights; Conduct and
Adjournment of Meetings.
(a) Notwithstanding any other provisions of this Indenture, the
Trustee may make 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
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examination of proxies, certificates and other evidence of the right to vote,
and such other matters concerning the conduct of the meeting as it shall deem
appropriate. Except as otherwise permitted or required by any such
regulations, the holding of Securities shall be proved in the manner specified
in Section 104 and the appointment of any proxy shall be proved in the manner
specified in Section 104 or by having the signature of the person executing
the proxy witnessed or guaranteed by any trust company, bank or banker
authorized by Section 104 to certify to the holding of Bearer Securities.
Such regulations may provide that written instruments appointing proxies,
regular on their face, may be presumed valid and genuine without the proof
specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a
temporary chairman of the meeting, unless the meeting shall have been called
by the Company or by Holders of Securities as provided in Section 1502(b), in
which case the Company or the Holders of Securities of the series calling the
meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall
be elected by vote of the Persons entitled to vote a majority in principal
amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting, each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 of 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 1502 at which a quorum is present may be adjourned from
time to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting; and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of
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votes who shall count all votes cast at the meeting for or against any
resolution and who shall make and file with the secretary of the meeting their
verified written reports in 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 1502 and, if applicable, Section 1504. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to
the Trustee to be preserved by the Trustee, the latter to have attached
thereto the ballots voted at the meeting. Any record so signed and verified
shall be conclusive evidence of the matters therein stated.
* * * * *
This 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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed,
all as of the day and year first above written.
[SEAL] Toyota Motor Credit Corporation
Attest: By /s/ Wolfgang Jahn
Wolfgang Jahn
Assistant Secretary
By /s/ Yale Gieszl
-------------------------------
Name: Yale Gieszl
Title: Senior Vice President
[SEAL] The Chase Manhattan Bank, N.A.
as Trustee
Attest: /s/ J. D. Heany
By /s/ Kevin Fisher
------------------------------
Name: Kevin V. Fisher
Title: Second Vice President
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[O'MELVENY & MYERS LETTERHEAD]
February
22nd
1 9 9 4
871,848-068
LA1-216770.V2
Toyota Motor Credit Corporation
19001 South Western Avenue
Torrance, California 90509
Re: Debt Securities of
Toyota Motor Credit Corporation
-------------------------------
Ladies and Gentlemen:
At your request, we have examined the Registration Statement on
Form S-3 (the "Registration Statement") proposed to be filed by Toyota Motor
Credit Corporation (the "Company") with the Securities and Exchange Commission
in connection with the registration of $4,000,000,000 aggregate initial offering
price of Debt Securities (the "Debt Securities"). We have examined the
indenture, dated as of August 1, 1991, as amended and supplemented by the first
supplemental indenture, dated as of October 1, 1991, among the Company, Bankers
Trust Company and The Chase Manhattan Bank, N.A., as Trustees, (collectively,
the "Indenture) under which the Debt Securities are to be issued. We are
familiar with the proceedings taken and proposed to be taken by the Company in
connection with the authorization, registration, issuance and sale of the Debt
Securities.
Subject to the proposed additional proceedings being taken as now
contemplated by us as your counsel and as contemplated by the Indenture, as
applicable, prior to the issuance and sale of the Debt Securities, and the
execution, delivery and authentication of the Debt Securities, it is our opinion
that the Debt Securities will, upon the issuance and sale in the manner referred
to in the Registration Statement, be legally valid and binding obligations of
the Company, enforceable against the Company in accordance with their terms,
except as may be limited
Exhibit 5.1
<PAGE>
Page 2 - Toyota Motor Credit Corporation - February 22, 1994
by bankruptcy, insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally.
Please be advised that enforceability of the Debt Securities and the
Indenture is subject to the effect of 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 considered in a proceeding in equity or at law.
We consent to the use of this opinion as an exhibit to the
Registration Statement, and we further consent to the use of our name under the
caption "Legal Matters" in the Registration Statement and the Prospectus which
forms a part thereof.
Respectfully submitted,
/s/ O'Melveny & Myers
Exhibit 5.1
<PAGE>
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 (the "Prospectus")
of our report dated October 29, 1993 appearing on page 21 of Toyota Motor Credit
Corporation's Annual Report on Form 10-K for the year ended September 30, 1993.
We also consent to the incorporation by reference of our report on the Financial
Statement Schedules, which appears on page 45 of such Annual Report on Form 10-
K. We also consent to the reference to us under the heading "Experts" in such
Prospectus.
/s/ Price Waterhouse
Los Angeles, California
February 18, 1994
<PAGE>
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------------------
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE
PURSUANT TO SECTION 305(b)(2) ________________
-----------------
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
---------------
TOYOTA MOTOR CREDIT CORPORATION
(Exact name of obligor as specified in its charter)
CALIFORNIA
(State or other jurisdiction of incorporation or organization)
95-3775816
(I.R.S. Employer Identification No.)
19001 SOUTH WESTERN AVENUE
TORRANCE, CALIFORNIA
(Address principal executive offices)
90509
(Zip Code)
---------------------------------
DEBT SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System,
Washington, D. C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control with
the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect . (See Exhibit T-1 (Item 12), Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan Bank
(National Association) and The Chase Bank of New York (National
Association) to commence business and a copy of approval of
merger of said corporations, all of which documents are still
in effect. (See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437.)
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 12(a)), Registration No. 33-28806.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor is in
default. (Not applicable.)
*6. -- The consents of United States institutional trustees required by
Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or
examining authority.
- -------------------
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to which
there have been no amendments or changes.
-------------------
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 14th day of February, 1994.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
/s/ Denise Long
----------------------------
By: Denise Long,
Corporate Trust Officer
2.
<PAGE>
EXHIBIT 7
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------------------------------
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of
THE CHASE MANHATTAN BANK, N.A.
of New York in the State of New York, at the close of business on December 31, 1993, published in response to call made by
Comptroller of the Currency, under title 12, United States Code, Section 161.
CHARTER NUMBER 2370 COMPTROLLER OF THE CURRENCY NORTHEASTERN DISTRICT
STATEMENT OF RESOURCES AND LIABILITIES
ASSETS THOUSANDS
OF DOLLARS
<S> <C> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin. . . . . . . . . . . . . . . . . . . . . . . . . . . . $5,778,428
Interest-bearing balances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,431,174
Securities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,439,029
Federal funds sold and securities purchased under agreements to resell in domestic offices
of the bank and of its Edge and Agreement subsidiaries. and in IBFs:
Federal funds sold . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,982,694
Securities purchased under agreements to resell . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Loans and lease financing receivables:
Loans and leases. net of unearned income. . . . . . . . . . . . . . . . . . . . . . . . . . .$48,856,930
LESS: Allowance for loan and lease losses . . . . . . . . . . . . . . . . . . . . . . . . . . 1,065,877
LESS: Allocated transfer risk reserve . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
-------
Loans and leases, net of unearned income, allowance, and reserve . . . . . . . . . . . . . . . . . . . . . . 47,791,053
Assets held in trading accounts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,244,939
Premises and fixed assets (including capitalized leases) . . . . . . . . . . . . . . . . . . . . . . . . . . 1,617,111
Other real estate owned . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,189,024
Investments in unconsolidated subsidiaries and associated companies. . . . . . . . . . . . . . . . . . . . . 67,637
Customers' liability to this bank on acceptances outstanding . . . . . . . . . . . . . . . . . . . . . . . . 774,020
Intangible assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 354,023
Other assets . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,520,283
-----------
TOTAL ASSETS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $84,189,415
-----------
-----------
LIABILITIES
Deposits:
In domestic offices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $34,624,513
Noninterest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $13,739,371
Interest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20,885,142
-----------
In foreign offices, Edge and Agreement subsidiaries, and IBFs . . . . . . . . . . . . . . . . . . . . . 30,660,808
Noninterest-bearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $2,473,222
Interest-bearing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,187,586
----------
Federal funds purchased and securities sold under agreements to repurchase in domestic
offices of the bank and of its Edge and Agreement subsidiaries,and in IBF's:
Federal funds purchased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,829,219
Securities sold under agreements to repurchase. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 140,462
Demand notes issued to the U.S. Treasury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,000
Other borrowed money . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,618,185
Mortgage indebtedness and obligations under capitalized leases . . . . . . . . . . . . . . . . . . . . . . . 41,366
Bank's liability on acceptances, executed and outstanding. . . . . . . . . . . . . . . . . . . . . . . . . . 780,289
Subordinated notes and debentures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,360,000
Other liabilities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,697,556
----------
TOTAL LIABILITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $77,777,398
----------
Limited-life preferred stock and related surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 0
Common stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 910,494
Surplus . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,382,506
Undivided profits and capital reserves . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 920,258
Net unrealized gains on available-for-sale securities. . . . . . . . . . . . . . . . . . . . . . . . . . . . 187,683
Cumulative foreign currency translation adjustments. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,076
----------
TOTAL EQUITY CAPITAL . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,412,017
-----------
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK, AND
EQUITY CAPITAL. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $84,189,415
-----------
-----------
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above-named bank do hereby declare that this Report of
Condition is true and correct to the best of my knowledge and belief.
(Signed) Lester J. Stephens, Jr.
We, the undersigned directors, attest to the correctness of this statement of resources and liabilities. We declare that it has
been examined by us, and to the best of our knowledge and belief has been prepared in conformance with the instructions and is
true and correct.
(Signed) Thomas G. Labrecque
(Signed) Arthur F. Ryan Directors
(Signed) Richard J. Doyle
- ---------------------------------------------------------------------------------------------------------------------------------
</TABLE>
3
<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 (I.R.S. Employer
if not a U.S. national bank) Identification no.)
FOUR ALBANY STREET
NEW YORK, NEW YORK 10006
(Address of principal (Zip Code)
executive offices)
--------------------------------
TOYOTA MOTOR CREDIT CORPORATION
(Exact name of obligor as specified in the charter)
CALIFORNIA 95-3775816
(State or other jurisdiction (I.R.S. employer
of incorporation or organization) Identification no.)
19001 SOUTH WESTERN AVENUE
TORRANCE, CALIFORNIA 90509
(Address of principal (Zip Code)
executive offices)
--------------------------------------------
DEBT SECURITIES
(Title of the indenture securities)
- --------------------------------------------------------------------------------
<PAGE>
-2-
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, N.Y.
Federal Deposit Insurance Corporation Washington,D.C.
New York State Banking Department Albany, N.Y.
(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 16. LIST OF EXHIBITS.
EXHIBIT 1 - Restated Organization Certificate of Bankers Trust
Company dated August 7, 1990 and Certificate of Amendment of
the Organization Certificate of Bankers Trust Company dated
June 23, 1992 - Incorporated herein by reference to Exhibit
1 filed with Form T-1 Statement, Registration No. 33-48267.
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 - A copy of existing By-Laws of Bankers Trust Company,
dated September 21, 1993 attached hereto.
<PAGE>
-3-
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 September 30, 1993 - Incorporated herein by
reference to Exhibit 7 filed with Form T-1 Statement,
Registration No. 33-51619.
EXHIBIT 8 - Not Applicable
EXHIBIT 9 - Not Applicable
<PAGE>
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939 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 the 8th day of February, 1994.
BANKERS TRUST COMPANY
By: /s/ Valerie Dunbar
------------------------------
Valerie Dunbar
Assistant Vice President
<PAGE>
EXHIBIT 4 ANNEX B
BY-LAWS
September 21, 1993
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 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 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, with 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. 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 70 shall be eligible to be elected or re-elected a director.
<PAGE>
No Officer-Director who shall have attained the age of 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, 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 one day's notice whenever
it may be deemed proper by the Chairman of the Board or, in his 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 a members of committees
shall be fixed from time to time by resolution of the Board of Directors.
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 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.
<PAGE>
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 members 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 director's examination 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.
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.
<PAGE>
ARTICLE IV
OFFICERS
SECTION 1. The officers of the Company shall be a Chairman of the Board, a
President, one or more Vice Chairmen, one or more Executive Vice Presidents,
Managing Directors, and Senior Vice Presidents, one or more First Vice
Presidents, Vice Presidents, and General Managers, a Controller, a Treasurer, a
General Auditor, one or more Deputy Auditors, a General Credit Auditor, a
General Counsel, one or more Associate General Counsels, and a Secretary, all of
whom shall be elected by the Board of Directors, and such officers as shall from
time to time be elected by the Board of Directors or the Executive Committee or
appointed by the Chairman of the Board, or in his absence, the President.
SECTION 2. The Chairman of the Board shall be the chief executive officer of
the Company and as such 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 the powers vested by law or by these By-Laws in
them as holders of their respective officers 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.
The General Auditor shall be responsible to the Chairman of the Board and,
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. He shall perform such other duties as the
Chairman of the Board may prescribe and shall make such examinations and reports
as may be required by the Audit Committee. The General Auditor shall have unre-
stricted access to all records and premises and shall delegate such authority to
his subordinates. He shall have the duty to report to the Chairman of the Board
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
Chairman of the Board 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
program and the adequacy of the system of internal controls of the Company which
should be brought to the attention of the directors except those matters
responsibility for which has been vested in the officer in charge of Credit
Audit. Should the General Auditor deem any matter to be of special immediate
importance, he shall report thereon forthwith to the Audit Committee.
The General Credit Auditor shall be responsible to the Chairman of the Board
and, through the Audit Committee, to the Board of Directors for the systems of
internal credit audit, shall perform such other duties as the Chairman of the
Board 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.
<PAGE>
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 or any persons authorized for this purpose by the Chairman of the Board,
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 of any such authorized person; and the Board of Directors,
the Executive Committee, the Chairman of the Board or any such authorized person
may discharge any such employees and agents at will.
ARTICLE V
INDEMNIFICATION OF DIRECTORS, OFFICERS AND OTHERS
SECTION 1. The Company shall, to the fullest extend 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 judg-
ments, 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 established 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
stockholder, (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.
<PAGE>
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 established that (i) his acts were committed
in bad faith or were the results 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 or the President,
and (ii) only if and to the extent that, after making such efforts as the
Chairman of the Board or the 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 he 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
circumstances, 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.
<PAGE>
SECTION 8. A person who has been successful, on he 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.
ARTICLE VI
SEAL
SECTION 1. The Board of Directors shall provide a seal for the Company, the
counterpart dies of which shall be in charge of the Secretary of the Company and
such officers as the Chairman of the Board 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 share 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.
<PAGE>
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.
I, , [Assistant] Secretary of Bankers
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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.
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[ASSISTANT] SECRETARY
DATED:
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