▇▇▇▇ DEERE B.V.,
Issuer,
DEERE & COMPANY,
Guarantor,
and
THE CHASE MANHATTAN BANK,
Trustee
--------------------------------
INDENTURE
Dated as of ________, 2000
--------------------------------
Providing for the Issuance
of
Senior Guaranteed Debt Securities
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ARTICLE I
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, the Company and the Guarantor....................................14
Section 106 Notice to Holders; Waiver...................................................................14
Section 107 Effect of Headings and Table of Contents....................................................15
Section 108 Successors and Assigns......................................................................15
Section 109 Separability Clause.........................................................................15
Section 110 Benefits of Indenture.......................................................................15
Section 111 Governing Law...............................................................................15
Section 112 Legal Holidays..............................................................................16
Section 113 Submission to Jurisdiction; Appointment of Agent for Service of Process.....................16
Section 114 Judgment Currency...........................................................................17
ARTICLE II
SECURITIES FORMS
Section 201 Forms of Securities.........................................................................17
Section 202 Form of Trustee's Certificate of Authentication.............................................18
Section 203 Securities Issuable in Global Form..........................................................18
Section 204 Form of Guarantee...........................................................................19
ARTICLE III
THE SECURITIES
Section 301 Amount Unlimited; Issuable in Series........................................................21
Section 302 Denominations...............................................................................24
Section 303 Execution, Authentication, Delivery and Dating..............................................24
Section 304 Temporary Securities........................................................................27
Section 305 Registration, Registration of Transfer and Exchange.........................................29
Section 306 Mutilated, Destroyed, Lost and Stolen Securities............................................33
Section 307 Payment of Interest; Interest Rights Preserved; Optional Interest Reset.....................34
Section 308 Optional Extension of Maturity..............................................................37
Section 309 Persons Deemed Owners.......................................................................38
Section 310 Cancellation................................................................................39
Section 311 Computation of Interest.....................................................................39
Section 312 Currency and Manner of Payments in Respect of Securities....................................39
Section 313 Appointment and Resignation of Successor Exchange Rate Agent................................43
Section 314 CUSIP Numbers...............................................................................43
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ARTICLE IV
SATISFACTION AND DISCHARGE
Section 401 Satisfaction and Discharge of Indenture.....................................................44
Section 402 Application of Trust Funds..................................................................45
ARTICLE V
REMEDIES
Section 501 Events of Default...........................................................................45
Section 502 Acceleration of Maturity; Rescission and Annulment..........................................47
Section 503 Collection of Indebtedness and Suits for Enforcement by Trustee.............................48
Section 504 Trustee May File Proofs of Claim............................................................49
Section 505 Trustee May Enforce Claims Without Possession of Securities or Coupons......................49
Section 506 Application of Money Collected..............................................................50
Section 507 Limitation on Suits.........................................................................50
Section 508 Unconditional Right of Holders to Receive Principal, Premium and Interest...................51
Section 509 Restoration of Rights and Remedies..........................................................51
Section 510 Rights and Remedies Cumulative..............................................................51
Section 511 Delay or Omission Not Waiver................................................................51
Section 512 Control by Holders of Securities............................................................51
Section 513 Waiver of Past Defaults.....................................................................52
Section 514 Waiver of Stay or Extension Laws............................................................52
ARTICLE VI
THE TRUSTEE
Section 601 Notice of Defaults..........................................................................52
Section 602 Certain Rights of Trustee...................................................................53
Section 603 Not Responsible for Recitals or Issuance of Securities......................................54
Section 604 May Hold Securities.........................................................................54
Section 605 Money Held in Trust.........................................................................54
Section 606 Compensation and Reimbursement..............................................................55
Section 607 Corporate Trustee Required; Eligibility.....................................................55
Section 608 Resignation and Removal; Appointment of Successor...........................................56
Section 609 Acceptance of Appointment by Successor......................................................57
Section 610 Merger, Conversion, Consolidation or Succession to Business.................................58
Section 611 Appointment of Authenticating Agent.........................................................58
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY
TRUSTEE, GUARANTOR AND COMPANY
Section 701 Disclosure of Names and Addresses of Holders................................................60
Section 702 Reports by Trustee..........................................................................60
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Section 703 Reports by Company and Guarantor............................................................61
Section 704 Calculation of Original Issue Discount......................................................61
ARTICLE VIII
CONSOLIDATION, MERGER,
CONVEYANCE OR TRANSFER
Section 801 Company or Guarantor May Consolidate, etc., Only on Certain Terms...........................61
Section 802 Successor Person Substituted................................................................62
Section 803 Assumption by Guarantor.....................................................................63
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 901 Supplemental Indentures Without Consent of Holders..........................................63
Section 902 Supplemental Indentures With Consent of Holders.............................................65
Section 903 Execution of Supplemental Indentures........................................................66
Section 904 Effect of Supplemental Indentures...........................................................66
Section 905 Conformity with Trust Indenture Act.........................................................66
Section 906 Reference in Securities to Supplemental Indentures..........................................67
ARTICLE X
COVENANTS
Section 1001 Payment of Principal, Premium and Interest..................................................67
Section 1002 Maintenance of Office or Agency.............................................................67
Section 1003 Money for Securities Payments to Be Held in Trust...........................................70
Section 1004 Additional Amounts..........................................................................71
Section 1005 Statement as to Compliance..................................................................72
Section 1006 Limitation on Liens.........................................................................72
Section 1007 Limitation on Sale and Lease-back Transactions..............................................77
Section 1008 Waive of Certain Covenants..................................................................77
ARTICLE XI
REDEMPTION OF SECURITIES
Section 1101 Applicability of Article....................................................................78
Section 1102 Election to Redeem; Notice to Transfer......................................................78
Section 1103 Section by Trustee of Securities to Be Redeemed.............................................78
Section 1104 Notice of Redemption........................................................................78
Section 1105 Deposit of Redemption Price.................................................................80
Section 1106 Securities Payable on Redemption Date.......................................................80
Section 1107 Securities Redeemed in Part.................................................................81
Section 1108 Optional Redemption Due to Changes in Tax Treatment.........................................81
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ARTICLE XII
SINKING FUNDS
Section 1201 Applicability of Article....................................................................82
Section 1202 Satisfaction of Sinking Fund Payments with Securities.......................................83
Section 1203 Redemption of Securities for Sinking Funds..................................................83
ARTICLE XIII
REPAYMENT AT THE
OPTION OF HOLDERS
Section 1301 Applicability of Article....................................................................83
Section 1302 Repayment of Securities.....................................................................84
Section 1303 Exercise of Option..........................................................................84
Section 1304 When Securities Presented for Repayment Become Due and Payable..............................84
Section 1305 Securities Repaid in Part...................................................................85
ARTICLE XIV
DEFEASANCE AND
COVENANT DEFEASANCE
Section 1401 Applicability of Article; Company's and Guarantor's Option to Effect Defeasance
or Covenant Defeasance......................................................................86
Section 1402 Defeasance and Discharge....................................................................86
Section 1403 Covenant Defeasance.........................................................................86
Section 1404 Conditions to Defeasance or Covenant Defeasance.............................................87
Section 1405 Deposited Money and Government Obligations to Be Held in Trust;
Other Miscellaneous Provisions..............................................................89
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
Section 1501 Purposes for Which Meetings May Be Called...................................................90
Section 1502 Call, Notice and Place of Meetings..........................................................90
Section 1503 Persons Entitled to Vote at Meetings........................................................90
Section 1504 Quorum; Action..............................................................................91
Section 1505 Determination of Voting Rights; Conduct and Adjournment of Meetings.........................92
Section 1506 Counting Votes and Recording Action of Meetings.............................................93
ARTICLE XVI
GUARANTEE OF SECURITIES
Section 1601 Guarantee...................................................................................93
Section 1602 Execution of Guarantee......................................................................95
Exhibit A Forms of Certification
INDENTURE, dated as of [_____], 2000, between ▇▇▇▇ DEERE B.V.,
a corporation duly organized and existing under the laws of The Netherlands
(hereinafter called the "Company"), having its principal office at ▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇, ▇▇-▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇, DEERE & COMPANY, a Delaware corporation
(hereinafter called the "Guarantor"), having its principal office at ▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and THE CHASE MANHATTAN BANK, a New York
banking corporation, Trustee (hereinafter called the "Trustee"), having its
Corporate Trust Office at Global Trust Services, ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇ ▇▇▇▇▇.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for
its lawful purposes senior guaranteed debt securities (hereinafter called the
"Securities") evidencing its unsecured and unsubordinated indebtedness, which
may or may not be convertible into or exchangeable for any securities of any
Person (including the Company), and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Securities, unlimited as to principal amount, to bear such rates of interest, to
mature at such times and to have such other provisions as shall be fixed as
hereinafter provided.
This Indenture is subject to the provisions of the Trust
Indenture Act of 1939 (the "TIA"), as amended, that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
All things necessary to make this Indenture a valid agreement
of the Company, in accordance with its terms, have been done.
RECITALS OF THE GUARANTOR
For value received, the Guarantor has duly authorized the
execution and delivery of this Indenture to provide for the Guarantee of the
Securities provided for herein.
All things necessary to make this Indenture a valid agreement
of the Guarantor, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Securities and
coupons, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101 DEFINITIONS. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under the
Trust Indenture Act;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other subdivision.
Certain terms, used principally in Article II, Article III,
Article V, Article VI and Article X, are defined in those Articles.
"ACT", when used with respect to any Holder, has the meaning
specified in Section 104.
"ADDITIONAL AMOUNTS" has the meaning specified in Section
1004.
"AFFILIATE" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"AUTHENTICATING AGENT" means any authenticating agent
appointed by the Trustee pursuant to Section 611.
"AUTHORIZED NEWSPAPER" means a newspaper, in the English
language or in an official language of the country of publication, customarily
published on each Business Day,
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whether or not published on Saturdays, Sundays or holidays, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place. Where successive publications are
required to be made in Authorized Newspapers, the successive publications may
be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"BEARER SECURITY" means any Security established pursuant to
Section 201 which is payable to bearer.
"BOARD OF DIRECTORS" means either the board of directors or
the executive committee of the Company or the Guarantor, as the case may be, or
any committee of either board duly authorized to act hereunder.
"BOARD RESOLUTION" means a copy of one or more resolutions
certified by the Secretary or an Assistant Secretary of the Company or the
Guarantor, as applicable, to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, and
delivered to the Trustee.
"BUSINESS DAY", when used with respect to any Place of Payment
or any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
particular location are authorized or obligated by law or executive order to
close.
"CLEARSTREAM LUXEMBOURG" means Clearstream Banking, societe
anonyme (formerly Cedelbank), or its successor.
"COMMISSION" means the Securities and Exchange Commission, as
from time to time constituted, created under the Securities Exchange Act of
1934, or, if at any time after execution of this instrument such Commission is
not existing and performing the duties now assigned to it under the Trust
Indenture Act, then the body performing such duties on such date.
"COMPANY" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"COMPANY REQUEST" and "COMPANY ORDER" mean, respectively, a
written request or order signed in the name of the Company by the principal
executive officer, principal financial officer or principal accounting officer
of the Company, and delivered to the Trustee.
"CONVERSION DATE" has the meaning specified in Section 312(d).
"CONVERSION EVENT" means the cessation of use of (i) a Foreign
Currency both by the government of the country which issued such currency and
for the settlement of transactions by a central bank or other public
institutions of or within the international banking community,
3
(ii) the EURO both within the European Monetary System and for the settlement
of transactions by public institutions of or within the European Communities
or (iii) any currency unit (or composite currency) other than the EURO for
the purposes for which it was established.
"CORPORATE TRUST OFFICE" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at ▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Capital Markets Fiduciary Services.
"CORPORATION" includes corporations and limited liability
companies [and, except for purposes of Article III], associations, companies and
business trusts.
"COUPON" means any interest coupon appertaining to a Bearer
Security.
"CURRENCY" means any currency or currencies, composite
currency or currency unit or currency units, including, without limitation, the
euro, issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"DEFAULT" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 307.
"DOLLAR" or "$" means a dollar or other equivalent unit in
such coin or currency of the United States of America as at the time shall be
legal tender for the payment of public and private debts.
"ELECTION DATE" has the meaning specified in Section 312(h).
"EURO" means the European Currency Units as defined and
revised from time to time by the Council of the European Communities.
"EUROCLEAR" means ▇▇▇▇▇▇ Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"EUROPEAN COMMUNITIES" means the European Union, the European
Coal and Steel Community and the European Atomic Energy Community.
"EUROPEAN MONETARY SYSTEM" means the European Monetary System
established by the Resolution of December 5, 1978 of the Council of the European
Communities.
"EVENT OF DEFAULT" has the meaning specified in Article V.
4
"EXCHANGE RATE AGENT", with respect to Securities of or within
any series, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"EXCHANGE RATE OFFICER'S CERTIFICATE" means a certificate
setting forth (i) the applicable Market Exchange Rate or the applicable bid
quotation and (ii) the Dollar or Foreign Currency amounts of principal (and
premium, if any) and interest, if any (on an aggregate basis and on the basis of
a Security having the lowest denomination principal amount determined in
accordance with Section 302 in the relevant currency or currency unit), payable
with respect to a Security of any series on the basis of such Market Exchange
Rate or the applicable bid quotation signed by the principal executive officer,
principal financial officer or principal accounting officer of the Company or
the Treasurer, any Vice President or any Assistant Treasurer of the Guarantor,
as applicable.
"FOREIGN CURRENCY" means any Currency, including, without
limitation, the euro, issued by the government of one or more countries other
than the United States of America or by any recognized confederation or
association of such governments.
"GOVERNMENT OBLIGATIONS" means securities which are (i) direct
obligations of the United States of America or the government which issued the
Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of
a Person controlled or supervised by and acting as an agency or instrumentality
of the United States of America or such government which issued the Foreign
Currency in which the Securities of such series are payable, the payment of
which is unconditionally guaranteed as a full faith and credit obligation by the
United States of America or such other government, which, in either case, are
not callable or redeemable at the option of the issuer thereof, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such Government Obligation or a specific payment of interest on
or principal of any such Government Obligation held by such custodian for the
account of the holder of a depository receipt; PROVIDED that (except as required
by law) such custodian is not authorized to make any deduction from the amount
payable to the holder of such depository receipt from any amount received by the
custodian in respect of the Government Obligation or the specific payment of
interest on or principal of the Government Obligation evidenced by such
depository receipt.
"GUARANTEE" means the unconditional guarantee by the Guarantor
of any Security of any series authenticated and delivered pursuant to this
Indenture either (i) if specified, as contemplated by Section 301, to be
applicable to Securities of such series and not endorsed on such Securities
pursuant to Article XVI hereof, or (ii) in all other cases, endorsed on such
Security.
"GUARANTOR" means the Person named as the "Guarantor" 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
"Guarantor" shall mean such successor Person.
5
"GUARANTOR REQUEST" and "GUARANTOR ORDER" mean, respectively,
a written request or order signed in the name of the Guarantor by the Chairman,
the President or a Vice President, and by the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary, of the Guarantor, and delivered to the
Trustee.
"HOLDER" means, in the case of a Registered Security, the
Person in whose name a Security is registered in the Security Register and, in
the case of a Bearer Security, the bearer thereof and, when used with respect to
any coupon, shall mean the bearer thereof.
"INDENTURE" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; PROVIDED, HOWEVER, that, if at any time more than
one Person is acting as Trustee under this instrument, "Indenture" shall mean,
with respect to any one or more series of Securities for which such Person is
Trustee, this instrument as originally executed or as it may from time to time
be supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms of
the or those particular series of Securities for which such Person is Trustee
established as contemplated by Section 301, exclusive, however, of any
provisions or terms which relate solely to other series of Securities for which
such Person is not Trustee, regardless of when such terms or provisions were
adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person had
become such Trustee but to which such Person, as such Trustee, was not a party.
"INDEXED SECURITY" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are determined
by reference to prices, changes in prices, or differences between prices, of
securities, Currencies, intangibles, goods, articles or commodities or by such
other objective price, economic or other measures as are specified in Section
301 hereof.
"Intercompany Debtor" has the meaning specified in Section
1108.
"INTEREST", when used with respect to an Original Issue
Discount Security which by its terms bears interest only after Maturity, shall
mean interest payable after Maturity.
"INTEREST PAYMENT DATE", when used with respect to any
Security, means the Stated Maturity of an installment of interest on such
Security.
"MARKET EXCHANGE RATE" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (i) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of Dollars
into any Foreign Currency, the noon buying rate for such Foreign Currency for
cable transfers quoted in
6
New York City as certified for customs purposes by the Federal Reserve Bank
of New York and (iii) for any conversion of one Foreign Currency into Dollars
or another Foreign Currency, the spot rate at noon local time in the relevant
market at which, in accordance with normal banking procedures, the Dollars or
Foreign Currency into which conversion is being made could be purchased with
the Foreign Currency from which conversion is being made from major banks
located in either New York City, London or any other principal market for
Dollars or such purchased Foreign Currency, in each case determined by the
Exchange Rate Agent. Unless otherwise specified with respect to any
Securities pursuant to Section 301, in the event of the unavailability of any
of the exchange rates provided for in the foregoing clauses (i), (ii) and
(iii), the Exchange Rate Agent shall use, in its sole discretion and without
liability on its part, such quotation of the Federal Reserve Bank of New York
as of the most recent available date, or quotations from one or more major
banks in New York City, London or other principal market for such currency or
currency unit in question, or such other quotations as the Exchange Rate
Agent shall deem appropriate. Unless otherwise specified by the Exchange Rate
Agent, if there is more than one market for dealing in any currency or
currency unit by reason of foreign exchange regulations or otherwise, the
market to be used in respect of such currency or currency unit shall be that
upon which a nonresident issuer of securities designated in such currency or
currency unit would purchase such currency or currency unit in order to make
payments in respect of such securities.
"MATURITY", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment, notice of exchange or conversion, or otherwise.
"OFFICERS' CERTIFICATE" means a certificate signed by the
principal executive officer, principal financial officer or the principal
accounting officer of the Company or by the Chairman, the President or any Vice
President and by the Treasurer, an Assistant Treasurer, the Comptroller or an
Assistant Comptroller, the Secretary or an Assistant Secretary of the Guarantor,
as applicable, 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 counsel for the Company or the Guarantor or who may be an employee of or
other counsel for the Company or the Guarantor.
"ORIGINAL ISSUE DISCOUNT SECURITY" means a Security issued
pursuant to this Indenture which provides for an amount less than the principal
amount thereof to be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502.
"OUTSTANDING", when used with respect to Securities, means, as
of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
Security Registrar or delivered to the Trustee or Security Registrar for
cancellation;
7
(ii) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the necessary
amount has been theretofore deposited with the Trustee or any Paying Agent
(other than the Company or the Guarantor) in trust or set aside and
segregated in trust by the Company or the Guarantor (if the Company or the
Guarantor shall act as its own, or authorize the Guarantor to act as,
Paying Agent) for the Holders of such Securities and any coupons
appertaining thereto, PROVIDED that, if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made;
(iii) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company or the Guarantor has
effected defeasance and/or covenant defeasance as provided in Article XIV;
and
(iv) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Securities are held by a bona
fide purchaser in whose hands such Securities are valid obligations of the
Company;
PROVIDED, HOWEVER, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security or Indexed Security, the Dollar equivalent as
of such date of original issuance of the amount determined as provided in clause
(i) above or (iii) below, respectively) of such Security, (iii) the principal
amount of any Indexed Security that may be counted in making such determination
or calculation and that shall be deemed outstanding for such purpose shall be
equal to the principal face amount of such Indexed Security at original
issuance, unless otherwise provided with respect to such Security pursuant to
Section 301, and (iv) Securities owned by the Company or the Guarantor or any
other obligor upon the Securities or any Affiliate of the Company or the
Guarantor or of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in making such calculation or in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Securities which the
Trustee actually knows to be so
8
owned shall be so disregarded. Securities so owned which have been pledged in
good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to
such Securities and that the pledgee is not the Company or the Guarantor or
any other obligor upon the Securities or any Affiliate of the Company or the
Guarantor or of such other obligor.
"PAYING AGENT" means any Person authorized by the Company to
pay the principal of (or premium, if any) or interest, if any, on any Securities
or coupons on behalf of the Company.
"PERSON" means any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization or
government or any agency or political subdivision thereof.
"PLACE OF PAYMENT", when used with respect to the Securities
of or within any series, means the place or places where the principal of (and
premium, if any) and interest, if any, on such Securities are payable as
specified and as contemplated by Sections 301 and 1002.
"PREDECESSOR SECURITY" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"REDEMPTION DATE", when used with respect to any Security to
be redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"REDEMPTION PRICE", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"REGISTERED SECURITY" shall mean any Security which is
registered in the Security Register.
"REGULAR RECORD DATE" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"REPAYMENT DATE" means, when used with respect to any Security
to be repaid at the option of the Holder, the date fixed for such repayment by
or pursuant to this Indenture.
"REPAYMENT PRICE" means, when used with respect to any
Security to be repaid at the option of the Holder, the price at which it is to
be repaid by or pursuant to this Indenture.
9
"RESPONSIBLE OFFICER", when used with respect to the Trustee,
means any officer of the Trustee assigned by the Trustee to administer its
corporate trust matters.
"SECURITY" or "SECURITIES" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; PROVIDED, HOWEVER,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"SECURITY REGISTER" and "SECURITY REGISTRAR" have the
respective meanings specified in Section 305.
"SPECIAL RECORD DATE" for the payment of any Defaulted
Interest on the Registered Securities of or within any series means a date fixed
by the Trustee pursuant to Section 307.
"STATED MATURITY", when used with respect to any Security or
any installment of principal thereof or interest thereon or any Additional
Amounts with respect thereto, means the date specified in such Security or a
coupon representing such installment of interest as the fixed date on which the
principal of such Security or such installment of principal or interest is, or
such Additional Amounts are, due and payable, as such date may be extended
pursuant to the provisions of Section 308.
"SUBSIDIARY" means any corporation a majority of the
outstanding voting stock of which is owned, directly or indirectly, by the
Guarantor or by one or more other Subsidiaries of the Guarantor. For the
purposes of this definition, "voting stock" means stock having voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"TRUST INDENTURE ACT" or "TIA" means the Trust Indenture Act
of 1939 as in force at the date as of which this Indenture was executed, except
as provided in Section 905.
"TRUSTEE" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
PROVIDED, HOWEVER, that if at any time there is more than one such Person,
"Trustee" as used with respect to the Securities of any series shall mean only
the Trustee with respect to Securities of that series.
"UNITED STATES" means, unless otherwise specified with respect
to any Securities pursuant to ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇
(including the states and the District of Columbia), its territories, its
possessions and other areas subject to its jurisdiction.
10
"UNITED STATES PERSON" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate or trust the income of which is subject to United States federal income
taxation regardless of its source.
"VALUATION DATE" has the meaning specified in Section 312(c).
"YIELD TO MATURITY" means the yield to maturity, computed at
the time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102 COMPLIANCE CERTIFICATES AND OPINIONS. Except as otherwise
expressly provided in this Indenture, upon any application or request by the
Company or the Guarantor to the Trustee to take any action under any
provision of this Indenture, the Company or the Guarantor, as the case may
be, shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with and an Opinion of Counsel stating
that in the opinion of such counsel all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required
by any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1005) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is necessary
to enable him to express an informed opinion as to whether or not such
condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103 FORM OF DOCUMENTS DELIVERED TO TRUSTEE. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified
by, or covered by the opinion of, only one such Person, or that they be so
certified or covered by only one document, but one such Person may
11
certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any certificate or opinion of an officer of the Company or the
Guarantor may be based, insofar as it relates to legal matters, upon an Opinion
of Counsel, or a certificate or representations by counsel, unless such officer
knows, or in the exercise of reasonable care should know, that the opinion,
certificate or representations with respect to the matters upon which his
certificate or opinion is based are erroneous. Any such Opinion of Counsel or
certificate or representations may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company or the Guarantor, as the case may be, stating that the
information as to such factual matters is in the possession of the Company or
the Guarantor, as the case may be, unless such counsel knows, or in the exercise
of reasonable care should know, that the certificate or opinion or
representations as to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104 ACTS OF HOLDERS. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of the Outstanding Securities of all series
or one or more series, as the case may be, may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such
Holders in person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders of Securities of such series may,
alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article
XV, 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 and the Guarantor.
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, the
Company and the Guarantor and any agent of the Trustee, the Company or the
Guarantor, 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.
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(b) The fact and date of the execution of any such
instrument or writing, or the authority of the Person executing the same, may be
proved in any manner that the Trustee deems reasonably sufficient.
(c) The ownership of Registered Securities shall be proved
by the Security Register.
(d) The ownership of Bearer Securities may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary reasonably
acceptable to the Company and the Guarantor, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee, the Company and the Guarantor may assume that such
ownership of any Bearer Security continues until (1) another certificate or
affidavit bearing a later date issued in respect of the same Bearer Security is
produced, or (2) such Bearer Security is produced to the Trustee by some other
Person, or (3) such Bearer Security is surrendered in exchange for a Registered
Security, or (4) such Bearer Security is no longer Outstanding. The ownership of
Bearer Securities may also be proved in any other manner that the Trustee deems
sufficient.
(e) If the Company or the Guarantor shall solicit from the
Holders of Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company or the Guarantor, as the case
may be, may, at its option, in or pursuant to an applicable Board Resolution,
fix in advance a record date for the determination of Holders entitled to give
such request, demand, authorization, direction, notice, consent, waiver or other
Act, but neither the Company nor the Guarantor shall have any obligation to do
so. Notwithstanding TIA Section 316(c), such record date shall be the record
date specified in or pursuant to such Board Resolution, which shall be a date
not earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
PROVIDED that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than eleven months after the
record date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange
13
therefor or in lieu thereof in respect of anything done, omitted or suffered
to be done by the Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent, the Company or the Guarantor in reliance thereon,
whether or not notation of such action is made upon such Security.
SECTION 105 NOTICES, ETC., TO TRUSTEE, THE COMPANY AND THE GUARANTOR. Any
request, demand, authorization, direction, notice, consent, waiver or Act of
Holders or other document provided or permitted by this Indenture to be made
upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company or the
Guarantor shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee at its Corporate
Trust Office, Attention: USA Service Delivery, or
(2) the Company or the Guarantor by the Trustee or by any
Holder shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company or the Guarantor, as the case may be, addressed to
it at the address of its principal office specified in the first paragraph
of this Indenture or at any other address previously furnished in writing
to the Trustee by the Company or the Guarantor, as the case may be.
SECTION 106 NOTICE TO HOLDERS; WAIVER. Where this Indenture provides for
notice of any event to Holders of Registered Securities by the Company, the
Guarantor or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his address
as it appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice.
In any case where notice to Holders of Registered Securities is given by
mail, neither the failure to mail such notice, nor any defect in any notice
so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders of Registered Securities or the
sufficiency of any notice to Holders of Bearer Securities given as provided
herein. Any notice mailed to a Holder in the manner herein prescribed shall
be conclusively deemed to have been received by such Holder, whether or not
such Holder actually receives such notice.
If by reason of the suspension of or irregularities in regular
mail service or by reason of any other cause it shall be impracticable to give
such notice by mail, then such notification to Holders of Registered Securities
as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given if published in an Authorized Newspaper in
The City of New York and in such other city or cities as may be specified in
such Securities on a Business Day, such publication to be not later than the
latest date, and not earlier than the earliest date, prescribed for the giving
of such notice. Any such
14
notice shall be deemed to have been given on the date of such publication or,
if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to Holders of Bearer Securities as provided above, nor any defect in
any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
Any request, demand, authorization, direction, notice, consent
or waiver required or permitted under this Indenture shall be in the English
language, except that, if the Company or the Guarantor, as the case may be, so
elects, any published notice may be in an official language of the country of
publication.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107 EFFECT OF HEADINGS AND TABLE OF CONTENTS. The Article and
Section headings herein and the Table of Contents are for convenience only
and shall not affect the construction hereof.
SECTION 108 SUCCESSORS AND ASSIGNS. All covenants and agreements in this
Indenture by the Company or the Guarantor shall bind their respective successors
and assigns, whether so expressed or not.
SECTION 109 SEPARABILITY CLAUSE. In case any provision in this Indenture
or in any Security or coupon or any Guarantee shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110 BENEFITS OF INDENTURE. Nothing in this Indenture or in the
Securities or coupons or any Guarantee, express or implied, shall give to any
Person, other than the parties hereto, any Security Registrar, any Paying Agent,
any Authenticating Agent and their successors hereunder and the Holders any
benefit or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111 GOVERNING LAW. This Indenture, the Securities and coupons, and
the Guarantee shall be governed by and construed in accordance with the law
of the State of New York. This Indenture is subject to the provisions of the
Trust Indenture Act that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
15
SECTION 112 LEGAL HOLIDAYS. In any case where any Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity
or Maturity of any Security shall not be a Business Day at any Place of
Payment, then (notwithstanding any other provision of this Indenture or any
Security or coupon other than a provision in the Securities of any series
which specifically states that such provision shall apply in lieu of this
Section), payment of principal (or premium, if any) or interest, if any, need
not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date, Repayment
Date or sinking fund payment date, or at the Stated Maturity or Maturity;
PROVIDED that no interest shall accrue on the amount so payable for the
period from and after such Interest Payment Date, Redemption Date, Repayment
Date, sinking fund payment date, Stated Maturity or Maturity, as the case may
be.
SECTION 113 SUBMISSION TO JURISDICTION; APPOINTMENT OF AGENT FOR SERVICE OF
PROCESS. The Company hereby appoints CT Corporation System acting through its
office at ▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ as its authorized agent (the
"Authorized Agent") upon which process may be served in any legal action or
proceeding against the Company with respect to its obligations under this
Indenture or the Securities of any series, instituted in any federal or state
court in the Borough of Manhattan, The City of New York by the Holder of any
Security and the Company agrees that service of process upon such Authorized
Agent, together with written notice of said service to the Company by the
Person serving the same addressed as provided in Section 105, shall be deemed
in every respect effective service of process upon the Company in any such
legal action or proceeding. The Company hereby irrevocably submits to the
non-exclusive jurisdiction of any such court in respect of any such legal
action or proceeding and waives any objection it may have to the laying of
the venue of any such legal action or proceeding. Such designation shall be
irrevocable until all amounts in respect of the principal of and any premium
and interest due and to become due on or in respect of all the Securities
issued under this Indenture have been paid by the Company or the Guarantor,
as the case may be, to the Trustee pursuant to the terms hereof, the
Securities and the Guarantee. Notwithstanding the foregoing, the Company
reserves the right to appoint another Person located or with an office in the
Borough of Manhattan, The City of New York, selected in its discretion, as a
successor Authorized Agent, and upon acceptance of such consent to service of
process by such a successor the designation of the prior Authorized Agent
shall terminate. The Company shall give notice to the Trustee and all Holders
of the designation by it of a successor Authorized Agent. If for any reason
CT Corporation System ceases to be able to act as the Authorized Agent or to
have an address in the Borough of Manhattan, The City of New York, the
Company will appoint a successor Authorized Agent in accordance with the
preceding sentence. The Company further agrees to take any and all action,
including the filing of any and all documents and instruments as may be
necessary to continue such designation of such agent in full force and effect
until this Indenture has been satisfied and discharged. Service of process
upon the Authorized Agent addressed to it at the address set forth above, as
such address may be changed within the Borough of Manhattan, The City of New
York by notice given by the Authorized Agent to the Trustee, together with
written notice of such service mailed or delivered to the Company shall be
deemed, in every respect, effective service of process on the Company.
16
Section 116. Judgment Currency.
The Company agrees, to the fullest extent that it may effectively do
so under applicable law, that (a) if for the purpose of obtaining judgment in
any court it is necessary to convert the sum due in respect of the principal
of, or premium or interest, if any, or Additional Amounts on the Securities
of any series (the "Required Currency") into a currency in which a judgment
will be rendered (the "Judgment Currency"), the rate of exchange used shall
be the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the
Judgment Currency on the New York Banking Day preceding that on which a final
unappealable judgment is given and (b) its obligations under this Indenture
to make payments in the Required Currency (i) shall not be discharged or
satisfied by any tender, or any recovery pursuant to any judgment (whether or
not entered in accordance with clause (a)), in any currency other than the
Required Currency, except to the extent that such tender or recovery shall
result in the actual receipt, by the payee, of the full amount of the
Required Currency expressed to be payable in respect of such payments, (ii)
shall be enforceable as an alternative or additional cause of action for the
purpose of recovering in the Required Currency the amount, if any, by which
such actual receipt shall fall short of the full amount of the Required
Currency so expressed to be payable and (iii) shall not be affected by
judgment being obtained for any other sum due under this Indenture. For
purposes of the foregoing, "New York Banking Day" means any day except a
legal holiday in The City of New York.
ARTICLE II
SECURITIES FORMS
SECTION 201 FORMS OF SECURITIES. The Registered Securities, if any, of each
series and the Bearer Securities, if any, of each series and related coupons
shall be in substantially the forms as shall be established in one or more
indentures supplemental hereto or approved from time to time by or pursuant
to a Board Resolution in accordance with Section 301, shall have such
appropriate insertions, omissions, substitutions and other variations as are
required or permitted by this Indenture or any indenture supplemental hereto,
and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company or
the Guarantor may deem appropriate and as are not inconsistent with the
provisions of this Indenture, or as may be required to comply with any law or
with any rule or regulation made pursuant thereto or with any rule or
regulation of any stock exchange on which the Securities may be listed, or to
conform to usage.
Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
If Article XVI is to be applicable to Securities of any
series, established as contemplated by Section 301, then Securities of each such
series shall bear a Guarantee in substantially the form set forth in Section
204. For any other series of Securities, the Guarantee shall be endorsed on the
Securities and shall be substantially in the form established by or pursuant to
Board Resolutions of the Guarantor in accordance with Section 301 or one or more
17
indentures supplemental hereto. Notwithstanding the foregoing, the Guarantee
or the Guarantees to be endorsed on the Securities of any series may have
such appropriate insertions, omissions, substitutions and other corrections
from the forms thereof referred to above as are required or permitted by this
Indenture and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith,
be determined by the directors or officers delivering the same, in each case
as evidenced by such delivery.
The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
SECTION 202 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION. Subject to Section
611, the Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By
Authorized Officer
SECTION 203 SECURITIES ISSUABLE IN GLOBAL FORM. If Securities of or within a
series are issuable in global form, as specified as contemplated by Section
301, then, notwithstanding clause (8) of Section 301 and the provisions of
Section 302, any such Security shall represent such of the Outstanding
Securities of such series as shall be specified therein and may provide that
it shall represent the aggregate amount of Outstanding Securities of such
series from time to time endorsed thereon and that the aggregate amount of
Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a
Security in global form to reflect the amount, or any increase or decrease in
the amount, of Outstanding Securities represented thereby shall be made by
the Trustee in such manner and upon instructions given by such Person or
Persons as shall be specified therein or in the Company Order to be delivered
to the Trustee pursuant to Section 303 or 304. Subject to the provisions of
Section 303 and, if applicable, Section 304, the Trustee shall deliver and
redeliver any Security in permanent global form in the manner and upon
instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or 304
has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement, delivery or redelivery of a Security in global
form shall be in
18
writing but need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel.
The provisions of the last sentence of the seventh paragraph
of Section 303 shall apply to any Security represented by a Security in global
form if such Security was never issued and sold by the Company and the Company
delivers to the Trustee the Security in global form together with written
instructions (which need not comply with Section 102 and need not be accompanied
by an Opinion of Counsel) with regard to the reduction in the principal amount
of Securities represented thereby, together with the written statement
contemplated by the last sentence of the seventh paragraph of Section 303.
Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if any, on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 309 and except as
provided in the preceding paragraph, the Company, the Guarantor, the Trustee and
any agent of the Company, the Guarantor and the Trustee shall treat as the
Holder of such principal amount of Outstanding Securities represented by a
permanent global Security (i) in the case of a permanent global Security in
registered form, the Holder of such permanent global Security in registered
form, or (ii) in the case of a permanent global Security in bearer form,
Euroclear or Clearstream Luxembourg.
SECTION 204 FORM OF GUARANTEE. The Guarantee afforded by Article XVI shall be
endorsed on the Securities of any applicable series substantially as follows:
For value received, Deere & Company, a corporation duly
organized and existing under the laws of the State of Delaware (herein called
the "Guarantor", which term includes any successor Person under the Indenture
(the "Indenture") referred to in the Security on which this Guarantee is
endorsed), has unconditionally guaranteed, pursuant to the terms of the
Guarantee contained in Article XVI of the Indenture, the due and punctual
payment of the principal of and any premium and interest on such Security, when
and as the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of such Security and the Indenture.
All payments pursuant to this Guarantee shall be made
without withholding or deduction for, or on account of, any present or future
taxes, duties, assessments or governmental charges of whatever nature imposed
or levied by or on behalf of The Netherlands or the jurisdiction of
organization of any successor Company or any political subdivision or taxing
authority thereof or therein, unless such taxes, duties, assessments or
governmental charges are required by The Netherlands or such other
jurisdiction or any such subdivision or authority to be withheld or deducted.
In that event, the Guarantor will pay such Additional Amounts as will result
(after deduction of such taxes, duties, assessments or governmental charges
and any additional taxes, duties, assessments or governmental charges payable
in respect of such) in the
19
payment to the Holder of the Security on which this Guarantee is endorsed of
the amounts which would have been payable in respect of the Guarantee thereof
had no such withholding or deduction been required, subject to certain
exceptions as set forth in Article X of the Indenture.
Subject to certain limitations in the Indenture, at any
time when the Guarantor is not subject to Section 13 or 15(d) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), nor exempt
from reporting requirements pursuant to Rule 12g3-2(b) under the Exchange
Act, upon the request of a Holder of a Security, the Guarantor will promptly
furnish or cause to be furnished Rule 144A Information (as defined below) to
such Holder, or to a prospective purchaser of a Security designated by such
Holder in order to permit compliance by such Holder with Rule 144A under the
Securities Act of 1933 (the "Securities Act"). "Rule 144A Information" shall
be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act (or any successor provision thereto).
The obligations of the Guarantor to the Holders of the
Securities and to the Trustee pursuant to the Guarantee and the Indenture are
expressly set forth in Article XVI of the Indenture, and reference is hereby
made to such Article and Indenture for the precise terms of the Guarantee.
The Guarantee shall not be valid or obligatory for any
purpose until the certificate of authentication on the Security upon which
this Guarantee is endorsed shall have been executed by the Trustee under the
Indenture by the manual signature of one of its authorized signatories.
Capitalized terms used herein and not otherwise defined
herein have the meanings specified in the Indenture.
IN WITNESS WHEREOF, the Guarantor has caused this
instrument to be duly executed under its corporate seal.
Dated:
DEERE & COMPANY
By:
--------------------------------
Name:
Title:
Attest:
.............................
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ARTICLE III
THE SECURITIES
SECTION 301 AMOUNT UNLIMITED; ISSUABLE IN SERIES. The aggregate principal amount
of Securities which may be authenticated and delivered under this Indenture is
unlimited.
The Securities shall rank equally and PARI PASSU and may be
issued in one or more series. There shall be established in one or more Board
Resolutions or pursuant to authority granted by one or more Board Resolutions
and, subject to Section 303, set forth, or determined in the manner provided, in
an Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be determined from time to
time by the Company with respect to unissued Securities of the series when
issued from time to time):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107 or
1305);
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal of the
Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined, the
Interest Payment Dates on which such interest will be payable and the
Regular Record Date, if any, for the interest payable on any Registered
Security on any Interest Payment Date, or the method by which such date
shall be determined, and the basis upon which such interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(5) the place or places, if any, other than or in addition
to the Borough of Manhattan, The City of New York, where the principal of
(and premium, if any) and interest and Additional Amounts, if any, on
Securities of the series shall be payable, any Registered Securities of
the series may be surrendered for registration of transfer, Securities of
the series may be surrendered for exchange, where Securities of that
series that are convertible or exchangeable may be surrendered for
conversion or exchange, as
21
applicable, and where notices or demands to or upon the Company in respect
of the Securities of the series and this Indenture may be served;
(6) the period or periods within which, the price or prices
at which, the Currency or Currencies in which, and other terms and
conditions upon which Securities, of the series may be redeemed, in whole
or in part, at the option of the Company, if the Company is to have the
option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the period
or periods within which or the date or dates on which, the price or prices
at which, the Currency or Currencies in which, and other terms and
conditions upon which, Securities of the series shall be redeemed, repaid
or purchased, in whole or in part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other than
denominations of $5,000, the denomination or denominations in which any
Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be payable
upon declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the method by which such portion shall be determined;
(11) if other than Dollar, the Currency or Currencies in
which payment of the principal of (or premium, if any) or interest, if
any, on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in
lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series may
be determined with reference to an index, formula or other method (which
index, formula or method may be based, without limitation, on one or more
Currencies, commodities, equity indices or other indices), and the manner
in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be payable, at
the election of the Company, the Guarantor or a Holder thereof, in one or
more Currencies, other than that in which such Securities are denominated
or stated to be payable, the period or periods within which (including the
Election Date), and the terms and conditions upon which, such election may
be made, and
22
the time and manner of determining the exchange rate between the Currency
or Currencies in which such Securities are denominated or stated to be
payable and the Currency or Currencies in which such Securities are to be
paid, in each case in accordance with, in addition to or in lieu of any of
the provisions of Section 312;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events as
may be specified;
(15) any deletions from, modifications of or additions to the
Events of Default or covenants (including any deletions from,
modifications of or additions to any of the provisions of Section 1008) of
the Company or the Guarantor, as the case may be, with respect to
Securities of the series, whether or not such Events of Default or
covenants are consistent with the Events of Default or covenants set forth
herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities (with or without coupons) or
both, any restrictions applicable to the offer, sale or delivery of Bearer
Securities and the terms upon which Bearer Securities of the series may be
exchanged for Registered Securities of the series and vice versa (if
permitted by applicable laws and regulations), whether any Securities of
the series are to be issuable initially in temporary global form and
whether any Securities of the series are to be issuable in permanent
global form with or without coupons and, if so, whether beneficial owners
of interests in any such permanent global Security may exchange such
interests for Securities of such series in certificated form and of like
tenor of any authorized form and denomination and the circumstances under
which any such exchanges may occur, if other than in the manner provided
in Section 305, and, if Registered Securities of the series are to be
issuable as a global Security, the identity of the depository for such
series;
(17) the date as of which any Bearer Securities of the series
and any temporary global Security representing Outstanding Securities of
the series shall be dated if other than the date of original issuance of
the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in whose
name such Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest, the
manner in which, or the Person to whom, any interest on any Bearer
Security of the series shall be payable, if otherwise than upon
presentation and surrender of the coupons appertaining thereto as they
severally mature, and the extent to which, or the manner in which, any
interest payable on a temporary global Security on an Interest Payment
Date will be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and/or 1403
to the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article XIV;
23
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions, then
the form and/or terms of such certificates, documents or conditions;
(21) the designation of the initial Exchange Rate Agent, if
any;
(22) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company or the Guarantor), the terms and conditions upon which such
Securities will be so convertible or exchangeable;
(23) if the Securities will be entitled to the benefit of the
Guarantee afforded by Article XVI or, if not, the form of the Guarantee to
be endorsed on the Securities; and
(24) any other terms of the series (which terms shall not be
inconsistent with the provisions of this Indenture or the requirements of
the Trust Indenture Act).
All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. All Securities of any one series need not be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series.
If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary of the Company and delivered to the Trustee at or prior
to the delivery of the Officers' Certificate setting forth the terms of the
Securities of such series.
SECTION 302 DENOMINATIONS. The Securities of each series shall be issuable in
such denominations as shall be specified as contemplated by Section 301. With
respect to Securities of any series denominated in Dollars, in the absence of
any such provisions with respect to the Securities of any series, the Registered
Securities of such series, other than Registered Securities issued in global
form (which may be of any denomination) shall be issuable in denominations of
$1,000 and any integral multiple thereof, and the Bearer Securities of such
series, other than Bearer Securities issued in global form (which may be of any
denomination), shall be issuable in a denomination of $5,000.
SECTION 303 EXECUTION, AUTHENTICATION, DELIVERY AND DATING. The Securities and
any coupons appertaining thereto and the Guarantees to be noted or endorsed on
the Securities shall be executed on behalf of the Company by its principal
executive officer, principal financial officer or its principal accounting
officer and on behalf of the Guarantor by its President, one of its Vice
Presidents, its Treasurer or its Secretary. The signature of any of these
officers on the
24
Securities and coupons and the Guarantees, as the case may be, may be manual
or facsimile signatures of the present or any future such authorized officer
and may be imprinted or otherwise reproduced on the Securities. If Article
XVI is to be applicable to the Securities of any series, established as
contemplated by Section 301, then the Guarantees noted or endorsed on the
Securities of such series shall be executed as provided in Section 1602.
Securities or coupons, or any Guarantee, bearing the manual or
facsimile signatures of individuals who were at any time the proper officers of
the Company or the Guarantor, as the case may be, shall bind the Company or the
Guarantor, as the case may be, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or Guarantee or did not hold such offices at the date of such
Securities or coupons, or such Guarantee.
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company, having
Guarantees noted or endorsed thereon executed by the Guarantor, to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; PROVIDED, HOWEVER, that,
in connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and PROVIDED FURTHER
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Security. Except as permitted by Section 306,
the Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been detached and cancelled.
If all the Securities of any series are not to be issued at one time and if the
Board Resolution or supplemental indenture establishing such series shall so
permit, such Company Order may set forth procedures acceptable to the Trustee
for the issuance of such Securities and determining the terms of particular
Securities of such series, such as interest rate, maturity date, date of
issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Section 315(a) through 315(d)) shall be fully protected in
relying upon,
(i) an Opinion of Counsel stating,
25
(a) that the form or forms of such Securities and any
coupons and Guarantee have been established in conformity with the
provisions of this Indenture;
(b) that the terms of such Securities and any coupons and
Guarantee, have been established in conformity with the provisions
of this Indenture; and
(c) that such Securities, together with any coupons
appertaining thereto and the Guarantees thereof, when completed by
appropriate insertions and executed and delivered by the Company and
the Guarantor, as applicable, to the Trustee for authentication in
accordance with this Indenture, authenticated and delivered by the
Trustee in accordance with this Indenture and issued by the Company,
in the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company and the Guarantor, respectively,
enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of
general applicability relating to or affecting the enforcement of
creditors' rights, to general equitable principles and to such other
qualifications as such counsel shall conclude do not materially
affect the rights of Holders of such Securities and any coupons; and
(ii) an Officers' Certificate stating, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing.
Notwithstanding the provisions of Section 301 and of this
Section 303, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order, Opinion of Counsel or
Officers' Certificate otherwise required pursuant to the preceding paragraph at
the time of issuance of each Security of such series, but such order, opinion
and certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
If such form or terms have been so established, the Trustee
shall not be required to authenticate such Securities if the issue of such
Securities pursuant to this Indenture will affect the Trustee's own rights,
duties, obligations or immunities under the Securities and this Indenture or
otherwise in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the generality of the foregoing, the Trustee will not be
required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
26
No Security or coupon, or Guarantee, shall be entitled to any
benefit under this Indenture or be valid or obligatory for any purpose unless
there appears on such Security a certificate of authentication substantially in
the form provided for herein duly executed by the Trustee by manual signature of
an authorized signatory, and such certificate upon any Security shall be
conclusive evidence, and the only evidence, that such Security, coupon and
Guarantee have been duly authenticated and delivered hereunder and are entitled
to the benefits of this Indenture. Notwithstanding the foregoing, if any
Security shall have been authenticated and delivered hereunder but never issued
and sold by the Company, and the Company shall deliver such Security to the
Trustee for cancellation as provided in Section 310, together with a written
statement (which need not comply with Section 102 and need not be accompanied by
an Opinion of Counsel) stating that such Security has never been issued and sold
by the Company, for all purposes of this Indenture such Security, and the
related Guarantee, shall be deemed never to have been authenticated and
delivered hereunder and shall never be entitled to the benefits of this
Indenture (including, if applicable, the Guarantee pursuant to Article XVI).
The delivery of any Security by the Trustee, after the
authentication thereof hereunder, shall constitute delivery of the Guarantee
endorsed or noted thereon on behalf of the Guarantor. The Guarantor by its
execution of this Indenture hereby authorizes the Company, in the name and on
behalf of the Guarantor, to confirm the applicable Guarantee to the Holder of
each Security authenticated and delivered hereunder by its execution and
delivery of each such Security, with such Guarantee noted or endorsed thereon,
authenticated and delivered by the Trustee. When delivered pursuant to the
provisions of Section 303 hereof, only Guarantees endorsed or noted on the
Securities shall bind the Guarantor, notwithstanding the fact that the Guarantee
does not bear the signature of the Guarantor.
SECTION 304 TEMPORARY SECURITIES. (a) Pending the preparation of definitive
Securities of any series, the Company may execute, the Guarantor may execute its
Guarantee to be noted or endorsed on, and, upon Company Order, the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities, or Guarantees or notations of the Guarantee pursuant to Article XVI,
as applicable, may determine, as conclusively evidenced by their execution of
such Securities or Guarantees or notations, as the case may be. In the case of
Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Section 304(b) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any
27
series (accompanied by any non-matured coupons appertaining thereto), the
Company shall execute, and the Guarantor shall execute the Guarantee noted or
endorsed on, and the Trustee shall authenticate and deliver in exchange
therefor a like principal amount of, definitive Securities of the same series
of authorized denominations; PROVIDED, HOWEVER, that no definitive Bearer
Security shall be delivered in exchange for a temporary Registered Security;
and PROVIDED FURTHER that a definitive Bearer Security shall be delivered in
exchange for a temporary Bearer Security only in compliance with the
conditions set forth in Section 303. Until so exchanged, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(b) shall govern the exchange of temporary
Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary or
common depositary (the "Common Depositary"), for the benefit of Euroclear and
Clearstream Luxembourg, for credit to the respective accounts of the beneficial
owners of such Securities (or to such other accounts as they may direct).
Without unnecessary delay but in any event not later than the
date specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the Trustee
definitive Securities, in aggregate principal amount equal to the principal
amount of such temporary global Security, executed by the Company and, as
applicable, the Guarantor. On or after the Exchange Date, such temporary global
Security shall be surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or from time to time
in part, for definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such temporary global
Security, an equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the portion of such
temporary global Security to be exchanged. The definitive Securities to be
delivered in exchange for any such temporary global Security shall be in bearer
form, registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as requested by
the beneficial owner thereof; PROVIDED, HOWEVER, that, unless otherwise
specified in such temporary global Security, upon such presentation by the
Common Depositary, such temporary global Security is accompanied by a
certificate dated the Exchange Date or a subsequent date and signed by Euroclear
as to the portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent date and
signed by Clearstream Luxembourg as to the portion of such temporary global
Security held for its account then to be exchanged, each in the form set forth
in Exhibit A-2 to this Indenture or in such other form as may be established
pursuant to Section 301; and PROVIDED FURTHER that definitive Bearer Securities
shall be delivered in exchange for a portion of a temporary global Security only
in compliance with the requirements of Section 303.
Unless otherwise specified in such temporary global Security,
the interest of a beneficial owner of Securities of a series in a temporary
global Security shall be exchanged for
28
definitive Securities of the same series and of like tenor following the
Exchange Date when the account holder instructs Euroclear or Clearstream
Luxembourg, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream Luxembourg, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in
such other form as may be established pursuant to Section 301), dated no
earlier than 15 days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and Clearstream Luxembourg,
the Trustee, any Authenticating Agent appointed for such series of Securities
and each Paying Agent. Unless otherwise specified in such temporary global
Security, any such exchange shall be made free of charge to the beneficial
owners of such temporary global Security, except that a Person receiving
definitive Securities must bear the cost of insurance, postage,
transportation and the like unless such Person takes delivery of such
definitive Securities in person at the offices of Euroclear or Clearstream
Luxembourg. Definitive Securities in bearer form to be delivered in exchange
for any portion of a temporary global Security shall be delivered only
outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities of the same series and of like
tenor authenticated and delivered hereunder, except that, unless otherwise
specified as contemplated by Section 301, interest payable on a temporary global
Security on an Interest Payment Date for Securities of such series occurring
prior to the applicable Exchange Date shall be payable to Euroclear and
Clearstream Luxembourg on such Interest Payment Date upon delivery by Euroclear
and Clearstream Luxembourg to the Trustee of a certificate or certificates in
the form set forth in Exhibit A-2 to this Indenture (or in such other forms as
may be established pursuant to Section 301), for credit without further interest
on or after such Interest Payment Date to the respective accounts of Persons who
are the beneficial owners of such temporary global Security on such Interest
Payment Date and who have each delivered to Euroclear or Clearstream Luxembourg,
as the case may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the form set
forth as Exhibit A-1 to this Indenture (or in such other forms as may be
established pursuant to Section 301). Notwithstanding anything to the contrary
herein contained, the certifications made pursuant to this paragraph shall
satisfy the certification requirements of the preceding two paragraphs of this
Section 304(b) and of the third paragraph of Section 303 of this Indenture and
the interests of the Persons who are the beneficial owners of the temporary
global Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs after the
Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal (or premium, if
any) or interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest in such
temporary global Security shall have been exchanged for an interest in a
definitive Security. Any interest so received by Euroclear and Clearstream
Luxembourg and not paid as herein provided shall be returned to the Trustee
prior to the expiration of two years after such Interest Payment Date in order
to be repaid to the Company.
SECTION 305 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE. The Company
shall cause to be kept at the Corporate Trust Office of the Trustee or in any
office or agency of the
29
Company in a Place of Payment a register for each series of Securities (the
registers maintained in such office or in any such office or agency of the
Company in a Place of Payment being herein sometimes referred to collectively
as the "Security Register") in which, subject to such reasonable regulations
as it may prescribe, the Company or the Guarantor shall provide for the
registration of Registered Securities and of transfers of Registered
Securities. The Security Register shall be in written form or any other form
capable of being converted into written form within a reasonable time. The
Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein
provided. In the event that the Trustee shall cease to be Security Registrar,
it shall have the right to examine the Security Register at all reasonable
times.
Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in a Place of
Payment for that series, the Company shall execute, and the Guarantor shall
execute the Guarantee noted or endorsed on, and the Trustee shall authenticate
and deliver, in the name of the designated transferee or transferees, one or
more new Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, bearing a number not
contemporaneously outstanding and containing identical terms and provisions and
with the Guarantee noted or endorsed thereon.
At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination or denominations and of a like aggregate principal
amount, containing identical terms and provisions and with the Guarantee noted
or endorsed thereon, upon surrender of the Registered Securities to be exchanged
at any such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Guarantor shall
execute the Guarantee on, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified with respect to any series of Securities as
contemplated by Section 301, Bearer Securities may not be issued in exchange for
Registered Securities.
If (but only if) permitted by the applicable Board Resolution
and (subject to Section 303) set forth in the applicable Officers' Certificate,
or in any indenture supplemental hereto, delivered as contemplated by Section
301, at the option of the Holder, Bearer Securities of any series may be
exchanged for Registered Securities of the same series of any authorized
denominations and of a like aggregate principal amount and tenor and with the
Guarantee noted or endorsed thereon, upon surrender of the Bearer Securities to
be exchanged at any such office or agency, with all unmatured coupons and all
matured coupons in default thereto appertaining. If the Holder of a Bearer
Security is unable to produce any such unmatured coupon or coupons or matured
coupon or coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company
or the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, 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
30
the Holder of such Security shall surrender to any Paying Agent any such
missing coupon in respect of which such a payment shall have been made, such
Holder shall be entitled to receive the amount of such payment; PROVIDED,
HOWEVER, that, except as otherwise provided in Section 1002, interest
represented by coupons shall be payable only upon presentation and surrender
of those coupons at an office or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series is
surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor and with the Guarantee
noted or endorsed thereon after the close of business at such office or
agency on (i) any Regular Record Date and before the opening of business at
such office or agency on the relevant Interest Payment Date, or (ii) any
Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date or proposed date for payment, as the case may be, and
interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Guarantor shall execute the Guarantee noted or
endorsed on, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security, executed by the Company and the
Guarantor. On or after the earliest date on which such interests may be so
exchanged, such permanent global Security shall be surrendered by the Common
Depositary or such other depositary as shall be specified in the Company Order
with respect thereto to the Trustee, as the Company's agent for such purpose, to
be exchanged, in whole or from time to time in part, for definitive Securities
without charge and the Trustee shall authenticate and deliver, in exchange for
each portion of such permanent global Security, an equal aggregate principal
amount of definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such permanent global Security to be
exchanged which, unless the Securities of the series are not issuable both as
Bearer Securities and as Registered Securities, as specified as contemplated by
Section 301, shall be in the form of Bearer Securities or Registered Securities,
or any combination thereof, as shall be specified by the beneficial owner
thereof; PROVIDED, HOWEVER, that no such exchanges may occur during a period
beginning at the opening of business 15 days before any selection of Securities
to be
31
redeemed and ending on the relevant Redemption Date if the Security for which
exchange is requested may be among those selected for redemption; and
PROVIDED FURTHER that no Bearer Security delivered in exchange for a portion
of a permanent global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly following any such exchange in part
such global security shall be returned to such other depositary or the Common
Depositary, as the case may be, or such depositary or Common 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
permanent global Security after the close of business at the office or agency
where such exchange occurs on (i) any Regular Record Date and before the
opening of business at such office or agency on the relevant Interest Payment
Date, or (ii) any Special Record Date and before the opening of business at
such office or agency on the related proposed date for payment of Defaulted
Interest, interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the
case may be, in respect of such Registered Security, but will be payable on
such Interest Payment Date or proposed date for payment, as the case may be,
only to the Person to whom interest in respect of such portion of such
permanent global Security is payable in accordance with the provisions of
this Indenture.
All Securities issued upon any registration of transfer or
exchange of Securities, and the Guarantees, shall be valid obligations of the
Company and the Guarantor, respectively, evidencing the same debt and entitled
to the same benefits under this Indenture, as the Securities, and the Guarantees
thereof, surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company or the Guarantor, as the
case may be, may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
304, 906, 1107 or 1305 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security, if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before selection of the Securities to be redeemed under Section 1103 and
ending at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities, the day
of the first publication of the relevant notice of redemption or, if such
Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to
32
be redeemed, or (iii) to exchange any Bearer Security so selected for
redemption except that such a Bearer Security may be exchanged for a
Registered Security of that series and like tenor, PROVIDED that such
Registered Security shall be simultaneously surrendered for redemption, or
(iv) to issue, register the transfer of or exchange any Security which has
been surrendered for repayment at the option of the Holder, except the
portion, if any, of such Security not to be so repaid.
SECTION 306 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES. If any mutilated
Security or a Security with a mutilated coupon appertaining to it is surrendered
to the Trustee or the Company, together with, in proper cases, such security or
indemnity as may be required by the Company or the Trustee to save each of them
or any agent of either of them harmless, the Company shall execute, the
Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee
shall authenticate and deliver in exchange therefor. a new Security of the same
series and principal amount, containing identical terms and provisions, having
the Guarantee noted or endorsed thereon and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to the surrendered Security.
If there shall be delivered to the Company, the Guarantor and
the Trustee (i) evidence to their satisfaction of the destruction, loss or theft
of any Security or coupon, and (ii) such security or indemnity as may be
required by them to save each of them and any agent of either of them harmless,
then, in the absence of notice to the Company, the Guarantor or the Trustee that
such Security or coupon has been acquired by a bona fide purchaser, the Company
shall execute and the Guarantor shall execute the Guarantee noted or endorsed on
and, upon the Company's or the Guarantor's request, as the case may be, the
Trustee shall authenticate and deliver, in lieu of any such destroyed, lost or
stolen Security or in exchange for the Security to which a destroyed, lost or
stolen coupon appertains (with all appurtenant coupons not destroyed, lost or
stolen), a new Security of the same series and principal amount, containing
identical terms and provisions, having the Guarantee noted or endorsed thereon
and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to such destroyed, lost or
stolen Security or to the Security to which such destroyed, lost or stolen
coupon appertains.
Notwithstanding the provisions of the previous two paragraphs,
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; PROVIDED, HOWEVER, that payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may
33
be imposed in relation thereto and any other expenses (including the fees and
expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any,
issued pursuant to this Section in lieu of any destroyed, lost or stolen
Security or in exchange for a Security to which a destroyed, lost or stolen
coupon appertains, and the Guarantee thereof, shall constitute an original
additional contractual obligation of the Company and the Guarantor, whether or
not the destroyed, lost or stolen Security and its coupons, if any, or the
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, and Guarantees duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED; OPTIONAL INTEREST
RESET. (a) Except as otherwise specified with respect to a series of Securities
in accordance with the provisions of Section 301, interest and Additional
Amounts, if any, on any Registered Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such interest
at the office or agency of the Company maintained for such purpose pursuant to
Section 1002; PROVIDED, HOWEVER, that each installment of interest, if any, on
any Registered Security may at the Company's option be paid by (i) mailing a
check for such interest, payable to or upon the written order of the Person
entitled thereto pursuant to Section 309, to the address of such Person as it
appears on the Security Register or (ii) transfer to an account maintained by
the payee inside the United States.
Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account maintained by
the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Clearstream
Luxembourg with respect to that portion of such permanent global Security held
for its account by the Common Depositary, for the purpose of permitting each of
Euroclear and Clearstream Luxembourg to credit the interest, if any, received by
it in respect of such permanent global Security to the accounts of the
beneficial owners thereof.
In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or
34
agency) on the next succeeding Interest Payment Date, such Bearer Security
shall be surrendered without the coupon relating to such Interest Payment
Date and interest will not be payable on such Interest Payment Date in
respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company or the Guarantor at its
election in each case, as provided in clause (1) or (2) below:
(1) The Company or the Guarantor may elect to make payment
of any Defaulted Interest to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such
Defaulted Interest, which shall be fixed in the following
manner. The Company or the Guarantor shall notify the Trustee
in writing of the amount of Defaulted Interest proposed to be
paid on each Registered Security of such series and the date
of the proposed payment (which shall not be less than 20 days
after such notice is received by the Trustee), and at the same
time the Company or the Guarantor, as the case may be, shall
deposit with the Trustee an amount of money in the Currency in
which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities
of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the
Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in
trust for the benefit of the Persons entitled to such
Defaulted Interest as in this clause provided. Thereupon the
Trustee shall fix a Special Record Date for the payment of
such Defaulted Interest which shall be not more than 15 days
and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the
Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company and the Guarantor, as the
case may be, of such Special Record Date and, in the name and
at the expense of the Company or the Guarantor, as the case
may be, shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of
Registered Securities of such series at his address as it
appears in the Security Register not less than 10 days prior
to such Special Record Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor
having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names the Registered
Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on such
35
Special Record Date and shall no longer be payable pursuant to
the following clause (2). In case a Bearer Security of any
series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security
of such series after the close of business at such office or
agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date
for payment of Defaulted Interest, such Bearer Security shall
be surrendered without the coupon relating to such proposed
date of payment and Defaulted Interest will not be payable on
such proposed date of payment in respect of the Registered
Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company or the Guarantor may make payment of any
Defaulted Interest on the Registered Securities of any series
in any other lawful manner not inconsistent with the
requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company or the Guarantor, as the case may be, to the Trustee
of the proposed payment pursuant to this clause, such manner
of payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company or the Guarantor, as the case may be, on the date or
dates specified on the face of such Security (each an "Optional Reset Date").
The Company or the Guarantor, as the case may be, may exercise such option with
respect to such Security by notifying the Trustee of such exercise at least 45
but not more than 60 days prior to an Optional Reset Date for such Security. Not
later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of any such
Security a notice (the "Reset Notice") indicating whether the Company or the
Guarantor, as the case may be, has elected to reset the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if
applicable), and if so (i) such new interest rate (or such new spread or spread
multiplier, if applicable) and (ii) the provisions, if any, for redemption
during the period from such Optional Reset Date to the next Optional Reset Date
or if there is no such next Optional Reset Date, to the Stated Maturity Date of
such Security (each such period a "Subsequent Interest Period"), including the
date or dates on which or the period or periods during which and the price or
prices at which such redemption may occur during the Subsequent Interest Period.
Notwithstanding the foregoing, not later than 20 days prior to
the Optional Reset Date, the Company or the Guarantor, as the case may be, may,
at its option, revoke the interest rate (or the spread or spread multiplier used
to calculate such interest rate, if applicable) provided for in the Reset Notice
and establish an interest rate (or a spread or spread multiplier used to
calculate such interest rate, if applicable) that is higher than the interest
rate (or the spread or spread multiplier, if applicable) provided for in the
Reset Notice, for the Subsequent Interest
36
Period by causing the Trustee to transmit, in the manner provided for in
Section 106, notice of such higher interest rate (or such higher spread or
spread multiplier, if applicable) to the Holder of such Security. Such notice
shall be irrevocable. All Securities with respect to which the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) is reset on an Optional Reset Date, and with respect to which the
Holders of such Securities have not tendered such Securities for repayment
(or have validly revoked any such tender) pursuant to the next succeeding
paragraph, will bear such higher interest rate (or such higher spread or
spread multiplier, if applicable).
The Holder of any such Security will have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article XIII for
repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308 OPTIONAL EXTENSION OF MATURITY. The provisions of this Section 308
may be made applicable to any series of Securities pursuant to Section 301 (with
such modifications, additions or substitutions as may be specified pursuant to
such Section 301). The Stated Maturity of any Security of such series may be
extended at the option of the Company or the Guarantor for the period or periods
specified on the face of such Security (each an "Extension Period") up to but
not beyond the date (the "Final Maturity") set forth on the face of such
Security. The Company or the Guarantor may exercise such option with respect to
any Security by notifying the Trustee of such exercise at least 45 but not more
than 60 days prior to the Stated Maturity of such Security in effect prior to
the exercise of such option (the "Original Stated Maturity"). If the Company or
the Guarantor exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company or the Guarantor to extend the Stated
Maturity, (ii) the new Stated Maturity, (iii) the interest rate, if any,
applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in the next paragraph, such Security will have the same terms as prior to the
transmittal of such Extension Notice.
Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company or the Guarantor may,
at its option, revoke the interest
37
rate provided for in the Extension Notice and establish a higher interest
rate for the Extension Period by causing the Trustee to transmit, in the
manner provided for in Section 106, notice of such higher interest rate to
the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the Stated Maturity is extended will bear such higher
interest rate.
If the Company or the Guarantor extends the Stated Maturity of
any Security, the Holder will have the option to elect repayment of such
Security by the Company on the Original Stated Maturity at a price equal to the
principal amount thereof, plus interest accrued to such date. In order to obtain
repayment on the Original Stated Maturity once the Company or the Guarantor has
extended the Stated Maturity thereof, the Holder must follow the procedures set
forth in Article XIII for repayment at the option of Holders, except that the
period for delivery or notification to the Trustee shall be at least 25 but not
more than 35 days prior to the Original Stated Maturity and except that, if the
Holder has tendered any Security for repayment pursuant to an Extension Notice,
the Holder may by written notice to the Trustee revoke such tender for repayment
until the close of business on the tenth day before the Original Stated
Maturity.
SECTION 309 PERSONS DEEMED OWNERS. Prior to due presentment of a Registered
Security for registration of transfer, the Company, the Guarantor, the Trustee
and any agent of the Company, the Guarantor or the Trustee may treat the Person
in whose name such Registered Security is registered as the owner of such
Security for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 305 and 307) interest, if any, on such Registered
Security and for all other purposes whatsoever, whether or not such Registered
Security be overdue, and none of the Company, the Guarantor, the Trustee or any
agent of the Company, the Guarantor or the Trustee shall be affected by notice
to the contrary.
Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Guarantor, the Trustee and any
agent of the Company, the Guarantor or the Trustee may treat the bearer of any
Bearer Security and the bearer of any coupon as the absolute owner of such
Security or coupon for the purpose of receiving payment thereof or on account
thereof and for all other purposes whatsoever, whether or not such Security or
coupon be overdue, and none of the Company, the Guarantor, the Trustee or any
agent of the Company, the Guarantor, or the Trustee shall be affected by notice
to the contrary.
None of the Company, the Guarantor, the Trustee, any Paying
Agent or the Security Registrar will have any responsibility or liability for
any aspect of the records relating to or payments made on account of beneficial
ownership interests of a Security in global form or for maintaining, supervising
or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Guarantor, the Trustee
or any agent of the Company, the Guarantor or the Trustee, from giving effect to
any written certification, proxy or other authorization furnished by any
depositary, as a Holder, with respect to such global Security or impair, as
between such depositary and owners of beneficial interests in such global
Security, the
38
operation of customary practices governing the exercise of the rights of such
depositary (or its nominee) as Holder of such global Security.
SECTION 310 CANCELLATION. All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee, and any such
Securities and coupons and Securities and coupons surrendered directly to the
Trustee for any such purpose shall be promptly cancelled by it. The Company or
the Guarantor may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company or
the Guarantor may have acquired in any manner whatsoever, and may deliver to the
Trustee (or to any other Person for delivery to the Trustee) for cancellation
any Securities previously authenticated hereunder which the Company or the
Guarantor has not issued and sold, and all Securities so delivered shall be
promptly cancelled by the Trustee. If the Company or the Guarantor shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Cancelled Securities and coupons held by the Trustee shall be
destroyed by the Trustee and the Trustee shall deliver a certificate of such
destruction to the Company unless, by a Company Order or a Guarantor Order, the
Company or Guarantor directs their return to it.
SECTION 311 COMPUTATION OF INTEREST. Except as otherwise specified as
contemplated by Section 301 with respect to Securities of any series, interest,
if any, on the Securities of each series shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
SECTION 312 CURRENCY AND MANNER OF PAYMENTS IN RESPECT OF SECURITIES. (a) Unless
otherwise specified with respect to any Securities pursuant to Section 301, with
respect to Registered Securities of any series not permitting the election
provided for in paragraph (b) below or the Holders of which have not made the
election provided for in paragraph (b) below, and with respect to Bearer
Securities of any series, except as provided in paragraph (d) below, payment of
the principal of (and premium, if any) and interest, if any, on any Registered
or Bearer Security of such series will be made in the Currency in which such
Registered Security or Bearer Security, as the case may be, is payable. The
provisions of this Section 312 may be modified or superseded with respect to any
Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with respect
to Registered Securities of any series that Holders shall have the option,
subject to paragraphs (d) and (e) below, to receive payments of principal of (or
premium, if any) or interest, if any, on such Registered Securities in any of
the Currencies which may be designated for such election by delivering to the
Trustee for such series of Registered Securities a written election with
signature guarantees and in the applicable form established pursuant to Section
301, not later than the close of business on the Election Date immediately
preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by
39
written notice to the Trustee for such series of Registered Securities (but
any such change must be made not later than the close of business on the
Election Date immediately preceding the next payment date to be effective for
the payment to be made on such payment date and no such change of election
may be made with respect to payments to be made on any Registered Security of
such series with respect to which an Event of Default has occurred or with
respect to which the Company or the Guarantor has deposited funds pursuant to
Article IV or XIV or with respect to which a notice of redemption has been
given by the Company or the Guarantor or a notice of option to elect
repayment has been sent by such Holder or such transferee). Any Holder of any
such Registered Security who shall not have delivered any such election to
the Trustee of such series of Registered Securities not later than the close
of business on the applicable Election Date will be paid the amount due on
the applicable payment date in the relevant Currency as provided in Section
312(a). The Trustee for each such series of Registered Securities shall
notify the Exchange Rate Agent as soon as practicable after the Election Date
of the aggregate principal amount of Registered Securities for which Holders
have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if
the election referred to in paragraph (b) above has been provided for pursuant
to Section 301, then, unless otherwise specified pursuant to Section 301, not
later than the fourth Business Day after the Election Date for each payment date
for Registered Securities of any series, the Exchange Rate Agent will deliver to
the Company and the Guarantor a written notice specifying the Currency in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any) and interest, if any, on the
Registered Securities to be paid on such payment date, specifying the amounts in
such Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities denominated in any Currency shall have elected
to be paid in another Currency as provided in paragraph (b) above. If the
election referred to in paragraph (b) above has been provided for pursuant to
Section 301 and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company and the Guarantor will deliver to the
Trustee for such series of Registered Securities an Exchange Rate Officer's
Certificate in respect of the Dollar or Foreign Currency or Currencies payments
to be made on such payment date. Unless otherwise specified pursuant to Section
301, the Dollar or Foreign Currency or Currencies amount receivable by Holders
of Registered Securities who have elected payment in a Currency as provided in
paragraph (b) above shall be determined by the Company or the Guarantor on the
basis of the applicable Market Exchange Rate in effect on the second Business
Day (the "Valuation Date") immediately preceding each payment date, and such
determination shall be conclusive and binding for all purposes, absent manifest
error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company or the Guarantor to the
Trustee of each such series of Securities and by such
40
Trustee or any Paying Agent to the Holders of such Securities with respect to
such payment date shall be, in the case of a Foreign Currency other than a
currency unit, the Dollar Equivalent of the Foreign Currency or, in the case
of a currency unit, the Dollar Equivalent of the Currency Unit, in each case
as determined by the Exchange Rate Agent in the manner provided in paragraph
(f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301, if
the Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in paragraph (d) of
this Section 312.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of paragraph
(h) below shall be the sum of each amount obtained by converting the Specified
Amount of each Component Currency into Dollars at the Market Exchange Rate for
such Component Currency on the Valuation Date with respect to each payment.
(h) For purposes of this Section 312, the following terms
shall have the following meanings:
A "COMPONENT CURRENCY" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant
currency unit, including, but not limited to, the euro.
A "SPECIFIED AMOUNT" of a Component Currency shall mean the
number of units of such Component Currency or fractions
thereof which were represented in the relevant currency unit,
including, but not limited to, the euro, on the Conversion
Date. If after the Conversion Date the official unit of any
Component Currency is altered by way of combination or
subdivision, the Specified Amount of such Component Currency
shall be divided or multiplied in the same proportion. If
after the Conversion Date two or more Component Currencies are
consolidated into a single currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an
amount in such single currency equal to the sum of the
respective Specified Amounts of such consolidated Component
Currencies expressed in such single currency, and such amount
shall thereafter be a Specified Amount and such single
currency shall thereafter be a Component Currency. If after
the Conversion Date any Component Currency shall be divided
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into two or more currencies, the Specified Amount of such
Component Currency shall be replaced by amounts of such two or
more currencies, having an aggregate Dollar Equivalent value
at the Market Exchange Rate on the date of such replacement
equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate
immediately before such division, and such amounts shall
thereafter be Specified Amounts and such currencies shall
thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, including, but not limited
to, the euro, a Conversion Event (other than any event
referred to above in this definition of "Specified Amount")
occurs with respect to any Component Currency of such currency
unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for
purposes of calculating the Dollar Equivalent of the Currency
Unit, be converted into Dollars at the Market Exchange Rate in
effect on the Conversion Date of such Component Currency.
"ELECTION DATE" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days
prior to Maturity, as the case may be, or such other prior
date for any series of Registered Securities as specified
pursuant to clause 13 of Section 301 by which the written
election referred to in Section 312(b) may be made.
All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Guarantor, the Trustee for the appropriate series
of Securities and all Holders of such Securities denominated or payable in the
relevant Currency. The Exchange Rate Agent shall promptly give written notice to
the Company, the Guarantor and the Trustee for the appropriate series of
Securities of any such decision or determination.
In the event that the Company or the Guarantor determines in
good faith that a Conversion Event has occurred with respect to a Foreign
Currency, the Company or the Guarantor, as applicable, will immediately give
written notice thereof to the Trustee of the appropriate series of Securities
and to the Exchange Rate Agent (and such Trustee will promptly thereafter give
notice in the manner provided in Section 106 to the affected Holders) specifying
the Conversion Date. In the event the Company or the Guarantor so determines
that a Conversion Event has occurred with respect to the euro or any other
currency unit in which Securities are denominated or payable, the Company or the
Guarantor, as applicable, will immediately give written notice thereof to the
Trustee of the appropriate series of Securities and to the Exchange Rate Agent
(and such Trustee will promptly thereafter give notice in the manner provided in
Section 106 to the affected Holders) specifying the Conversion Date and the
Specified Amount of each Component Currency on the Conversion Date. In the event
the Company or the Guarantor determines in good faith that any subsequent change
in any Component Currency as set forth in the definition of Specified Amount
above has occurred, the
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Company or the Guarantor, as applicable, will similarly give written notice
to the Trustee of the appropriate series of Securities and to the Exchange
Rate Agent.
The Trustee of the appropriate series of Securities shall be
fully justified and protected in relying and acting upon information received by
it from the Company, the Guarantor and the Exchange Rate Agent and shall not
otherwise have any duty or obligation to determine the accuracy or validity of
such information independent of the Company, the Guarantor or the Exchange Rate
Agent.
SECTION 313 APPOINTMENT AND RESIGNATION OF SUCCESSOR EXCHANGE RATE AGENT. (a)
Unless otherwise specified pursuant to Section 301, if and so long as the
Securities of any series (i) are denominated in a Foreign Currency or (ii) may
be payable in a Foreign Currency, or so long as it is required under any other
provision of this Indenture, then the Company will maintain with respect to each
such series of Securities, or as so required, at least one Exchange Rate Agent.
The Company will cause the Exchange Rate Agent to make the necessary foreign
exchange determinations at the time and in the manner specified pursuant to
Section 301 for the purpose of determining the applicable rate of exchange and,
if applicable, for the purpose of converting the issued Foreign Currency into
the applicable payment Currency for the payment of principal (and premium, if
any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company, the
Guarantor and the Trustee of the appropriate series of Securities accepting such
appointment executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause, with respect to the Securities of one or more
series, the Company, by or pursuant to a Board Resolution, shall promptly
appoint a successor Exchange Rate Agent or Exchange Rate Agents with respect to
the Securities of that or those series (it being understood that any such
successor Exchange Rate Agent may be appointed with respect to the Securities of
one or more or all of such series and that, unless otherwise specified pursuant
to Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 314 CUSIP NUMBERS. The Company in issuing the Securities may use "CUSIP"
or "ISIN" numbers (if then generally in use), and, if so, the Trustee shall
indicate the "CUSIP" or "ISIN" numbers of the Securities in notices of
redemption as a convenience to Holders; PROVIDED that any such notice may state
that no representation is made as to the correctness of such numbers either as
printed on the Securities or as contained in any notice of redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 401 SATISFACTION AND DISCHARGE OF INDENTURE. This Indenture shall upon
Company Request or Guarantor Request cease to be of further effect with respect
to any series of Securities specified in such Company Request or Guarantor
Request (except as to any surviving rights of registration of transfer or
exchange of Securities of such series expressly provided for herein or pursuant
hereto), and the Trustee, upon receipt of a Company Order or Guarantor Order,
and at the expense of the Company and the Guarantor, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series, when
(1) either
(A) all Securities of such series theretofore authenticated
and delivered and all coupons, if any, appertaining thereto (other
than (i) coupons appertaining to Bearer Securities surrendered for
exchange for Registered Securities and maturing after such exchange,
whose surrender is not required or has been waived as provided in
▇▇▇▇▇▇▇ ▇▇▇, (▇▇) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced or paid
as provided in ▇▇▇▇▇▇▇ ▇▇▇, (▇▇▇) coupons appertaining to Securities
called for redemption and maturing after the relevant Redemption
Date, whose surrender has been waived as provided in Section 1106,
and (iv) Securities and coupons of such series for whose payment
money has theretofore been deposited in trust or segregated and held
in trust by the Company or the Guarantor and thereafter repaid to
the Company or the Guarantor, as the case may be, 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 Guarantor,
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and the Company or the Guarantor, in the case of (i), (ii) or (iii)
above, has irrevocably deposited or caused to be deposited with the
Trustee as trust funds in trust for such purpose an amount in the
Currency in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such
Securities and such coupons not theretofore delivered to the Trustee
for cancellation, for principal (and premium, if any) and interest
and Additional Amounts, if any, to the date of such deposit (in the
case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company or the Guarantor has paid or caused to be
paid all other sums payable hereunder by the Company and the
Guarantor; and
(3) the Company or the Guarantor, as the case may be, has
delivered to the Trustee an Officers' Certificate and an Opinion of
Counsel, each stating that all conditions precedent herein provided
for relating to the satisfaction and discharge of this Indenture as
to such series have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company and the Guarantor to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Company and the Guarantor to
any Authenticating Agent under Section 611 and, if money shall have been
deposited with the Trustee pursuant to subclause (B) of clause (1) of this
Section, the obligations of the Trustee under Section 402, any rights to
Additional Amounts pursuant to Section 1004 and the last paragraph of Section
1003 shall survive.
SECTION 402 APPLICATION OF TRUST FUNDS. Subject to the provisions of the last
paragraph of Section 1003, all money deposited with the Trustee pursuant to
Section 401 shall be held in trust and applied by it, in accordance with the
provisions of the Securities, the coupons and this Indenture, to the payment,
either directly or through any Paying Agent (including the Company acting as its
own, or authorizing the Guarantor to act as, Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
or received by the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE V
REMEDIES
SECTION 501 EVENTS OF DEFAULT. "Event of Default", wherever used herein with
respect to any particular series of Securities, means any one of the following
events (whatever the reason for such Event of Default and whether or not it
shall be voluntary or involuntary or be effected by operation of law or pursuant
to any judgment, decree or order of any court or any order, rule or regulation
of any administrative or governmental body):
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(1) default in the payment of any interest or any Additional
Amounts upon any Security of that series or of any coupon appertaining
thereto, when such interest or coupon becomes due and payable, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or premium, if
any, on) any Security of that series when it becomes due and payable at
its Maturity; or
(3) default in the deposit of any sinking fund payment, when and
as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant or
agreement of the Company or the Guarantor in this Indenture with respect
to any Security of that series or, as the case may require, the Guarantees
(other than a covenant or agreement a default in whose performance or
whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 60 days after there
has been given, by registered or certified mail, to the Company and the
Guarantor by the Trustee, or to the Company, the Guarantor and the Trustee
by the Holders of at least 25% in principal amount of the Outstanding
Securities of that series, a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) the Company or the Guarantor pursuant to or within the meaning
of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief against it
in an involuntary case,
(C) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(D) makes a general assignment for the benefit of its
creditors; or
(6) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief against the Company or the Guarantor in an
involuntary case,
(B) appoints a Custodian of the Company or the Guarantor or
for all or substantially all of either of their respective
properties, or
(C) orders the liquidation of the Company or the Guarantor,
46
and the order or decree remains unstayed and in effect for 90 days;
or
(7) any other Event of Default provided with respect to Securities
of that series.
The term "Bankruptcy Law" means title 11, U.S. Code or any similar Federal or
State law for the relief of debtors. The term "Custodian" means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy
Law.
SECTION 502 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT. If an Event of
Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of that series
may declare the principal (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal as may be
specified in the terms thereof) of all the Securities of that series to be due
and payable immediately, by a notice in writing to the Company and the Guarantor
(and to the Trustee if given by the Holders), and upon any such declaration such
principal or specified portion thereof shall become immediately due and payable.
At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company, the Guarantor and the Trustee, may rescind and annul such declaration
and its consequences if:
(1) the Company or the Guarantor has paid or deposited with the
Trustee a sum sufficient to pay in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section
301 for the Securities of such series and except, if applicable, as
provided in Sections 312(b), 312(d) and 312(e)):
(A) all overdue installments of interest and Additional
Amounts, if any, on all Outstanding Securities of that series and
any related coupons,
(B) the principal of (and premium, if any, on) all
Outstanding Securities of that series which have become due
otherwise than by such declaration of acceleration and interest
thereon at the rate or rates borne by or provided for in such
Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue installments of interest at the rate or rates
borne by or provided for in such Securities, and
47
(D) all sums paid or advanced by the Trustee hereunder and
the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel; and
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium, if any)
or interest on Securities of that series which have become due solely by
such declaration of acceleration, have been cured or waived as provided in
Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 503 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE. The
Company and the Guarantor covenant that if:
(1) default is made in the payment of any installment of interest
and Additional Amounts on any Security of any series and any related
coupon when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company or the Guarantor will, upon demand of the Trustee, pay to the
Trustee, for the benefit of the Holders of Securities of such series and
coupons, the whole amount then due and payable on such Securities and coupons
for principal (and premium, if any) and interest, if any, with interest upon any
overdue principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of
interest, if any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the Company or the Guarantor fails to pay such amounts
forthwith upon such demand, the Trustee, in its own name and as trustee of an
express trust, may institute a judicial proceeding for the collection of the
sums so due and unpaid, and may prosecute such proceeding to judgment or final
decree, and may enforce the same against the Company, the Guarantor or any other
obligor upon Securities of such series and collect the moneys adjudged or
decreed to be payable in the manner provided by law out of the property of the
Company, the Guarantor or any other obligor upon Securities of such series,
wherever situated.
If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem most effectual to protect and enforce any such rights,
whether for the specific enforcement of any covenant or agreement in this
Indenture or in aid of the exercise of any power granted herein, or to enforce
any other proper remedy.
48
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,
the Guarantor or any other obligor upon the Securities or the property of the
Company, the Guarantor or of such other obligor or their creditors, the Trustee
(irrespective of whether the principal of the Securities of any series shall
then be due and payable as therein expressed or by declaration or otherwise and
irrespective of whether the Trustee shall have made any demand on the Company or
the Guarantor for the payment of any overdue principal, premium or interest)
shall be entitled and empowered, by intervention in such proceeding or
otherwise:
(i) to file and prove a claim for the whole amount of principal
(or in the case of Original Issue Discount Securities or Indexed
Securities, such portion of the principal as may be provided in the terms
thereof) (and premium, if any) and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of
the Holders allowed in such judicial proceeding, and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder of Securities of such series and coupons to make such payments to
the Trustee, and in the event that the Trustee shall consent to the making of
such payments directly to the Holders, to pay to the Trustee any amount due to
it for the reasonable compensation, expenses, disbursements and advances of the
Trustee and any predecessor Trustee, their agents and counsel, and any other
amounts due the Trustee or any predecessor Trustee under Section 606.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder of
a Security or coupon any plan of reorganization, arrangement, adjustment or
composition affecting the Securities or coupons or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Holder of a Security or coupon in any such proceeding.
SECTION 505 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES OR
COUPONS. All rights of action and claims under this Indenture or any of the
Securities or coupons or the Guarantees, may be prosecuted and enforced by the
Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has been
recovered.
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SECTION 506 APPLICATION OF MONEY COLLECTED. Any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date or
dates fixed by the Trustee and, in case of the distribution of such money on
account of principal (or premium, if any) or interest, if any, upon presentation
of the Securities or coupons, or both, as the case may be, and the notation
thereon of the payment if only partially paid and upon surrender thereof if
fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon the
Securities and coupons for principal (and premium, if any) and interest,
if any, in respect of which or for the benefit of which such money has
been collected, ratably, without preference or priority of any kind,
according to the aggregate amounts due and payable on such Securities and
coupons for principal (and premium, if any) and interest, if any,
respectively; and
THIRD: To the payment of the remainder, if any, to the Company or
any other Person or Persons entitled thereto.
SECTION 507 LIMITATION ON SUITS. No Holder of any Security of any series or any
related coupon shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the Trustee
of a continuing Event of Default with respect to the Securities of that
series;
(2) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to
the Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee reasonable
indemnity against the costs, expenses and liabilities to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or
50
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL, PREMIUM AND
INTEREST. Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, on such Security or payment of such
coupon, as the case may be, on the respective due dates expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
SECTION 509 RESTORATION OF RIGHTS AND REMEDIES. If the Trustee or any Holder of
a Security or coupon has instituted any proceeding to enforce any right or
remedy under this Indenture and such proceeding has been discontinued or
abandoned for any reason, or has been determined adversely to the Trustee or to
such Holder, then and in every such case the Company, the Guarantor, the Trustee
and the Holders of Securities and coupons shall, subject to any determination in
such proceeding, be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
the Holders shall continue as though no such proceeding had been instituted.
SECTION 510 RIGHTS AND REMEDIES CUMULATIVE. Except as otherwise provided with
respect to the replacement or payment of mutilated, destroyed, lost or stolen
Securities or coupons in the last paragraph of Section 306, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders of Securities
or coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in
addition to every other right and remedy given hereunder or now or hereafter
existing at law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent
assertion or employment of any other appropriate right or remedy.
SECTION 511 DELAY OR OMISSION NOT WAIVER. No delay or omission of the Trustee or
of any Holder of any Security or coupon to exercise any right or remedy accruing
upon any Event of Default shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein. Every right and
remedy given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Securities or coupons, as the case may be.
SECTION 512 CONTROL BY HOLDERS OF SECURITIES. The Holders of a majority in
principal amount of the Outstanding Securities of any series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, PROVIDED that
(1) such direction shall not be in conflict with any rule of law
or with this Indenture,
51
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities
of such series not consenting.
SECTION 513 WAIVER OF PAST DEFAULTS. The Holders of not less than a majority in
principal amount of the Outstanding Securities of any series may on behalf of
the Holders of all the Securities of such series and any related coupons waive
any past default hereunder with respect to such series and its consequences,
except a default
(1) in the payment of the principal of (or premium, if any) or
interest, if any, on any Security of such series or any related coupons,
or
(2) in respect of a covenant or provision hereof which under
Article IX cannot be modified or amended without the consent of the Holder
of each Outstanding Security of such series affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 514 WAIVER OF STAY OR EXTENSION LAWS. Each of the Company and the
Guarantor covenant (to the extent that each may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law wherever enacted, now or at
any time hereafter in force, which may affect the covenants or the performance
of this Indenture; and each of the Company and the Guarantor (to the extent that
each may lawfully do so) hereby expressly waives all benefit or advantage of any
such law, and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE VI
THE TRUSTEE
SECTION 601 NOTICE OF DEFAULTS. Within 90 days after the occurrence of any
Default hereunder with respect to the Securities of any series, the Trustee
shall transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such Default hereunder known to the Trustee, unless such Default shall
have been cured or waived; PROVIDED, HOWEVER, that, except in the case of a
Default in the payment of the principal of (or premium, if any) or interest, if
any, on any
52
Security of such series, or in the payment of any sinking or purchase fund
installment with respect to the Securities of such series, the Trustee shall
be protected in withholding such notice if and so long as the board of
directors, the executive committee or a trust committee of directors and/or
Responsible Officers of the Trustee in good faith determines that the
withholding of such notice is in the interests of the Holders of the
Securities and coupons of such series; and PROVIDED FURTHER that in the case
of any Default or breach of the character specified in Section 501(4) with
respect to the Securities and coupons of such series, no such notice to
Holders shall be given until at least 60 days after the occurrence thereof.
SECTION 602 CERTAIN RIGHTS OF TRUSTEE. Subject to the provisions of TIA Section
315(a) through 315(d):
(1) The Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(2) Any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order or of the
Guarantor mentioned herein shall be sufficiently evidenced by a Guarantor
Request or Guarantor Order (in each case, other than delivery of any
Security, together with any coupons appertaining thereto, to the Trustee
for authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the
Board of Directors may be sufficiently evidenced by a Board Resolution.
(3) Whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon a Board Resolution, an Opinion of Counsel
or an Officers' Certificate.
(4) The Trustee may consult with counsel and the advice of such
counsel or any Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken, suffered or omitted by it
hereunder in good faith and in reliance thereon.
(5) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or
direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered
to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with
such request or direction.
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(6) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee,
in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Company and the
Guarantor, personally or by agent or attorney.
(7) The Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by
it hereunder.
(8) The Trustee shall not be liable for any action taken, suffered
or omitted by it in good faith and believed by it to be authorized or
within the discretion or rights or powers conferred upon it by this
Indenture.
The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES. The recitals
contained herein and in the Securities, except the Trustee's certificate of
authentication, and in any coupons shall be taken as the statements of the
Company or the Guarantor, as the case may be, and neither the Trustee nor any
Authenticating Agent assumes any responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities or coupons or the Guarantees, except that the
Trustee represents that it is duly authorized to execute and deliver this
Indenture, authenticate the Securities and perform its obligations hereunder and
that the statements made by it in a Statement of Eligibility on Form T-1
supplied to the Company are true and accurate, subject to the qualifications set
forth therein. Neither the Trustee nor any Authenticating Agent shall be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 604 MAY HOLD SECURITIES. The Trustee, any Paying Agent, Security
Registrar, Authenticating Agent or any other agent of the Trustee, the Company
or the Guarantor, in its individual or any other capacity, may become the owner
or pledgee of Securities and coupons and, subject to TIA Sections 310(b) and
311, may otherwise deal with the Company or the Guarantor with the same rights
it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 605 MONEY HELD IN TRUST. Money held by the Trustee in trust hereunder
need not be segregated from other funds except to the extent required by law.
The Trustee shall be under no
54
liability for interest on any money received by it hereunder except as
otherwise agreed with the Company or the Guarantor, as the case may be.
SECTION 606 COMPENSATION AND REIMBURSEMENT. The Company agrees:
(1) To pay to the Trustee from time to time such compensation for
all services rendered by it hereunder as has been agreed upon in writing
(which compensation shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust).
(2) Except as otherwise expressly provided herein, to reimburse
each of the Trustee and any predecessor Trustee upon its request for all
reasonable expenses, disbursements and advances incurred or made by the
Trustee in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith.
(3) To indemnify each of the Trustee and any predecessor Trustee
for, and to hold it harmless against, any loss, liability or expense
incurred without negligence or bad faith on its own part, arising out of
or in connection with the acceptance or administration of the trust or
trusts hereunder, including the costs and expenses of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
In the event that the Company fails to make any such payments
or indemnify the Trustee, the Guarantor agrees to make such payments and/or
indemnify the Trustee on its behalf, which agreement shall survive the
resignation or removal of any Trustee and the satisfaction and discharge of this
Indenture.
As security for the performance of the obligations of the
Company and the Guarantor under this Section, the Trustee shall have a claim
prior to the Securities upon all property and funds held or collected by the
Trustee as such, except funds held in trust for the payment of principal of (or
premium, if any) or interest, if any, on particular Securities or any coupons.
SECTION 607 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY. There shall at all times be
a Trustee hereunder which shall be eligible to act as Trustee under TIA Section
310(a)(1) and shall have a combined capital and surplus of at least $50,000,000.
If such corporation publishes reports of condition at least annually, pursuant
to law or the requirements of Federal, State, Territorial or District of
Columbia supervising or examining authority, then for the purposes of this
Section, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
55
SECTION 608 RESIGNATION AND REMOVAL; APPOINTMENT OF SUCCESSOR. (a) No
resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article shall become effective until the acceptance of
appointment by the successor Trustee in accordance with the applicable
requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the Company
and the Guarantor.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company and the Guarantor.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company,
the Guarantor or by any Holder of a Security who has been a bona
fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
607(a) and shall fail to resign after written request therefor by
the Company, the Guarantor or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for
the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company or the Guarantor by or pursuant to a
Board Resolution may remove the Trustee and appoint a successor Trustee with
respect to all Securities, or (ii) subject to TIA Section 315(e), any Holder of
a Security who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition any court
of competent jurisdiction for the removal of the Trustee with respect to all
Securities and the appointment of a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving of a
notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed may petition any court of competent jurisdiction for
the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company and the Guarantor,
by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those
56
series (it being understood that any such successor Trustee may be appointed
with respect to the Securities of one or more or all of such series and that
at any time there shall be only one Trustee with respect to the Securities of
any particular series). If, within one year after such resignation, removal
or incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the
Holders of a majority in principal amount of the Outstanding Securities of
such series delivered to the Company, the Guarantor and the retiring Trustee,
the successor Trustee so appointed shall, forthwith upon its acceptance of
such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed
by the Company and the Guarantor. If no successor Trustee with respect to the
Securities of any series shall have been so appointed by the Company and the
Guarantor, or the Holders of Securities and accepted appointment in the
manner hereinafter provided, any Holder of a Security who has been a bona
fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with
respect to Securities of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR. (a) In case of the
appointment hereunder of a successor Trustee with respect to all Securities,
every such successor Trustee shall execute, acknowledge and deliver to the
Company, the Guarantor and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company, the Guarantor or
the successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee, and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder, subject nevertheless to its claim, if any,
provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the Guarantor, the retiring Trustee and each successor Trustee with respect to
the Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such appointment
and which (1) shall contain such provisions as shall be necessary or desirable
to transfer and confirm to, and to vest in, each successor Trustee all the
rights, powers, trusts and duties of the retiring Trustee with respect to the
Securities of that or those series to which the appointment of such successor
Trustee relates, (2) if the retiring Trustee is not retiring with respect to all
Securities, shall contain such provisions as shall be deemed necessary or
desirable to confirm that all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Securities of that or those series as to
which the retiring Trustee is not retiring shall
57
continue to be vested in the retiring Trustee, and (3) shall add to or
change any of the provisions of this Indenture as shall be necessary to
provide for or facilitate the administration of the trusts hereunder by more
than one Trustee, it being understood that nothing herein or in such
supplemental indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or trusts
hereunder separate and apart from any trust or trusts hereunder administered
by any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring Trustee
shall become effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall become vested
with all the rights, powers, trusts and duties of the retiring Trustee with
respect to the Securities of that or those series to which the appointment of
such successor Trustee relates; but, on request of the Company, the Guarantor
or any successor Trustee, such retiring Trustee shall duly assign, transfer
and deliver to such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company and
the Guarantor shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 610 MERGER, CONVERSION, CONSOLIDATION OR SUCCESSION TO BUSINESS. Any
corporation into which the Trustee may be merged or converted or with which it
may be consolidated, or any corporation resulting from any merger, conversion or
consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all of the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, PROVIDED such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities or coupons shall have been
authenticated, but not delivered, by the Trustee then in office, any successor
by merger, conversion or consolidation to such authenticating Trustee may adopt
such authentication and deliver the Securities or coupons so authenticated with
the same effect as if such successor Trustee had itself authenticated such
Securities or coupons. In case any Securities or coupons shall not have been
authenticated by such predecessor Trustee, any such successor Trustee may
authenticate and deliver such Securities or coupons, in either its own name or
that of its predecessor Trustee, with the full force and effect which this
Indenture provides for the certificate of authentication of the Trustee.
SECTION 611 APPOINTMENT OF AUTHENTICATING AGENT. At any time when any of the
Securities remain Outstanding, the Trustee may appoint an Authenticating Agent
or Agents with respect to one or more series of Securities which shall be
authorized to act on behalf of the Trustee to authenticate Securities of such
series issued upon exchange, registration of transfer or partial redemption
thereof, and Securities so authenticated shall be entitled to the benefits of
this Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee
58
hereunder. Any such appointment shall be evidenced by an instrument in
writing signed by a Responsible Officer of the Trustee, a copy of which
instrument shall be promptly furnished to the Company. Wherever reference is
made in this Indenture to the authentication and delivery of Securities by
the Trustee or the Trustee's certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the
Trustee by an Authenticating Agent and a certificate of authentication
executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company
and the Guarantor and, except as may otherwise be provided pursuant to Section
301, shall at all times be a bank or trust company or corporation organized and
doing business and in good standing under the laws of the United States of
America or of any State or the District of Columbia, authorized under such laws
to act as Authenticating Agent, having a combined capital and surplus of not
less than $1,500,000 and subject to supervision or examination by Federal or
State authorities. If such Authenticating Agent publishes reports of condition
at least annually, pursuant to law or the requirements of the aforesaid
supervising or examining authority, then for the purposes of this Section, the
combined capital and surplus of such Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time an Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company and the Guarantor. The Trustee for any series of
Securities may at any time terminate the agency of an Authenticating Agent by
giving written notice of termination to such Authenticating Agent, to the
Company and the Guarantor. Upon receiving such a notice of resignation or upon
such a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
for such series may appoint a successor Authenticating Agent which shall be
acceptable to the Company and the Guarantor, and shall give notice of such
appointment to all Holders of Securities of the series with respect to which
such Authenticating Agent will serve in the manner set forth in Section 106. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent
herein. No successor Authenticating Agent shall be appointed unless eligible
under the provisions of this Section.
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The Company and the Guarantor each agree to pay to each
Authenticating Agent from time to time reasonable compensation including
reimbursement of its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
By:________________________________
as Authenticating Agent
By:________________________________
as Authenticating Agent
ARTICLE VII
HOLDERS' LISTS AND REPORTS BY TRUSTEE, GUARANTOR AND COMPANY
SECTION 701 DISCLOSURE OF NAMES AND ADDRESSES OF HOLDERS. Every Holder of
Securities or coupons, by receiving and holding the same, agrees with the
Company, the Guarantor and the Trustee that none of the Company, the Guarantor,
the Trustee, or any Authenticating Agent, any Paying Agent or any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702 REPORTS BY TRUSTEE. Within 60 days after May 15 of each year
commencing with the first May 15 after the first issuance of Securities pursuant
to this Indenture, the Trustee shall transmit by mail to all Holders of
Securities as provided in TIA Section 313(c) a brief report dated as of such May
15 if required by TIA Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee of the
60
listing of the Securities on any stock exchange.
SECTION 703 REPORTS BY COMPANY AND GUARANTOR. The Company and the Guarantor
will:
(1) file with the Trustee, within 15 days after the Company or the
Guarantor, as the case may be, 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 or
the Guarantor, as the case may be, 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 or the Guarantor, as the case may be, is not required to file
information, documents or reports pursuant to either of such Sections, then it
will file with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange as
may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance
by the Company and the Guarantor, as the case may be, with the conditions
and covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information,
documents and reports required to be filed by the Company or the Guarantor
pursuant to paragraphs (1) and (2) of this Section as may be required by
rules and regulations prescribed from time to time by the Commission.
SECTION 704 CALCULATION OF ORIGINAL ISSUE DISCOUNT. Upon request of the Trustee,
the Company shall file with the Trustee promptly at the end of each calendar
year a written notice specifying the amount of original issue discount
(including daily rates and accrual periods), if any, accrued on Outstanding
Securities as of the end of such year.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801 COMPANY OR GUARANTOR MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
Neither the Company nor the Guarantor shall consolidate with or merge with or
into any other corporation or convey or transfer its properties and assets
substantially as an entirety to any Person, unless:
61
(1) either the Company or the Guarantor, as the case may be, shall
be the continuing corporation, or the corporation (if other than the
Company or the Guarantor) formed by such consolidation or into which the
Company or the Guarantor is merged or the Person which acquires by
conveyance or transfer the properties and assets of the Company or the
Guarantor substantially as an entirety shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in
form satisfactory to the Trustee, in the case of the Company, the due and
punctual payment of the principal of (and premium, if any) and interest,
if any, on all the Securities and the performance of every covenant of
this Indenture on the part of the Company to be performed or observed,
and, in the case of the Guarantor, the due and punctual performance of the
Guarantees and the performance or observance of every covenant of this
Indenture on the part of the Guarantor to be performed or observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing;
(3) if as a result thereof any property or assets of the Guarantor
or a Restricted Subsidiary would become subject to any mortgage, lien,
pledge, charge or other encumbrance not permitted by (i) through (xi) of
paragraph (a) of Section 1006 or paragraph (b) of Section 1006, compliance
shall be effected with the first clause of paragraph (a) of Section 1006;
(4) any Person formed by the consolidation with the Company or
into which the Company is merged or which acquires by conveyance or
transfer, or which leases, the properties and assets of the Company,
substantially as an entirety and which is not organized and validly
existing under the laws of the United States, any State thereof or the
District of Columbia shall expressly agree, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to the
Trustee, to indemnify the Holder of each Security against (A) any
Additional Amounts imposed on such Holder or required to be withheld or
deducted from any payment to such Holder as a consequence of such
consolidation, merger, conveyance, transfer or lease, and (B) any costs or
expenses of the act of such consolidation, merger, conveyance, transfer or
lease; and
(5) the Company and the successor Person have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating
that such consolidation, merger, conveyance or transfer and such
supplemental indenture comply with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
SECTION 802 SUCCESSOR PERSON SUBSTITUTED. Upon any consolidation or merger, or
any conveyance or transfer of the properties and assets of the Company or the
Guarantor substantially as an entirety in accordance with Section 801, the
successor Person formed by such consolidation or into which the Company or the
Guarantor is merged or the successor Person to which such
62
conveyance or transfer is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company or the Guarantor under this
Indenture with the same effect as if such successor Person had been named as the
Company or the Guarantor, as the case may be, herein; and in the event of any
such conveyance or transfer, the Company or the Guarantor as the case may be,
shall be discharged from all obligations and covenants under this Indenture and
the Securities and coupons, or the Guarantees, as the case may be, and may be
dissolved and liquidated.
SECTION 803 ASSUMPTION BY GUARANTOR.
The Guarantor, or any of its Subsidiaries, may directly
assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of
the principal of, any premium and interest on and any Additional Amounts with
respect to all the Securities and the performance of every covenant of this
Indenture on the part of the Company to be performed or observed. Upon any such
assumption, the Guarantor or such Subsidiary 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 the Guarantor or such Subsidiary had
been named as the Company herein, and the Company shall be released from all
obligations and covenants with respect to the Securities. No such assumption
shall be permitted unless the Guarantor has delivered to the Trustee (i) an
Officers' Certificate and an Opinion of Counsel, each stating that such
assumption and supplemental indenture comply with this Section, and that all
conditions precedent herein provided for relating to such transaction have been
complied with and that, in the event of assumption by a Subsidiary, the
Guarantee and all other covenants of the Guarantor herein remain in full force
and effect and (ii) an opinion of independent counsel that the Holders of
Securities or related coupons (assuming such Holders are only taxed as residents
of the United States) shall have no materially adverse United States federal tax
consequences as a result of such assumption, and that, if any Securities are
then listed on the New York Stock Exchange, that such Securities shall not be
delisted as a result of such assumption.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 901 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS. Without the
consent of any Holders of Securities or coupons, the Company and the Guarantor,
when authorized by or pursuant to a Board Resolution of the Company and the
Guarantor, as applicable, 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 or
the Guarantor and the assumption by any such successor of the covenants of
the Company or the Guarantor, as the case may be, herein and in the
Securities and Guarantees; or
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(2) to add to the covenants of the Company or the Guarantor for
the benefit of the Holders of all or any series of Securities (and if such
covenants are to be for the benefit of less than all series of Securities,
stating that such covenants are expressly being included solely for the
benefit of such series) or to surrender any right or power herein
conferred upon the Company or the Guarantor; or
(3) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the
benefit of such series); PROVIDED, HOWEVER, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or
longer than that allowed in the case of other defaults) or may provide for
an immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of the
Holders of a majority in aggregate principal amount of that or those
series of Securities to which such additional Events of Default apply to
waive such default; or
(4) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to
change or eliminate any restrictions on the payment of principal of or any
premium or interest on Bearer Securities, to permit Bearer Securities to
be issued in exchange for Registered Securities, to permit Bearer
Securities to be issued in exchange for Bearer Securities of other
authorized denominations or to permit or facilitate the issuance of
Securities in uncertificated form; PROVIDED that any such action shall not
adversely affect the interests of the Holders of Securities of any series
or any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; PROVIDED that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to
the benefit of such provision; or
(6) to secure the Securities or the Guarantees pursuant to the
requirements of Section 801 or 1006, or otherwise; or
(7) to establish the form or terms of Securities of any series and
any related coupons or Guarantees as permitted by Sections 201 and 301,
including the provisions and procedures relating to Securities convertible
into or exchangeable for any securities of any Person (including the
Guarantor); or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or
more series and to add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or
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(9) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein, or to
make any other provisions with respect to matters or questions arising
under this Indenture; PROVIDED that any such action shall not adversely
affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(10) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; PROVIDED that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related
coupons or any other series of Securities in any material respect; or
(11) to effect the assumption by the Guarantor or a subsidiary
thereof pursuant to Section 803.
SECTION 902 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS. With the consent of
the Holders of not less than a majority in principal amount of all Outstanding
Securities affected by such supplemental indenture, by Act of said Holders
delivered to the Company, the Guarantor and the Trustee, the Company and the
Guarantor, when authorized by or pursuant to a Board Resolution of the Company
and the Guarantor, as the case may be, and the Trustee may enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of modifying in any manner the rights of the Holders of
Securities and any related coupons under this Indenture; PROVIDED, HOWEVER, that
no such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or premium, if
any, on) or any installment of principal of or interest or Additional
Amounts on, any Security; or reduce the principal amount thereof or the
rate of interest thereon, or any premium payable upon the redemption
thereof, or change any obligation of the Company or the Guarantor to pay
Additional Amounts pursuant to Section 1004 (except as contemplated by
Section 801(1) and permitted by Section 901(1)), or reduce the portion of
the principal of an Original Issue Discount Security or Indexed Security
that would be due and payable upon a declaration of acceleration of the
Maturity thereof pursuant to Section 502 or the amount thereof provable in
bankruptcy pursuant to Section 504, or adversely affect any right of
repayment at the option of the Holder of any Security, or change any Place
of Payment where, or the Currency in which, any Security or any premium or
interest or Additional Amounts thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or after the
Stated Maturity thereof (or, in the case of redemption or repayment at the
option of the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be), or adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 301 herein,
or
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(2) reduce the percentage in principal amount of the Outstanding
Securities of any series, the consent of whose Holders is required for any
such supplemental indenture, or the consent of whose Holders is required
for any waiver with respect to such series (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements
of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513 or
Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the Holder of each Outstanding Security affected
thereby, or
(4) change in any manner adverse to the interests of the Holders
of Securities of any series the terms and conditions of the obligations of
the Guarantor in respect of the due and punctual payment of the principal
thereof and any premium and interest thereof or any sinking fund payments
provided in respect thereof.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
SECTION 903 EXECUTION OF SUPPLEMENTAL INDENTURES. In executing, or accepting the
additional trusts created by, any supplemental indenture permitted by this
Article or the modification thereby of the trusts created by this Indenture, the
Trustee shall be entitled to receive, and shall (subject to Section 315 of the
Trust Indenture Act) be fully protected in relying upon, an Opinion of Counsel
stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to,
enter into any such supplemental indenture which affects the Trustee's own
rights, duties or immunities under this Indenture or otherwise.
SECTION 904 EFFECT OF SUPPLEMENTAL INDENTURES. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder and of any coupon appertaining
thereto shall be bound thereby.
SECTION 905 CONFORMITY WITH TRUST INDENTURE ACT. Every supplemental indenture
executed pursuant to this Article shall conform to the requirements of the Trust
Indenture Act as then in effect.
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SECTION 906 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES. Securities of
any series authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall, if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company and the Guarantor shall so
determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee, the Company and the Guarantor , to any such supplemental
indenture may be prepared and executed by the Company, the Guarantees noted or
endorsed thereon may be prepared and executed by the Guarantor and such
Securities may be authenticated and delivered by the Trustee in exchange for
Outstanding Securities of such series.
ARTICLE X
COVENANTS
SECTION 1001 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST. The Company covenants
and agrees for the benefit of the Holders of each series of Securities that it
will duly and punctually pay the principal of (and premium, if any) and
interest, if any, on the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this
Indenture. Any interest due on Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 1004 in respect
of principal of (or premium, if any, on) such a Security, shall be payable only
upon presentation and surrender of the several coupons for such interest
installments as are evidenced thereby as they severally mature. Unless otherwise
specified with respect to Securities of any series pursuant to Section 301, at
the option of the Company, all payments of principal may be paid by check to the
registered Holder of the Registered Security or other person entitled thereto
against surrender of such Security. Unless otherwise specified as contemplated
by Section 301 with respect to any series of Securities, any interest due on
Bearer Securities on or before Maturity shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature.
SECTION 1002 MAINTENANCE OF OFFICE OR AGENCY. If Securities of a series are
issuable only as Registered Securities, the Company shall maintain in each Place
of Payment for any series of Securities an office or agency where Securities of
that series may be presented or surrendered for payment, where Securities of
that series may be surrendered for registration of transfer or exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where notices and
demands to or upon the Company or the Guarantor, as the case may be, in respect
of the Securities of that series and this Indenture may be served. If Securities
of a series are issuable as Bearer Securities, the Company will maintain (A) in
the Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for
payment, where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, where notices and
demands to or upon the Company or the Guarantor, as the case
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may be, in respect of the Securities of that series and this Indenture may be
served and where Bearer Securities of that series and related coupons may be
presented or surrendered for payment in the circumstances described in the
following paragraph (and not otherwise), (B) subject to any laws or regulations
applicable thereto, in a Place of Payment for that series which is located
outside the United States, an office or agency where Securities of that series
and related coupons may be presented and surrendered for payment; PROVIDED,
HOWEVER, that if the Securities of that series are listed on the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Company or the Guarantor, as the case
may be, will maintain a Paying Agent for the Securities of that series in
Luxembourg or any other required city located outside the United States, as the
case may be, so long as the Securities of that series are listed on such
exchange, and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or
agency where any Registered Securities of that series may be surrendered for
registration of transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, and where notices
and demands to or upon the Company or the Guarantor, as the case may be, in
respect of the Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of each such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, except that Bearer Securities of that series and the related coupons
may be presented and surrendered for payment at the offices specified in the
Security, in London, England, and the Company hereby appoints the same as its
agent to receive such respective presentations, surrenders, notices and demands,
and the Company hereby appoints the Trustee its agent to receive all such
presentations, surrenders, notices and demands.
If Securities of a series are issuable only as Registered
Securities, the Guarantor shall maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment pursuant to any Guarantee and where notices
and demands to or upon the Guarantor in respect of any Guarantee and this
Indenture may be served. If Securities of a series are issuable as Bearer
Securities, the Guarantor will maintain (A) in the Borough of Manhattan, The
City of New York, an office or agency where any Registered Securities of that
series may be presented or surrendered for payment pursuant to any Guarantee and
where notices and demands to or upon the Guarantor in respect of any Guarantee
and this Indenture may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment pursuant to any
Guarantee in the circumstances described in the following paragraph (and not
otherwise) and (B) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series which is located outside the United States, an
office or agency where Securities of that series and related coupons may be
presented and surrendered for payment pursuant to any Guarantee; PROVIDED,
HOWEVER, that if the Securities of that series are listed on the Luxembourg
Stock Exchange or any other stock exchange located outside the United States and
such stock exchange shall so require, the Guarantor will maintain a Paying Agent
for the Securities of that series in Luxembourg or any other required city
located outside the United States, as the case may be, so long as the Securities
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of that series are listed on such exchange. The Guarantor will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any time the Guarantor shall fail to
maintain any such required office or agency or shall fail to furnish the Trustee
with the address thereof, such presentations, surrenders, notices and demands
may be made or served at the Corporate Trust Office of the Trustee, except that
Bearer Securities of that series and the related coupons may be presented and
surrendered for payment at the offices specified in the Security, in London,
England, and the Guarantor hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Guarantor
hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest by or on
behalf of the Guarantor on Bearer Securities shall be made at any office or
agency of the Company or the Guarantor, as the case may be, in the United States
or by check mailed to any address in the United States or by transfer to an
account maintained with a bank located in the United States; PROVIDED, HOWEVER,
that, if the Securities of a series are payable in Dollars, payment of principal
of (and premium, if any) and interest, if any, by or on behalf of the Guarantor
on any Bearer Security shall be made at the office of the Company's or the
Guarantor's, as the case may be, Paying Agent in the Borough of Manhattan, The
City of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for such purpose by the Company or the
Guarantor, as the case may be, in accordance with this Indenture, is illegal or
effectively precluded by exchange controls or other similar restrictions.
The Company or the Guarantor 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 of such purposes, and
may from time to time rescind such designations; PROVIDED, HOWEVER, that no such
designation or rescission shall in any manner relieve the Company or the
Guarantor of its obligation to maintain an office or agency in accordance with
the requirements set forth above for Securities of any series for such purposes.
The Company will give prompt written notice to the Trustee of any such
designation or rescission and of any change in the location of any such other
office or agency. Unless otherwise specified with respect to any Securities
pursuant to Section 301 with respect to a series of Securities, the Company and
the Guarantor each hereby designate as Places of Payment for each series of
Securities the office or agency of the Company or the Guarantor, as the case may
be, in the Borough of Manhattan, The City of New York, and initially appoints
the Trustee at its Corporate Trust Office as Paying Agent in such city and as
its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series (i) are
denominated in a currency other than Dollars or (ii) may be payable in a
currency other than Dollars, or so long as it is required under any other
provision of the Indenture, then the Company or the Guarantor, as the case may
be, will
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maintain with respect to each such series of Securities, or as so required, at
least one Exchange Rate Agent.
SECTION 1003 MONEY FOR SECURITIES PAYMENTS TO BE HELD IN TRUST. If the Company
shall at any time act as its own, or authorize the Guarantor to act as, Paying
Agent with respect to any series of any Securities and any related coupons, it
will, on or before each due date of the principal of (or premium, if any) or
interest, if any, on any of the Securities of that series, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the principal of (and premium, if any) and interest, if any, on Securities of
such series so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided, and will promptly notify the Trustee
of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in the preceding paragraph) sufficient to pay the principal (or
premium, if any) or interest or Additional Amounts, if any, so becoming due,
such sum to be held in trust for the benefit of the Persons entitled to such
principal, premium or interest and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company or the Guarantor 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 or Guarantor Order direct any Paying Agent to
pay, to the Trustee all sums held in trust by the Company or such Paying Agent,
such sums to be held by the Trustee upon the same trusts as those upon which
such sums were held by the Company or such Paying Agent; and, upon such payment
by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Company or the Guarantor, in trust for the payment of the principal of (or
premium, if any) or interest, if any, on any Security of any series and
remaining unclaimed for two years after such principal, premium or interest has
become due and payable shall be paid to the Company upon Company Request (if
then held by the Company) or, if deposited by the Guarantor, paid to the
Guarantor on Guarantor Request shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company and the Guarantor for payment of such principal, premium or
interest on any Security, without interest thereon, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all liability
of the Company as trustee thereof, shall thereupon cease; provided, HOWEVER,
that the Trustee or such Paying Agent, before being required to make any such
repayment, may at the expense of the Company or the Guarantor cause to be
published once, in an Authorized Newspaper, notice that such
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money remains unclaimed and that, after a date specified therein, which shall
not be less than 30 days from the date of such publication, any unclaimed
balance of such money then remaining will be repaid to the Company or the
Guarantor, as the case may be.
SECTION 1004 ADDITIONAL AMOUNTS. All payments of, or in respect of, principal of
and any premium and interest on the Securities, and all payments pursuant to any
Guarantee, shall be made without withholding or deduction for, or on account of,
any present or future taxes, duties, assessments or governmental charges of
whatever nature imposed or levied by or on behalf of The Netherlands or any
political subdivision or taxing authority thereof or therein, unless such taxes,
duties, assessments or governmental charges are required by The Netherlands or
any such subdivision or authority to be withheld or deducted. In that event, the
Company or the Guarantor, as applicable, will pay such additional amounts of, or
in respect of, principal and any premium and interest ("Additional Amounts") as
will result (after deduction of such taxes, duties, assessments or governmental
charges and any additional taxes, duties, assessments or governmental charges
payable in respect of such) in the payment to each Holder of a Security of the
amounts which would have been payable in respect of such Security or the
Guarantee thereof, as the case may be, had no such withholding or deduction been
required, except that no Additional Amounts shall be so payable for or on
account of:
(1) any tax, duty, assessment or other governmental charge imposed
by the United States or any political subdivision or taxing authority
thereof or therein;
(2) any tax, duty, assessment or other governmental charge which
would not have been imposed but for (A) the existence of any present or
former connection between such Holder (or between a fiduciary, settlor,
beneficiary, member, shareholder or possessor of a power over such Holder,
if such Holder is an estate, trust, partnership or corporation) and The
Netherlands, including, without limitation, such Holder (or such
fiduciary, settlor, beneficiary, member, shareholder or possessor) being
or having been a citizen, national or resident thereof, or being or having
been engaged in business or present therein or having or having had a
permanent establishment therein, but not including the mere holding or
ownership of a debt security, or the collection of principal of and
interest on, or the enforcement of, a debt security, or (B) the
presentation of such Security or the Guarantee thereof for payment more
than 30 days after the date on which such payment became due or was
provided for, whichever is later;
(3) any estate, inheritance, gift, sale, transfer, personal
property or similar tax, assessment or other governmental charge or any
other tax, assessment or other governmental charge which is payable
otherwise than by withholding or deduction from payments of (or in respect
of) principal of or any premium or interest on the Securities or the
Guarantee(s) thereof;
(4) any tax, assessment or other governmental charge that is
imposed or withheld by reason of the failure to comply by the Holder or
the beneficial owner of a Security with a request of the Company or the
Guarantor addressed to the Holder (A) to provide information concerning
the nationality, residence or identity of the Holder or
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such beneficial owner or (B) to make any declaration or other similar
claim or satisfy any information or reporting requirement, which, in the
case of (A) or (B), is required or imposed by statute, treaty, regulation
or administrative practice of the taxing jurisdiction as a precondition to
exemption from all or part of such tax, assessment or other governmental
charge; or
(5) any combination of items (1), (2), (3) and (4).
Additionally, Additional Amounts shall not be paid with
respect to any payment in respect of any Security to any Holder who is a
fiduciary or partnership or other than the sole beneficial owner of such payment
to the extent such payment would be required by the laws of The Netherlands (or
any political subdivision or taxing authority thereof or therein) to be included
in the income for tax purposes of a beneficiary or settlor with respect to such
fiduciary or a member of such partnership or a beneficial owner who would not
have been entitled to such Additional Amounts had it been the Holder of such
Security.
Whenever in this Indenture there is 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 payments pursuant to the Guarantee thereof)
such mention shall be deemed to include mention of the payment of Additional
Amounts provided for in this Section to the extent that, in such context,
Additional Amounts are, were or would be payable in respect thereof pursuant to
the provisions of this Section and express mention of the payment of Additional
Amounts in any provisions hereof shall not be construed as excluding Additional
Amounts in those provisions hereof where such express mention is not made.
The provisions of this Section 1004 shall apply MUTATIS
MUTANDIS to any withholding or deduction for or on account of any present or
future taxes, assessments or governmental charges of whatever nature of any
jurisdiction in which any successor Person to the Company is organized, or any
political subdivision or taxing authority thereof or therein.
SECTION 1005 STATEMENT AS TO COMPLIANCE. The Company and the Guarantor will each
deliver to the Trustee, within 120 days after the end of each fiscal year, a
brief certificate from the principal executive officer, principal financial
officer or principal accounting officer as to his or her knowledge of the
Company's or the Guarantor's, as the case may be, compliance with all conditions
and covenants under this Indenture. For purposes of this Section 1005, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1006 LIMITATION ON LIENS. (a) The Guarantor will not, nor will it permit
any Restricted Subsidiary to, issue, incur, assume or guarantee any debt
(hereinafter in this Article X referred to as "Debt") secured by any mortgage,
security interest, pledge, lien or other encumbrance (hereinafter called
"mortgage" or "mortgages") upon any Important Property of the Guarantor or of a
Restricted Subsidiary or upon any shares of stock or indebtedness of any
Restricted Subsidiary (whether such Important Property, shares of stock or
indebtedness is now owned or hereafter acquired) without in any such case
effectively providing, concurrently with
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the issuance, incurrence, assumption or guaranty of any such Debt, that the
Securities (together with, if the Guarantor shall so determine, any other
indebtedness of or guaranteed by the Guarantor or such Restricted Subsidiary
ranking equally with the Securities and then existing or thereafter created)
shall be secured equally and ratably with or prior to such Debt; PROVIDED,
HOWEVER, that the foregoing restrictions shall not apply to
(i) mortgages on any property acquired, constructed or improved by
the Guarantor or any Restricted Subsidiary after the date of this
Indenture which are created or assumed contemporaneously with, or within
120 days after, such acquisition, construction or improvement to secure or
provide for the payment of all or any part of the purchase price of such
property or the cost of such construction or improvement incurred after
the date of this Indenture, or (in addition to mortgages contemplated by
clauses (ii), (iii) and (iv) below) mortgages on any property existing at
the time of acquisition thereof; PROVIDED that such mortgages shall not
apply to any Important Property theretofore owned by the Guarantor or any
Restricted Subsidiary other than, in the case of any such construction or
improvement, any theretofore unimproved real property on which the
property so constructed, or the improvement, is located;
(ii) mortgages on any property, shares of stock, or indebtedness
existing at the time of acquisition thereof from a corporation which is
consolidated with or merged into, or substantially all of the assets of
which are acquired by, the Guarantor or a Restricted Subsidiary;
(iii) mortgages on property of a corporation existing at the time
such corporation becomes a Restricted Subsidiary;
(iv) mortgages to secure Debt of a Restricted Subsidiary to the
Guarantor or to another Restricted Subsidiary;
(v) mortgages in favor of the United States of America or any
State thereof, or any department, agency or instrumentality or political
subdivision of the United States of America or any State thereof, to
secure partial, progress, advance or other payments pursuant to any
contract or statute or to secure any indebtedness incurred for the purpose
of financing all or any part of the purchase price or the cost of
constructing or improving the property subject to such mortgages and
mortgages given to secure indebtedness incurred in connection with the
financing of construction of pollution control facilities, the interest on
which indebtedness is exempt from income taxes under the Internal Revenue
Code of the United States of America;
(vi) any deposit or pledge of assets (1) with any surety company or
clerk of any court, or in escrow, as collateral in connection with, or in
lieu of, any bond on appeal from any judgment or decree against the
Guarantor or a Restricted Subsidiary, or in connection with other
proceedings or actions at law or in equity by or against the Guarantor or
a Restricted Subsidiary, or (2) as security for the performance of any
contract or undertaking not directly or indirectly related to the
borrowing of money or the
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securing of indebtedness, if made in the ordinary course of business, or
(3) with any governmental agency, which deposit or pledge is required or
permitted to qualify the Guarantor or a Restricted Subsidiary to conduct
business, to maintain self-insurance, or to obtain the benefits of any law
pertaining to workers' compensation, unemployment insurance, old age
pensions, social security, or similar matters, or (4) made in the ordinary
course of business to obtain the release of mechanics', workmen's,
repairmen's, warehousemen's or similar liens, or the release of property
in the possession of a common carrier;
(vii) mortgages existing on property acquired by the Guarantor or a
Restricted Subsidiary through the exercise of rights arising out of
defaults on receivables acquired in the ordinary course of business;
(viii) judgment liens, so long as the finality of such judgment is
being contested in good faith and execution thereon is stayed;
(ix) mortgages for the sole purpose of extending, renewing or
replacing in whole or in part Debt secured by any mortgage referred to in
the foregoing clauses (i) to (viii), inclusive, or in this clause (ix);
PROVIDED, HOWEVER, that the principal amount of Debt secured thereby shall
not exceed the principal amount of Debt so secured at the time of such
extension, renewal or replacement, and that such extension, renewal or
replacement shall be limited to all or a part of the property which
secured the mortgage so extended, renewed or replaced (plus improvements
on such property);
(x) liens for taxes or assessments or governmental charges or
levies not yet due or delinquent, or which can thereafter be paid without
penalty, or which are being contested in good faith by appropriate
proceedings; landlord's liens on property held under lease; and any other
liens of a nature similar to those hereinabove described in this clause
(x) which do not, in the opinion of the Guarantor, materially impair the
use of such property in the operation of the business of the Guarantor or
a Restricted Subsidiary or the value of such property for the purposes of
such business;
(xi) any transaction characterized as a sale of receivables (retail
or wholesale) but reflected as secured indebtedness on a balance sheet in
conformity with generally accepted accounting principles then in effect;
(xii) mortgages on Margin Stock owned by the Guarantor and its
Restricted Subsidiaries to the extent such Margin Stock so mortgaged
exceeds 25% of the fair market value of the sum of the Important Property
of the Guarantor and the Restricted Subsidiaries plus the shares of stock
(including Margin Stock) and indebtedness issued or incurred by the
Restricted Subsidiaries; and
(xiii) mortgages on any Important Property of, or any shares of
stock or indebtedness issued or incurred by, any Restricted Subsidiary
organized under the laws of Canada.
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(b) The provisions of paragraph (a) of this Section 1006 shall not
apply to the issuance, incurrence, assumption or guarantee by the Guarantor or
any Restricted Subsidiary of Debt secured by a mortgage which would otherwise be
subject to the foregoing restrictions up to an aggregate amount which, together
with all other Debt of the Guarantor and its Restricted Subsidiaries that is
secured by mortgages (other than mortgages permitted by paragraph (a) of this
Section 1006) and would otherwise be subject to the foregoing restrictions and
the Attributable Debt in respect of Sale and Lease-back Transactions (as defined
in Section 1007) in existence at such time (other than Sale and Lease-back
Transactions which, if the Attributable Debt in respect of such Sale and
Lease-back had been a mortgage, would have been permitted by subdivision (i) of
paragraph (a) of this Section 1006 and other Sale and Lease-back Transactions
the proceeds of which have been applied or committed to be applied in accordance
with paragraph (b) or (c) of Section 1007) does not at the time exceed 5% of
Consolidated Net Tangible Assets, as shown on the audited consolidated balance
sheet contained in the latest annual report to stockholders of the Company.
The term "RESTRICTED SUBSIDIARY" shall mean any Subsidiary (i)
engaged in, or whose principal assets consist of property used by the Guarantor
or any Restricted Subsidiary in, the manufacture of products within the United
States of America or Canada, or in the sale of products principally to customers
located in the United States of America or Canada except any corporation which
is a retail dealer in which the Guarantor has, directly or indirectly, an
investment under an arrangement providing for the liquidation of such
investment, or (ii) which the Guarantor shall designate as a Restricted
Subsidiary in an Officers' Certificate delivered to the Trustee.
The term "IMPORTANT PROPERTY" shall mean (i) any manufacturing
plant, including land, all buildings and other improvements thereon, and all
manufacturing machinery and equipment located therein, used by the Guarantor or
a Restricted Subsidiary primarily for the manufacture of products to be sold by
the Guarantor or such Restricted Subsidiary, (ii) the executive office and
administrative building of the Guarantor in Moline, Illinois, and (iii) research
and development facilities, including land and buildings and other improvements
thereon and research and development machinery and equipment located therein,
except in any case property of which the aggregate fair value as determined by
the Board of Directors does not at the time exceed 1% of Consolidated Net
Tangible Assets, as shown on the audited consolidated balance sheet contained in
the latest annual report to stockholders of the Company.
The term "MARGIN STOCK" has the meaning given such term in
Regulation U of the Board of Governors of the Federal Reserve System.
The term "CONSOLIDATED NET TANGIBLE ASSETS" shall mean the
aggregate amount of assets (less applicable reserves and other items properly
deductible in accordance with generally accepted accounting principles) of the
Guarantor and of its consolidated Subsidiaries after deducting therefrom (a) all
current liabilities (excluding any constituting funded debt, as defined in
Section 1007, by reason of their being renewable or extendable) and (b) all
goodwill, trade names, trademarks, patents, unamortized debt discount and
expense and other like intangibles.
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The term "ATTRIBUTABLE DEBT" shall mean, as of any particular
time, the present value, discounted at a rate per annum equal to the weighted
average interest rate of all Securities Outstanding at the time under this
Indenture compounded semiannually, of the obligation of a lessee for rental
payments during the remaining term of any lease (including any period for
which such lease has been extended or may, at the option of the lessor, be
extended); the net amount of rent required to be paid for any such period
shall be the total amount of the rent payable by the lessee with respect to
such period, but may exclude amounts required to be paid on account of
maintenance and repairs, insurance, taxes, assessments, water rates and
similar charges; and, in the case of any lease which is terminable by the
lessee upon the payment of a penalty, such net amount shall also include the
amount of such penalty, but no rent shall be considered as required to be
paid under such lease subsequent to the first date upon which it may be so
terminated.
(c) If, upon any consolidation or merger of any Restricted
Subsidiary with or into any other corporation, or upon any consolidation or
merger of any other corporation with or into the Guarantor or any Restricted
Subsidiary or upon any sale or conveyance of the property of any Restricted
Subsidiary as an entirety or substantially as an entirety to any other
Person, or upon any acquisition by the Guarantor or any Restricted Subsidiary
by purchase or otherwise of all or any part of the property of any other
Person, any Important Property theretofore owned by the Guarantor or such
Restricted Subsidiary would thereupon become subject to any mortgage not
permitted by the terms of paragraph (a) or (b) of this Section 1006, the
Guarantor, prior to such consolidation, merger, sale or conveyance, or
acquisition, will, or will cause such Restricted Subsidiary to, secure
payment of the principal of and interest on the Securities (equally and
ratably with or prior to any other indebtedness of the Guarantor or such
Subsidiary then entitled thereto) by a direct lien on all such property prior
to all liens other than any liens theretofore existing thereon by
supplemental indenture hereto or otherwise.
(d) If at any time the Guarantor or any Restricted Subsidiary
shall issue, incur, assume or guarantee any Debt secured by any mortgage not
permitted by this Section 1006, to which the covenant in paragraph (a) of
this Section 1006 is applicable, the Company will promptly deliver to the
Trustee
(i) an Officers' Certificate stating that the covenant of the
Guarantor contained in paragraph (a) or (c) of this Section 1006 has been
complied with; and
(ii) an Opinion of Counsel to the effect that such covenant has
been complied with, and that any instruments executed by the Guarantor in
the performance of such covenant comply with the requirements of such
covenant.
In the event that the Guarantor shall hereafter secure the
Securities equally and ratably with or prior to any other obligation or
indebtedness pursuant to the provisions of this Section 1006, the Trustee is
hereby authorized to enter into an indenture or agreement supplemental hereto
and to take such action, if any, as it may deem advisable to enable it to
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enforce effectively the rights of the holders of the Securities so secured,
equally and ratably with or prior to such other obligations or indebtedness.
SECTION 1007 LIMITATION ON SALE AND LEASE-BACK TRANSACTIONS. The Guarantor
will not, nor will it permit any Restricted Subsidiary to, enter into any
arrangement with any Person providing for the leasing to the Guarantor or any
Restricted Subsidiary of any Important Property owned or hereafter acquired
by the Guarantor or such Restricted Subsidiary (except for temporary leases
for a term, including any renewal thereof, of not more than three years and
except for leases between the Guarantor and a Restricted Subsidiary or
between Restricted Subsidiaries), which Important Property has been or is to
be sold or transferred by the Guarantor or such Restricted Subsidiary to such
Person (herein referred to as a "Sale and Lease-back Transaction") unless the
net proceeds of such sale are at least equal to the fair value (as determined
by the Board of Directors) of such property and either (a) the Guarantor or
such Restricted Subsidiary would be entitled, pursuant to the provisions of
(1) clause (a) (i) of paragraph (a) of Section 1006 or (2) paragraph (b) of
Section 1006 hereof, to incur Debt secured by a mortgage on the Important
Property to be leased without equally and ratably securing the Securities, or
(b) the Guarantor shall, and in any such case the Guarantor covenants that it
will, within 120 days of the effective date of any such arrangement, apply an
amount equal to the fair value (as so determined) of such property to the
redemption pursuant to Section 1101 hereof or the purchase and retirement of
Securities or to the payment or other retirement of funded debt for money
borrowed, incurred or assumed by the Guarantor which ranks senior to or pari
passu with the Securities or of funded debt for money borrowed, incurred or
assumed by any Restricted Subsidiary (other than, in either case, funded debt
owned by the Guarantor or any Restricted Subsidiary), or (c) the Guarantor
shall, at or prior to the time of entering into the Sale and Lease-back
Transaction, enter into a bona fide commitment or commitments to expend for
the acquisition or improvement of an Important Property an amount at least
equal to the fair value (as so determined) of such property. For this
purpose, funded debt means any Debt which by its terms matures at or is
extendable or renewable at the sole option of the obligor without requiring
the consent of the obligee to a date more than twelve months after the date
of the creation of such Debt.
SECTION 1008 WAIVER OF CERTAIN COVENANTS. The Company and the Guarantor, as
the case may be, may omit in any particular instance to comply with any term,
provision or condition set forth in Sections 1006, 1007 and, as specified
pursuant to Section 301(15) for Securities of any series, in any covenants of
the Company or the Guarantor added to Article X pursuant to Section 301(14)
or Section 301(15) in connection with Securities of a series, if before or
after the time for such compliance the Holders of at least a majority in
principal amount of all outstanding Securities, by Act of such Holders, waive
such compliance in such instance or generally waive compliance with such
term, provision or condition, but no such waiver shall extend to or affect
such term, provision or condition except to the extent so expressly waived,
and, until such waiver shall become effective, the obligations of the Company
and the Guarantor and the duties of the Trustee in respect of any such term,
provision or condition shall remain in full force and effect.
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ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 1101 APPLICABILITY OF ARTICLE. Securities of any series which are
redeemable before their Stated Maturity shall be redeemable in accordance with
their terms and (except as otherwise specified as contemplated by Section 301
for Securities of any series) in accordance with this Article.
SECTION 1102 ELECTION TO REDEEM; NOTICE TO TRUSTEE. The election of the Company
to redeem any Securities shall be evidenced by or pursuant to a Board
Resolution. In case of any redemption at the election of the Company of less
than all of the Securities of any series, the Company shall, at least 60 days
prior to the Redemption Date fixed by the Company (unless a shorter notice shall
be satisfactory to the Trustee), notify the Trustee in writing of such
Redemption Date and of the principal amount of Securities of such series to be
redeemed. In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers' Certificate evidencing compliance with such restriction.
SECTION 1103 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED. If less than all
the Securities of any series issued on the same day with the same terms are to
be redeemed, the particular Securities to be redeemed shall be selected not more
than 60 days prior to the Redemption Date by the Trustee, from the Outstanding
Securities of such series issued on such date with the same terms not previously
called for redemption, by such method as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or
any integral multiple thereof) of the principal amount of Securities of such
series of a denomination larger than the minimum authorized denomination for
Securities of that series.
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial
redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall
relate, in the case of any Security redeemed or to be redeemed only in part,
to the portion of the principal amount of such Security which has been or is
to be redeemed.
SECTION 1104 NOTICE OF REDEMPTION. Notice of redemption shall be given in the
manner provided in Section 106, not less than 30 days nor more than 60 days
prior to the Redemption Date, unless a shorter period is specified by the terms
of such series established pursuant to Section 301, to each Holder of Securities
to be redeemed, but failure to give such notice in the manner herein provided to
the Holder of any Security designated for redemption as a whole or in part, or
any defect in the notice to any such Holder, shall not affect the validity of
the proceedings for the redemption of any other such Security or portion
thereof.
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Any notice that is mailed to the Holders of Registered Securities
in the manner herein provided shall be conclusively presumed to have been
duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and accrued interest, if any, to
the Redemption Date payable as provided in Section 1106,
(3) if less than all Outstanding Securities of any series
are to be redeemed, the identification (and, in the case of partial
redemption, the principal amount) of the particular Security or
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the Holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided in
Section 1106 will become due and payable upon each such Security, or
the portion thereof, to be redeemed and, if applicable, that interest
thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons appertaining
thereto, if any, maturing after the Redemption Date, are to be
surrendered for payment of the Redemption Price and accrued interest,
if any,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and
any Registered Securities of such series are not to be redeemed, and if
such Bearer Securities may be exchanged for Registered Securities not
subject to redemption on this Redemption Date pursuant to Section 305
or otherwise, the last date, as determined by the Company, on which
such exchanges may be made, and
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(10) the CUSIP number or the Euroclear or the Clearstream
reference numbers of such Security, if any.
Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105 DEPOSIT OF REDEMPTION PRICE. On or prior to any Redemption Date,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, which it may not do in the case of a
sinking fund payment under Article XII, segregate and hold in trust as provided
in Section 1003) an amount of money in the Currency in which the Securities of
such series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) sufficient to pay on the Redemption Date the
Redemption Price of, and (except if the Redemption Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof which
are to be redeemed on that date.
SECTION 1106 SECURITIES PAYABLE ON REDEMPTION DATE. Notice of redemption having
been given as aforesaid, the Securities so to be redeemed shall, on the
Redemption Date, become due and payable at the Redemption Price therein
specified in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Sections 312(b), 312(d)
and 312(e)) (together with accrued interest, if any, to the Redemption Date),
and from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest, if any) such Securities shall if the
same were interest-bearing cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; PROVIDED, however, that installments of interest on
Bearer Securities whose Stated Maturity is on or prior to the Redemption Date
shall be payable only at an office or agency located outside the United States
(except as otherwise provided in Section 1002) and, unless otherwise specified
as contemplated by Section 301, only upon presentation and surrender of coupons
for such interest, and PROVIDED FURTHER that installments of interest on
Registered Securities whose Stated Maturity is on or prior to the Redemption
Date shall be payable to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on the
relevant Record Dates according to their terms and the provisions of Section
307.
If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a
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deduction shall have been made from the Redemption Price, such Holder shall
be entitled to receive the amount so deducted; PROVIDED, HOWEVER, that
interest or Additional Amounts represented by coupons shall be payable only
at an office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified as contemplated by
Section 301, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the Redemption Price shall, until paid,
bear interest from the Redemption Date at the rate of interest set forth in
such Security or, in the case of an Original Issue Discount Security, at the
Yield to Maturity of such Security.
SECTION 1107 SECURITIES REDEEMED IN PART. Any Registered Security which is to
be redeemed only in part (pursuant to the provisions of this Article or of
Article XII) shall be surrendered at a Place of Payment therefor (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and the Trustee
duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute, the Guarantor shall execute the
Guarantee noted or endorsed on, and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge a new Security
or Securities of the same series, of any authorized denomination as requested
by such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. However,
if less than all the Securities of any series with differing issue dates,
interest rates and stated maturities are to be redeemed, the Company in its
sole discretion shall select the particular Securities to be redeemed and
shall notify the Trustee in writing thereof at least 45 days prior to the
relevant redemption date.
SECTION 1108 OPTIONAL REDEMPTION DUE TO CHANGES IN TAX TREATMENT.
Each series of Securities may be redeemed at the option of the
Company or the Guarantor (or their successors) in whole but not in part at
any time (except in the case of Securities that have a variable rate of
interest, which may be redeemed on any Interest Payment Date) at a Redemption
Price equal to the principal amount thereof plus accrued interest to the date
fixed for redemption (except in the case of Outstanding Original Issue
Discount Securities which may be redeemed at the Redemption Price specified
by the terms of such series of Securities) if, (i) the Company or the
Guarantor is or would be required to pay Additional Amounts as a result of
any change in or amendment to the laws or any regulations or rulings
promulgated thereunder of The Netherlands (or in the case of a successor
Person to the Company, of the jurisdiction in which such successor Person is
organized or any political subdivision or taxing authority thereof or
therein) or any change in the official application or interpretation of such
laws, regulations or rulings, or any change in the official application or
interpretation of, or any execution of or amendment to, any treaty or
treaties affecting taxation to which The Netherlands (or such other
jurisdiction or political subdivision or taxing authority) is a party, which
change, execution or amendment becomes effective on or after the date of
issuance of such series pursuant to Section 301(7) (or in the case of a
successor Person to the Company, the date on which such successor Person
became such or in the case of an assumption by the Guarantor or its
Subsidiaries of obligations of the Company under the Securities, the date
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of such assumption), or (ii) as a result of any change in the official
application or interpretation of, or any execution of or amendment to, any
treaty or treaties affecting taxation to which The Netherlands (or in the
case of a successor Person to the Company, to which the jurisdiction in which
such successor Person is organized or any political subdivision or taxing
authority thereof or therein) is a party, which change, execution or
amendment becomes effective on or after a date on which the Guarantor or any
of its Subsidiaries (an "Intercompany Debtor") borrows money from the
Company, the Intercompany Debtor is or would be required to deduct or
withhold tax on any payment to the Company to enable the Company to make any
payment of principal, premium, if any, or interest, and the payment of such
Additional Amounts, in the case of clause (i), or such deductions or
withholding, in the case of clause (ii), cannot be avoided by the use of any
reasonable measures available to the Company, the Guarantor or the
Intercompany Debtor. Prior to the giving of notice of redemption of such
Securities pursuant to this Indenture, the Company will deliver to the
Trustee an Officers' Certificate, stating that the Company is entitled to
effect such redemption and setting forth in reasonable detail a statement of
circumstances showing that the conditions precedent to the right of the
Company to redeem such Securities pursuant to this Section have been
satisfied.
Further, if, pursuant to Section 801(4) of this Indenture, a
Person into which the Company is merged or to whom the Company has conveyed,
transferred or leased its properties or assets has been or would be required
to pay any Additional Amounts as therein provided, each series of Securities
may be redeemed at the option of such Person in whole, but not in part, at
any time (except in the case of Securities that have a variable rate of
interest, which may be redeemed on any Interest Payment Date), at a
redemption price equal to the principal amount thereof plus accrued interest
to the date fixed for redemption (except in the case of Outstanding Original
Issue Discount Securities which may be redeemed at the Redemption Price
specified by the terms of such series of Securities). Prior to the giving of
notice of redemption of such Securities pursuant to this Indenture, such
Person shall deliver to the Trustee an Officers' Certificate, stating that
such Person is entitled to effect such redemption and setting forth in
reasonable detail a statement of circumstances showing that the conditions
precedent to the right of such Person to redeem such Securities pursuant to
this Section have been satisfied.
ARTICLE XII
SINKING FUNDS
SECTION 1201 APPLICABILITY OF ARTICLE. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 301 for Securities of
such series.
The minimum amount of any sinking fund payment provided for by
the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
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subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202 SATISFACTION OF SINKING FUND PAYMENTS WITH SECURITIES. The Company
may, in satisfaction of all or any part of any mandatory sinking fund payment
with respect to the Securities of a series, (1) deliver Outstanding Securities
of such series (other than any previously called for redemption) together in the
case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto and (2) apply as a credit Securities of such series which
have been redeemed either at the election of the Company pursuant to the terms
of such Securities or through the application of permitted optional sinking fund
payments pursuant to the terms of such Securities, as provided for by the terms
of such Securities; PROVIDED that such Securities so delivered or applied as a
credit have not been previously so credited. Such Securities shall be received
and credited for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 1203 REDEMPTION OF SECURITIES FOR SINKING FUND. Not less than 60 days
prior to each sinking fund payment date for Securities of any series, the
Company will deliver to the Trustee an Officers' Certificate specifying the
amount of the next ensuing mandatory sinking fund payment for that series
pursuant to the terms of that series, the portion thereof, if any, which is to
be satisfied by payment of cash in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301 for
the Securities of such series and except, if applicable, as provided in Sections
312(b), 312(d) and 312(e)) and the portion thereof, if any, which is to be
satisfied by delivering and crediting Securities of that series pursuant to
Section 1202, and the optional amount, if any, to be added in cash to the next
ensuing mandatory sinking fund payment, and will also deliver to the Trustee any
Securities to be so delivered and credited. If such Officers' Certificate shall
specify an optional amount to be added in cash to the next ensuing mandatory
sinking fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than 30 days before each such sinking fund payment
date the Trustee shall select the Securities to be redeemed upon such sinking
fund payment date in the manner specified in Section 1103 and cause notice of
the redemption thereof to be given in the name of and at the expense of the
Company in the manner provided in Section 1104. Such notice having been duly
given, the redemption of such Securities shall be made upon the terms and in the
manner stated in Sections 1106 and 1107.
ARTICLE XIII
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301 APPLICABILITY OF ARTICLE. Repayment of Securities of any series
before their Stated Maturity at the option of Holders thereof shall be made in
accordance with the terms of such Securities and (except as otherwise specified
by the terms of such series established pursuant to Section 301) in accordance
with this Article.
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SECTION 1302 REPAYMENT OF SECURITIES. Securities of any series subject to
repayment in whole or in part at the option of the Holders thereof will, unless
otherwise provided in the terms of such Securities, be repaid at the Repayment
Price thereof, together with interest, if any, thereon accrued to the Repayment
Date specified in or pursuant to the terms of such Securities. The Company and
the Guarantor covenant that on or before the Repayment Date the Company or the
Guarantor will deposit with the Trustee or with a Paying Agent (or, if the
Company or the Guarantor is acting as its own Paying Agent, segregate and hold
in trust as provided in Section 1003) an amount of money in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)) sufficient to pay
the Repayment Price of, and (except if the Repayment Date shall be an Interest
Payment Date) accrued interest on, all the Securities or portions thereof, as
the case may be, to be repaid on such date.
SECTION 1303 EXERCISE OF OPTION. Securities of any series subject to repayment
at the option of the Holders thereof will contain an "Option to Elect Repayment"
form on the reverse of such Securities. To be repaid at the option of the
Holder, any Security so providing for such repayment, with the "Option to Elect
Repayment" form on the reverse of such Security duly completed by the Holder (or
by the Holder's attorney duly authorized in writing), must be received by the
Company at the Place of Payment therefor specified in the terms of such Security
(or at such other place or places of which the Company shall from time to time
notify the Holders of such Securities) not earlier than 45 days nor later than
30 days prior to the Repayment Date. If less than the entire Repayment Price of
such Security is to be repaid in accordance with the terms of such Security, the
portion of the Repayment Price of such Security to be repaid, in increments of
the minimum denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of such Security surrendered that is not to be repaid, must be
specified. Any Security providing for repayment at the option of the Holder
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the Company
and the Guarantor.
SECTION 1304 WHEN SECURITIES PRESENTED FOR REPAYMENT BECOME DUE AND PAYABLE. If
Securities of any series providing for repayment at the option of the Holders
thereof shall have been surrendered as provided in this Article and as provided
by or pursuant to the terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and payable and shall
be paid by the Company or the Guarantor on the Repayment Date therein specified,
and on and after such Repayment Date (unless the Company and the Guarantor shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the
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Repayment Price of such Security so to be repaid shall be paid by the
Company or the Guarantor, together with accrued interest, if any, to the
Repayment Date; PROVIDED, HOWEVER, that coupons whose Stated Maturity is on or
prior to the Repayment Date shall be payable only at an office or agency located
outside the United States (except as otherwise provided in Section 1002) and,
unless otherwise specified pursuant to Section 301, only upon presentation and
surrender of such coupons; and PROVIDED FURTHER that, in the case of Registered
Securities, installments of interest, if any, whose Stated Maturity is on or
prior to the Repayment Date shall be payable (but without interest thereon,
unless the Company and the Guarantor shall default in the payment thereof) to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such at the close of business on the relevant Record Dates
according to their terms and the provisions of Section 307.
If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company, the Guarantor and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder of such Security shall surrender to the
Trustee or any Paying Agent any such missing coupon in respect of which a
deduction shall have been made as provided in the preceding sentence, such
Holder shall be entitled to receive the amount so deducted; PROVIDED, HOWEVER,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in
Section 1002) and, unless otherwise specified as contemplated by Section 301,
only upon presentation and surrender of those coupons.
If any Security surrendered for repayment shall not be so
repaid upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1305 SECURITIES REPAID IN PART. Upon surrender of any Registered
Security which is to be repaid in part only, the Company shall execute, the
Guarantor shall execute the Guarantee noted or endorsed on, and the Trustee
shall authenticate and deliver to the Holder of such Security, without service
charge and at the expense of the Company, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
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ARTICLE XIV
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401 APPLICABILITY OF ARTICLE; COMPANY'S AND GUARANTOR'S OPTION TO
EFFECT DEFEASANCE OR COVENANT DEFEASANCE. If pursuant to Section 301 provision
is made for either or both of (a) defeasance of the Securities of or within a
series under Section 1402 or (b) covenant defeasance of the Securities of or
within a series under Section 1403, then the provisions of such Section or
Sections, as the case may be, together with the other provisions of this Article
(with such modifications thereto as may be specified pursuant to Section 301
with respect to any Securities), shall be applicable to such Securities and any
coupons appertaining thereto, and the Company and the Guarantor may at their
option by Board Resolution, at any time, with respect to such Securities and any
coupons appertaining thereto, elect to have Section 1402 (if applicable) or
Section 1403 (if applicable) be applied to such Outstanding Securities and any
coupons appertaining thereto upon compliance with the conditions set forth below
in this Article.
SECTION 1402 DEFEASANCE AND DISCHARGE. Upon their exercise of the above option
applicable to this Section with respect to any Securities of or within a series,
each of the Company and the Guarantor shall be deemed to have been discharged
from their respective obligations with respect to such Outstanding Securities
and any coupons appertaining thereto and under the Guarantee in respect thereof
on the date the conditions set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company and the
Guarantor shall be deemed to have paid and discharged the entire indebtedness
represented by such Outstanding Securities and any coupons appertaining thereto
and under the Guarantee in respect thereof which shall thereafter be deemed to
be "Outstanding" only for the purposes of Section 1405 and the other Sections of
this Indenture referred to in clauses (A) and (B) of this Section, and to have
satisfied all its other obligations under such Securities and any coupons
appertaining thereto and under the Guarantee in respect thereof and this
Indenture insofar as such Securities and any coupons appertaining thereto and
the Guarantee in respect thereof are concerned (and the Trustee, at the expense
of the Company and the Guarantor shall execute proper instruments acknowledging
the same), except for the following which shall survive until otherwise
terminated or discharged hereunder: (A) the rights of Holders of such
Outstanding Securities and any coupons appertaining thereto to receive, solely
from the trust fund described in Section 1404 and as more fully set forth in
such Section, payments in respect of the principal of (and premium, if any) and
interest, if any, on such Securities and any coupons appertaining thereto when
such payments are due, (B) the Company's and the Guarantor's obligations with
respect to such Securities under Sections 305, 306, 1002 and 1003 and with
respect to the payment of Additional Amounts, to the extent then unknown, on
such Securities as contemplated by Section 1004, (C) the rights, powers, trusts,
duties and immunities of the Trustee hereunder and (D) this Article XIV. Subject
to compliance with this Article XIV, the Company or the Guarantor may exercise
its option under this Section notwithstanding the prior exercise of its option
under Section 1403 with respect to such Securities and any coupons appertaining
thereto.
SECTION 1403 COVENANT DEFEASANCE. Upon the Company's or the Guarantor's exercise
of the above option applicable to this Section with respect to any Securities of
or within a series, the
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Company and the Guarantor shall be released from their respective obligations
under Sections 1006 and 1007, and, if specified pursuant to Section 301, its
obligations under any other covenant, with respect to such Outstanding
Securities and any coupons appertaining thereto and the Guarantee in respect
thereof on and after the date the conditions set forth in Section 1404 are
satisfied (hereinafter, "covenant defeasance"), and such Securities and any
coupons appertaining thereto shall thereafter be deemed to be not
"Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with Sections 1006 and 1007, or such other covenant, but shall
continue to be deemed "Outstanding" for all other purposes hereunder. For
this purpose, such covenant defeasance means that, with respect to such
Outstanding Securities and any coupons appertaining thereto, the Company and
the Guarantor may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such Section or such
other covenant, whether directly or indirectly, by reason of any reference
elsewhere herein to any such Section or such other covenant or by reason of
reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under Section 501(4) or 501(7) or
otherwise, as the case may be, but, except as specified above, the remainder
of this Indenture and such Securities and any coupons appertaining thereto
and the Guarantee in respect thereof shall be unaffected thereby.
SECTION 1404 CONDITIONS TO DEFEASANCE OR COVENANT DEFEASANCE. The following
shall be the conditions to application of Section 1402 or Section 1403 to any
Outstanding Securities of or within a series and any coupons appertaining
thereto and the Guarantee in respect thereof:
(a) The Company or the Guarantor shall irrevocably have deposited
or caused to be deposited with the Trustee (or another trustee satisfying
the requirements of Section 607 who shall agree to comply with the
provisions of this Article XIV applicable to it) as trust funds in trust
for the purpose of making the following payments, specifically pledged as
security for, and dedicated solely to, the benefit of the Holders of such
Securities and any coupons appertaining thereto, (1) an amount (in such
Currency in which such Securities and any coupons appertaining thereto are
then specified as payable at Stated Maturity), or (2) Government
Obligations applicable to such Securities and coupons appertaining thereto
(determined on the basis of the Currency in which such Securities and
coupons appertaining thereto are then specified as payable at Stated
Maturity) which through the scheduled payment of principal and interest in
respect thereof in accordance with their terms will provide, not later
than one day before the due date of any payment of principal of (and
premium, if any) and interest, if any, on such Securities and any coupons
appertaining thereto, money in an amount, or (3) a combination thereof in
an amount, sufficient, in the opinion of a nationally recognized firm of
independent public accountants expressed in a written certification
thereof delivered to the Trustee, to pay and discharge, and which shall be
applied by the Trustee (or other qualifying trustee) to pay and discharge,
(i) the principal of (and premium, if any) and interest, if any, and any
Additional Amounts then known on such Outstanding Securities and any
coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities
and any coupons
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appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such
Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or
any other material agreement or instrument to which the Company or the
Guarantor is a party or by which it is bound.
(c) No Default or Event of Default with respect to such Securities
and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 501(5) and 501(6) are
concerned, at any time during the period ending on the 91st day after the
date of such deposit (it being understood that this condition shall not be
deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel
stating that (i) the Company or the Guarantor has received from, or there
has been published by, the Internal Revenue Service a ruling, or (ii)
since the date of execution of this Indenture, there has been a change in
the applicable Federal income tax law, in either case to the effect that,
and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result
of such defeasance and will be subject to Federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company or
the Guarantor shall have delivered to the Trustee an Opinion of Counsel to
the effect that the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such covenant defeasance and will be
subject to Federal income tax on the same amounts, in the same manner and
at the same times as would have been the case if such covenant defeasance
had not occurred.
(f) The Company or the Guarantor shall have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel, each stating
that all conditions precedent to the defeasance under Section 1402 or the
covenant defeasance under Section 1403 (as the case may be) have been
complied with and an Opinion of Counsel to the effect that either (i) as a
result of a deposit pursuant to subsection (a) above and the related
exercise of the Company's and the Guarantor's option under Section 1402 or
Section 1403 (as the case may be), registration is not required under the
Investment Company Act of 1940, as amended, by the Company or the
Guarantor, with respect to the trust funds representing such deposit or by
the trustee for such trust funds or (ii) all necessary registrations under
said Act have been effected.
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(g) The Company or the Guarantor shall have delivered to the
Trustee an Officer's Certificate stating that such Outstanding Securities,
if then listed on any securities exchange, will be delisted as a result of
such deposit.
(h) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be
imposed on the Company or the Guarantor in connection therewith pursuant
to Section 301.
SECTION 1405 DEPOSITED MONEY AND GOVERNMENT OBLIGATIONS TO BE HELD IN TRUST;
OTHER MISCELLANEOUS Provisions. Subject to the provisions of the last paragraph
of Section 1003, all money and Government Obligations (or other property as may
be provided pursuant to Section 301) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this
Section 1405, the "Trustee") pursuant to Section 1404 in respect of any
Outstanding Securities of any series and any coupons appertaining thereto shall
be held in trust and applied by the Trustee, in accordance with the provisions
of such Securities and any coupons appertaining thereto and this Indenture, to
the payment, either directly or through any Paying Agent (including the Company
or the Guarantor acting as its own Paying Agent) as the Trustee may determine,
to the Holders of such Securities and any coupons appertaining thereto of all
sums due and to become due thereon in respect of principal (and premium, if any)
and interest and Additional Amounts, if any, but such money need not be
segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any Security pursuant
to Section 301, if, after a deposit referred to in Section 1404(a) has been
made, (a) the Holder of a Security in respect of which such deposit was made
is entitled to, and does, elect pursuant to Section 312(b) or the terms of
such Security to receive payment in a Currency other than that in which the
deposit pursuant to Section 1404(a) has been made in respect of such
Security, or (b) a Conversion Event occurs as contemplated in Section 312(d)
or 312(e) or by the terms of any Security in respect of which the deposit
pursuant to Section 1404(a) has been made, the indebtedness represented by
such Security and any coupons appertaining thereto shall be deemed to have
been, and will be, fully discharged and satisfied through the payment of the
principal of (and premium, if any) and interest and Additional Amounts, if
any, on such Security as the same becomes due out of the proceeds yielded by
converting (from time to time as specified below in the case of any such
election) the amount or other property deposited in respect of such Security
into the Currency in which such Security becomes payable as a result of such
election or Conversion Event based on the applicable Market Exchange Rate for
such Currency in effect on the second Business Day prior to each payment
date, except, with respect to a Conversion Event, for such Currency in effect
(as nearly as feasible) at the time of the Conversion Event.
The Company or the Guarantor, as the case may be, shall pay and
indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section
1404 or the principal and interest received in respect thereof other than any
such tax, fee or other charge which by law is for the account of the Holders
of such Outstanding Securities and any coupons appertaining thereto.
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Anything in this Article to the contrary notwithstanding, the
Trustee shall deliver or pay to the Company from time to time upon the Company
Request, or the Guarantor, as the case may be, upon the Guarantor Request, any
money or Government Obligations (or other property and any proceeds therefrom)
held by it as provided in Section 1404 which, in the opinion of a nationally
recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, are in excess of the amount
thereof which would then be required to be deposited to effect a defeasance or
covenant defeasance, as applicable, in accordance with this Article.
ARTICLE XV
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501 PURPOSES FOR WHICH MEETINGS MAY BE CALLED. If Securities of a
series are issuable as Bearer Securities, a meeting of Holders of Securities of
such series may be called at any time and from time to time pursuant to this
Article to make, give or take any request, demand, authorization, direction,
notice, consent, waiver or other action provided by this Indenture to be made,
given or taken by Holders of Securities of such series.
SECTION 1502 CALL, NOTICE AND PLACE OF MEETINGS. (a) The Trustee may at any time
call a meeting of Holders of Securities of any series for any purpose specified
in Section 1501, to be held at such time and at such place in the Borough of
Manhattan, The City of New York or in London as the Trustee shall determine.
Notice of every meeting of Holders of Securities of any series, setting forth
the time and the place of such meeting and in general terms the action proposed
to be taken at such meeting, shall be given, in the manner provided in Section
106, not less than 21 nor more than 180 days prior to the date fixed for the
meeting.
(b) In case at any time the Company or the Guarantor, pursuant in
either case to an applicable Board Resolution, or the Holders of at least 10% in
principal amount of the Outstanding Securities of any series shall have
requested the Trustee to call a meeting of the Holders of Securities of such
series for any purpose specified in Section 1501, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company,
the Guarantor or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
subsection (a) of this Section.
SECTION 1503 PERSONS ENTITLED TO VOTE AT MEETINGS. To be entitled to vote at any
meeting of Holders of Securities of any series, a Person shall be (1) a Holder
of one or more Outstanding Securities of such series, or (2) a Person appointed
by an instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder or
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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, the
Guarantor and their respective counsel.
SECTION 1504 QUORUM; ACTION. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; PROVIDED, HOWEVER,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a quorum within 30 minutes of the time
appointed for any such meeting, the meeting shall, if convened at the request of
Holders of Securities of such series, be dissolved. In any other case the
meeting may be adjourned for a period of not less than 10 days as determined by
the chairman of the meeting prior to the adjournment of such meeting. In the
absence of a quorum at any such adjourned meeting, such adjourned meeting may be
further adjourned for a period of not less than 10 days as determined by the
chairman of the meeting prior to the adjournment of such adjourned meeting.
Notice of the reconvening of any adjourned meeting shall be given as provided in
Section 1502(a), except that such notice need be given only once not less than
five days prior to the date on which the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly the
percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of a majority in principal amount of the Outstanding Securities of that
series; PROVIDED, HOWEVER, that, except as limited by the proviso to Section
902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of such specified percentage in principal amount
of the Outstanding Securities of that series.
Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
Notwithstanding the foregoing provisions of this Section 1504,
if any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly
91
provides may be made, given or taken by the Holders of a specified percentage
in principal amount of all Outstanding Securities affected thereby, or of the
Holders of such series and one or more additional series:
(i) there shall be no minimum quorum requirement for such meeting;
and
(ii) the principal amount of the Outstanding Securities of such
series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made, given or
taken under this Indenture.
SECTION 1505 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT OF
MEETINGS. (a) Notwithstanding any provisions of this Indenture, the Trustee may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Trustee shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
the Company, the Guarantor or by Holders of Securities as provided in Section
1502(b), in which case the Company, the Guarantor or the Holders of Securities
of the series calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the Persons entitled to vote a majority
in principal amount of the Outstanding Securities of such series represented at
the meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; PROVIDED,
HOWEVER, that no vote shall be cast or counted at any meeting in respect of any
Security challenged as not Outstanding and ruled by the chairman of the meeting
to be not Outstanding. The chairman of the meeting shall have no right to vote,
except as a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons
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entitled to vote a majority in principal amount of the Outstanding Securities
of such series represented at the meeting, and the meeting may be held as so
adjourned without further notice.
SECTION 1506 COUNTING VOTES AND RECORDING ACTION OF MEETINGS. The vote upon any
resolution submitted to any meeting of Holders of Securities of any series shall
be by written ballots on which shall be subscribed the signatures of the Holders
of Securities of such series or of their representatives by proxy and the
principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The permanent chairman of the meeting shall
appoint two inspectors of votes who shall count all votes cast at the meeting
for or against any resolution and who shall make and file with the secretary of
the meeting their verified written reports in duplicate of all votes cast at the
meeting. A record, at least in 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 fact, setting forth a copy of the notice of
the meeting and showing that said notice was given as provided in Section 1502
and, if applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company, to the Guarantor and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE XVI
GUARANTEE OF SECURITIES
SECTION 1601 GUARANTEE. This Section 1601 and Section 1602 apply to the
Securities of any series to the extent that the form of the Guarantee to be
endorsed on such Securities is not otherwise specifically established as
contemplated by Section 301.
The Guarantor hereby unconditionally guarantees to each Holder
of a Security of each series authenticated and delivered by the Trustee the due
and punctual payment of the principal (including any amount due in respect of
original issue discount) of and any premium and interest on and Additional
Amounts with respect to such Security, and the due and punctual payment of any
sinking fund payments provided for pursuant to the terms of such Security, when
and as the same shall become due and payable, whether at the Stated Maturity, by
declaration of acceleration, call for redemption or otherwise, in accordance
with the terms of such Security and of this Indenture. The Guarantor hereby
agrees that its obligations hereunder shall be as if it were a principal debtor
and not merely a surety, and shall be absolute and unconditional, irrespective
of, and shall be unaffected by, any invalidity, irregularity or unenforceability
of any Security of any series or this Indenture, any failure to enforce the
provisions of any Security of any series or this Indenture, any waiver,
modification, consent or indulgence granted to the Company with respect thereto,
by the Holder of any Security of any series or the Trustee, or any other
93
circumstances which may otherwise constitute a legal or equitable discharge of a
surety or guarantor. The Guarantor hereby waives diligence, presentment, demand
of payment, filing of claims with a court in the event of merger or bankruptcy
of the Company, any right to require a proceeding first against the Company, the
benefit of discussion, protest or notice with respect to any Security or the
indebtedness evidenced thereby or with respect of any sinking fund payment
required pursuant to the terms of a Security issued under this Indenture and all
demands whatsoever, and covenants that this Guarantee will not be discharged
with respect to any Security except by payment in full of the principal thereof
and any premium and interest or Additional Amounts thereon or as provided in
Article IV, Section 802 or Article XIV. The Guarantor further agrees that, as
between the Guarantor, on the one hand, and the Holders and the Trustee, on the
other hand, the Maturity of the obligations guaranteed hereby may be accelerated
as provided in Article V hereof for the purposes of this Guarantee,
notwithstanding any stay, injunction or other prohibition preventing such
acceleration in respect of the obligations guaranteed hereby.
This Guarantee shall continue to be effective or be
reinstated, as the case may be, if at any time payment on any Company Security,
in whole or in part, is rescinded or must otherwise be restored to the Company
or the Guarantor upon the bankruptcy, liquidation or reorganization of the
Company or otherwise.
The Guarantor hereby waives, in favor of the Holders and the
Trustee, any and all of its rights, protections, privileges and defenses
provided by any applicable law to a guarantor and waives any right of set-off
which the Guarantor may have against the Holder of a Security in respect of any
amounts which are or may become payable by the Holder of a Security to the
Company.
The Guarantor shall be subrogated to all rights of each Holder
of Securities against the Company in respect of any amounts paid to such Holder
by the Guarantor pursuant to the provisions of this Guarantee; PROVIDED,
HOWEVER, that the Guarantor shall not be entitled to enforce, or to receive any
payments arising out of or based upon, such right of subrogation until the
principal of and any premium and interest on all the Securities of the same
series and of like tenor shall have been paid in full.
The Guarantee shall be governed by and construed in accordance
with the laws of the State of New York. The Guarantor agrees to pay any and all
costs and expenses (including reasonable attorneys' fees and expenses) incurred
by the Trustee or any Holders in enforcing any rights under the Guaranty.
No past, present or future stockholder, officer, director,
employee or incorporator of the Guarantor shall have any personal liability
under the Guarantee set forth in this Section 1601 by reason of his or its
status as such stockholder, officer, director, employee or incorporator.
94
The Guarantee set forth in this Section 1601 shall not be
valid or become obligatory for any purpose with respect to a Security until the
certificate of authentication on such Security shall have been signed by or on
behalf of the Trustee.
SECTION 1602 EXECUTION OF GUARANTEE. To evidence its Guarantee to the Holders
specified in Section 1601, the Guarantor hereby agrees to execute the Guarantee
in substantially the form set forth in Section 204 to be endorsed on each
Security authenticated and delivered by the Trustee. The Guarantor hereby agrees
that its Guarantee set forth in Section 1601 shall remain in full force and
effect notwithstanding any failure to endorse on each Security such Guarantee.
Each such Guarantee shall be signed on behalf of the Guarantor, by its
President, one of its Vice Presidents, its Treasurer or its Secretary prior to
the authentication of the Security on which it is endorsed, and the delivery of
such Security by the Trustee, after the due authentication thereof by the
Trustee hereunder, shall constitute due delivery of the Guarantee on behalf of
the Guarantor. Such signatures upon the Guarantee may be manual or facsimile
signatures of any present, past or future such officers and may be imprinted or
otherwise reproduced below the Guarantee, and in case any such officer who shall
have signed the Guarantee shall cease to hold such offices before the Security
on which such Guarantee is endorsed shall have been authenticated and delivered
by the Trustee or disposed of by the Company, such Security nevertheless may be
authenticated and delivered or disposed of as though the person who signed the
Guarantee had not ceased to hold such office of the Guarantor.
* * * * *
95
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
▇▇▇▇ DEERE B.V.
By:________________________________
Name:
Title:
[SEAL]
Attest:
...................................
DEERE & COMPANY
By:________________________________
Name:
Title:
[SEAL]
Attest:
...................................
THE CHASE MANHATTAN BANK
By:________________________________
Name:
Title:
[SEAL]
Attest:
...................................
▇▇
▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ )
) ss:
COUNTY OF ROCK ISLAND )
On the [__] day of [____], 2000, before me personally came
[__________], to me known, who, being by me duly sworn, did depose and say that
he resides at [________________________]; that he is [____], of ▇▇▇▇ Deere B.V.,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
[Notarial Seal]
_______________________________
Notary Public
COMMISSION EXPIRES
STATE OF ILLINOIS )
) ss:
COUNTY OF ROCK ISLAND )
On the [__] day of [____], 2000, before me personally came
[__________], to me known, who, being by me duly sworn, did depose and say that
he resides at [________________________]; that he is [____], of Deere & Company,
one of the corporations described in and which executed the foregoing
instrument; that he knows the seal of said corporation; that the seal affixed to
said instrument is such corporate seal; that it was so affixed by authority of
the Board of Directors of said corporation; and that he signed his name thereto
by like authority.
[Notarial Seal]
_______________________________
Notary Public
COMMISSION EXPIRES
STATE OF NEW YORK )
) ss:
COUNTY OF NEW YORK )
On the [__] day of [______], 2000, before me personally
came _________________, to me known, who, being by me duly sworn, did depose
and say that he resides at [____________________]; that he is an
__________________ of The Chase Manhattan Bank, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors
of said corporation; and that he signed his name thereto by like authority.
[Notarial Seal]
_______________________________
Notary Public
COMMISSION EXPIRES
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as
set forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its
source ("United States person(s)"), (ii) are owned by United States person(s)
that are (a) foreign branches of United States financial institutions (financial
institutions, as defined in United States Treasury Regulations Section
1.165-12(c)(1)(v) are herein referred to as "financial institutions") purchasing
for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions on
the date hereof (and in either case (a) or (b), each such United States
financial institution hereby agrees, on its own behalf or through its agent,
that you may advise ▇▇▇▇ Deere B.V. or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of the
United States Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) are owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, in
addition, if the owner is a United States or foreign financial institution
described in clause (iii) above (whether or not also described in clause (i) or
(ii)), this is to further certify that such financial institution has not
acquired the Securities for purposes of resale directly or indirectly to a
United States person or to a person within the United States or its possessions.
As used herein, "UNITED STATES" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or
prior to the date on which you intend to submit your certification relating to
the above-captioned Securities held by you for our account in accordance with
your Operating Procedures if any applicable statement herein is not correct on
such date, and in the absence of any such notification it may be assumed that
this certification applies as of such date.
This certificate excepts and does not relate to
[U.S.$]______________ of such interest in the above-captioned Securities in
respect of which we are not able to certify and as to which we understand an
exchange for an interest in a Permanent Global Security or an exchange for and
delivery of definitive Securities (or, if relevant, collection of any
interest) cannot be made until we do so certify.
We understand that this certificate may be required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:______________________,
To be dated no earlier than the 15th day prior to (i) the Exchange Date or (ii)
the relevant Interest Payment Date occurring prior to the Exchange Date, as
applicable]
[Name of Person Making Certification]
(Authorized Signatory)
Name:
Title:
2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written
certifications that we have received in writing, by tested telex or by
electronic transmission from each of the persons appearing in our records as
persons entitled to a portion of the principal amount set forth below (our
"Member Organizations") substantially in the form attached hereto, as of the
date hereof, [U.S.$]____________ principal amount of the above-captioned
Securities (i) is owned by person(s) that are not citizens or residents of
the United States, domestic partnerships, domestic corporations or any estate
or trust the income of which is subject to United States Federal income
taxation regardless of its source ("United States person(s)"), (ii) is owned
by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case
(a) or (b), each such financial institution has agreed, on its own behalf or
through its agent, that we may advise ▇▇▇▇ Deere B.V. or its agent that such
financial institution will comply with the requirements of Section
165(j)(3)(A), (B) or (C) of the Internal Revenue Code of 1986, as amended,
and the regulations thereunder), or (iii) is owned by United States or
foreign financial institution(s) for purposes of resale during the restricted
period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, to the further effect, that financial
institutions described in clause (iii) above (whether or not also described
in clause (i) or (ii)) have certified that they have not acquired the
Securities for purposes of resale directly or indirectly to a United States
person or to a person within the United States or its possessions.
As used herein, "United States" means the United States of
America (including the States and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available
herewith for exchange (or, if relevant, collection of any interest) any portion
of the temporary global Security representing the above-captioned Securities
excepted in the above-referenced certificates of Member
Organizations and (ii) as of the date hereof we have not received any
notification from any of our Member Organizations to the effect that the
statements made by such Member Organizations with respect to any portion of
the part submitted herewith for exchange (or, if relevant, collection of any
interest) are no longer true and cannot be relied upon as of the date hereof.
We understand that this certification is required in
connection with certain tax legislation in the United States. If administrative
or legal proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated:________________________,
[To be dated no earlier than the Exchange Date or the relevant Interest Payment
Date occurring prior to the Exchange Date, as applicable]
[▇▇▇▇▇▇ Guaranty Trust Company of
New York, Brussels Office]
[Clearstream Luxembourg S.A.]
By
2
▇▇▇▇ DEERE B.V.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture, dated as of , 2000
TRUST INDENTURE INDENTURE
ACT SECTION SECTION
Section 310 (a)(1) 607(a)
(a)(2) 607(a)
(b) 607(b), 608
Section 312 (c) 701
Section 314 (a) 703
(a)(4) 1005
(c)(1) 102
(c)(2) 102
(e) 102
Section 315 (b) 601
Section 316 (a) (last sentence) 101 ("Outstanding")
(a)(1)(A) 502, 512
(a)(1)(B) 513
(b) 508
Section 317 (a)(1) 503
(a)(2) 504
Section 318 (a) 111
(c) 111