Exhibit 4.1
DEERE & COMPANY
TO
THE BANK OF NEW YORK MELLON
Trustee
Indenture
Dated
as of September 25, 2008
DEERE & COMPANY
Reconciliation
and tie between Trust Indenture Act of 1939
and Indenture, dated as of September 25, 2008
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Trust Indenture
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Indenture
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Act Section
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Section
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§ 310
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(a)(1)
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608
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(a)(2)
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608
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(b)
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608, 609
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§ 312
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(c)
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701
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§ 314
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(a)
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703
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(a)(4)
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1005
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(c)(1)
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102
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(c)(2)
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102
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(e)
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102
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§ 315
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(b)
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602
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§ 316
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(a) (last
sentence)
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101 (“Outstanding”)
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(a)(1)(A)
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502, 512
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(a)(1)(B)
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513
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(b)
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508
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§ 317
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(a)(1)
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503
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(a)(2)
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504
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§ 318
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(a)
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111
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(c)
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111
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NOTE: This reconciliation and
tie shall not, for any purpose, be deemed to be part of this Indenture.
TABLE OF CONTENTS
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Page
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ARTICLE ONE
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DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
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SECTION 101.
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Definitions
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1
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SECTION 102.
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Compliance
Certificates and Opinions
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10
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SECTION 103.
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Form of
Documents Delivered to Trustee
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10
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SECTION 104.
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Acts of Holders
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11
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SECTION 105.
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Notices, etc.,
to Trustee and Company
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12
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SECTION 106.
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Notice to
Holders; Waiver
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12
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SECTION 107.
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Effect of
Headings and Table of Contents
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13
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SECTION 108.
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Successors and
Assigns
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14
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SECTION 109.
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Separability
Clause
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14
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SECTION 110.
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Benefits of
Indenture
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14
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SECTION 111.
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Governing Law
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14
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SECTION 112.
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Legal Holidays
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14
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ARTICLE TWO
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SECURITIES FORMS
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SECTION 201.
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Forms of
Securities
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14
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SECTION 202.
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Form of
Trustee’s Certificate of Authentication
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15
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SECTION 203.
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Securities
Issuable in Global Form
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15
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ARTICLE THREE
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THE SECURITIES
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SECTION 301.
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Amount
Unlimited; Issuable in Series
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16
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SECTION 302.
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Denominations
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19
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SECTION 303.
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Execution,
Authentication, Delivery and Dating
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20
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SECTION 304.
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Temporary
Securities
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22
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SECTION 305.
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Registration,
Registration of Transfer and Exchange
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24
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SECTION 306.
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Mutilated,
Destroyed, Lost and Stolen Securities
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27
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SECTION 307.
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Payment of
Interest; Interest Rights Preserved; Optional Interest Reset
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28
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SECTION 308.
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Optional
Extension of Maturity
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31
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SECTION 309.
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Persons Deemed
Owners
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32
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SECTION 310.
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Cancellation
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32
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SECTION 311.
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Computation of
Interest
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33
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SECTION 312.
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Currency and
Manner of Payments in Respect of Securities
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33
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SECTION 313.
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Appointment and
Resignation of Successor Exchange Rate Agent
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36
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SECTION 314.
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CUSIP Numbers
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37
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i
ARTICLE FOUR
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SATISFACTION AND DISCHARGE
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SECTION 401.
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Satisfaction and
Discharge of Indenture
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37
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SECTION 402.
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Application of
Trust Funds
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38
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ARTICLE FIVE
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REMEDIES
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SECTION 501.
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Events of
Default
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39
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SECTION 502.
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Acceleration of
Maturity; Rescission and Annulment
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40
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SECTION 503.
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Collection of
Indebtedness and Suits for Enforcement by Trustee
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41
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SECTION 504.
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Trustee
May File Proofs of Claim
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41
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SECTION 505.
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Trustee May Enforce
Claims Without Possession of Securities or Coupons
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42
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SECTION 506.
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Application of
Money Collected
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42
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SECTION 507.
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Limitation on
Suits
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43
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SECTION 508.
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Unconditional
Right of Holders to Receive Principal, Premium and Interest
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43
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SECTION 509.
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Restoration of
Rights and Remedies
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44
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SECTION 510.
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Rights and
Remedies Cumulative
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44
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SECTION 511.
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Delay or
Omission Not Waiver
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44
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SECTION 512.
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Control by
Holders of Securities
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44
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SECTION 513.
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Waiver of Past
Defaults
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44
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SECTION 514.
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Waiver of Stay
or Extension Laws
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45
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ARTICLE SIX
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THE TRUSTEE
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SECTION 601.
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Certain Duties
and Responsibilities
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45
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SECTION 602.
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Notice of
Defaults
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46
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SECTION 603.
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Certain Rights
of Trustee
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46
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SECTION 604.
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Not Responsible
for Recitals or Issuance of Securities
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48
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SECTION 605.
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May Hold
Securities
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48
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SECTION 606.
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Money Held in
Trust
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48
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SECTION 607.
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Compensation and
Reimbursement
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48
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SECTION 608.
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Corporate
Trustee Required; Eligibility
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49
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SECTION 609.
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Resignation and
Removal; Appointment of Successor
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49
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SECTION 610.
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Acceptance of
Appointment by Successor
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51
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SECTION 611.
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Merger,
Conversion, Consolidation or Succession to Business
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52
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SECTION 612.
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Appointment of
Authenticating Agent
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52
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ii
ARTICLE SEVEN
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HOLDERS’ LISTS AND REPORTS BY
TRUSTEE AND COMPANY
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SECTION 701.
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Disclosure of
Names and Addresses of Holders
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54
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SECTION 702.
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Reports by
Trustee
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54
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SECTION 703.
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Reports by
Company
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54
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SECTION 704.
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Calculation of
Original Issue Discount
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55
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ARTICLE EIGHT
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CONSOLIDATION, MERGER,
CONVEYANCE OR TRANSFER
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SECTION 801.
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Company
May Consolidate, etc., Only on Certain Terms
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55
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SECTION 802.
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Successor Person
Substituted
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55
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ARTICLE NINE
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SUPPLEMENTAL INDENTURES
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SECTION 901.
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Supplemental
Indentures Without Consent of Holders
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56
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SECTION 902.
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Supplemental
Indentures with Consent of Holders
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57
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SECTION 903.
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Execution of
Supplemental Indentures
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58
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SECTION 904.
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Effect of
Supplemental Indentures
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59
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SECTION 905.
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Conformity with
Trust Indenture Act
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59
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SECTION 906.
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Reference in
Securities to Supplemental Indentures
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59
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SECTION 907.
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Effect on Senior
Indebtedness
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59
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ARTICLE TEN
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COVENANTS
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SECTION 1001.
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Payment of
Principal, Premium and Interest
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59
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SECTION 1002.
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Maintenance of
Office or Agency
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60
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SECTION 1003.
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Money for
Securities Payments to Be Held in Trust
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61
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SECTION 1004.
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Additional
Amounts
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62
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SECTION 1005.
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Statement as to
Compliance
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63
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SECTION 1006.
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Limitation on
Liens
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63
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SECTION 1007.
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Limitation on
Sale and Lease-back Transactions
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67
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SECTION 1008.
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Waiver of
Certain Covenants
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68
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ARTICLE ELEVEN
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REDEMPTION OF SECURITIES
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SECTION 1101.
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Applicability of
Article
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68
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SECTION 1102.
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Election to
Redeem; Notice to Trustee
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68
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SECTION 1103.
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Selection by
Trustee of Securities to Be Redeemed
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68
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iii
SECTION 1104.
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Notice of
Redemption
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69
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SECTION 1105.
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Deposit of
Redemption Price
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70
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SECTION 1106.
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Securities
Payable on Redemption Date
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70
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SECTION 1107.
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Securities
Redeemed in Part
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71
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ARTICLE TWELVE
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SINKING FUNDS
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SECTION 1201.
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Applicability of
Article
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71
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SECTION 1202.
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Satisfaction of
Sinking Fund Payments with Securities
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72
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SECTION 1203.
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Redemption of
Securities for Sinking Fund
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72
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ARTICLE THIRTEEN
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REPAYMENT AT THE OPTION OF
HOLDERS
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SECTION 1301.
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Applicability of
Article
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72
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SECTION 1302.
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Repayment of
Securities
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72
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SECTION 1303.
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Exercise of
Option
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73
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SECTION 1304.
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When Securities
Presented for Repayment Become Due and Payable
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73
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SECTION 1305.
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Securities
Repaid in Part
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74
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ARTICLE FOURTEEN
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DEFEASANCE AND COVENANT
DEFEASANCE
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SECTION 1401.
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Applicability of
Article; Company’s Option to Effect Defeasance or Covenant Defeasance
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74
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SECTION 1402.
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Defeasance and
Discharge
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74
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SECTION 1403.
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Covenant
Defeasance
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75
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SECTION 1404.
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Conditions to
Defeasance or Covenant Defeasance
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75
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SECTION 1405.
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Deposited Money
and Government Obligations to Be Held in Trust; Other Miscellaneous
Provisions
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77
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ARTICLE FIFTEEN
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MEETINGS OF HOLDERS OF
SECURITIES
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SECTION 1501.
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Purposes for
Which Meetings May Be Called
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78
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SECTION 1502.
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Call, Notice and
Place of Meetings
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78
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SECTION 1503.
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Persons Entitled
to Vote at Meetings
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79
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SECTION 1504.
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Quorum; Action
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79
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SECTION 1505.
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Determination of
Voting Rights; Conduct and Adjournment of Meetings
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80
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SECTION 1506.
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Counting Votes
and Recording Action of Meetings
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81
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SECTION 1507.
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Action Without
Meeting
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81
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iv
ARTICLE SIXTEEN
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SUBORDINATION OF SECURITIES
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SECTION 1601.
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Agreement to
Subordinate
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81
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SECTION 1602.
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Distribution on
Dissolution, Liquidation and Reorganization; Subrogation of Securities
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81
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SECTION 1603.
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No Payment on
Subordinated Securities in Event of Default on Senior Indebtedness
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83
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SECTION 1604.
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Payments on
Subordinated Securities Permitted
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83
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SECTION 1605.
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Authorization of
Holders to Trustee to Effect Subordination
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84
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SECTION 1606.
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Notices to
Trustee
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84
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SECTION 1607.
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Trustee as
Holder of Senior Indebtedness
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84
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SECTION 1608.
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Modifications of
Terms of Senior Indebtedness
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85
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SECTION 1609.
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Reliance on
Judicial Order or Certificate of Liquidating Agent
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85
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EXHIBIT A - FORMS OF CERTIFICATION
v
INDENTURE, dated as of September 25, 2008, between DEERE &
COMPANY, a Delaware corporation (hereinafter called the “Company”), having its
principal office at One John Deere Place, Moline, Illinois 61265 and THE BANK
OF NEW YORK MELLON, a New York banking corporation, as Trustee (hereinafter
called the “Trustee”), having its Corporate Trust Office at 101 Barclay Street,
8W, New York, NY 10286.
RECITALS OF THE COMPANY
The
Company deems it necessary to issue from time to time for its lawful purposes
senior and subordinated debt securities (hereinafter called the “Securities”)
evidencing its unsecured senior and subordinated indebtedness, as the case may
be, which may or may not be convertible into or exchangeable for any securities
of any Person (including the Company), and has duly authorized the execution
and delivery of this Indenture to provide for the issuance from time to time of
the Securities, unlimited as to principal amount, to bear such rates of
interest, to mature at such times and to have such other provisions as shall be
fixed as hereinafter provided.
This
Indenture is subject to the provisions of the Trust Indenture Act of 1939, as
amended (the “Trust Indenture Act” or “TIA”), that are required to be part of
this Indenture and shall, to the extent applicable, be governed by such
provisions.
All
things necessary to make this Indenture a valid agreement of the Company, in
accordance with its terms, have been done.
NOW,
THEREFORE, THIS INDENTURE WITNESSETH:
For
and in consideration of the premises and the purchase of the Securities by the
Holders thereof, it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities and coupons, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 101. Definitions. For all purposes of this
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
(1) the
terms defined in this Article have the meanings assigned to them in this
Article, and include the plural as well as the singular;
(2) all
other terms used herein which are defined in the Trust Indenture Act, either
directly or by reference therein, have the meanings assigned to them therein,
and the terms “cash transaction” and “self-liquidating paper”, as used in TIA Section 311,
shall have the meanings assigned to them in the rules of the Commission adopted
under the Trust Indenture Act;
(3) all accounting terms not otherwise
defined herein have the meanings assigned to them in accordance with U.S. generally
accepted accounting principles;
(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; and
(5) references
to Sections and Articles are references to sections and articles in this
Indenture.
Certain
terms, used principally in Article Three, Article Five, Article Ten,
Article Twelve and Article Fourteen, are defined in those Articles.
“Act”,
when used with respect to any Holder, has the meaning specified in Section 104.
“Additional
Amounts” means any additional amounts which are required by a Security or
by or pursuant to a Board Resolution, under circumstances specified therein, to
be paid by the Company in respect of certain taxes imposed on certain Holders
and which are owing to such Holders.
“Affiliate”
of any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with
such specified Person. For the purposes
of this definition, “control” when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms “controlling” and “controlled” have meanings
correlative to the foregoing.
“Authenticating
Agent” means any authenticating agent appointed by the Trustee pursuant to Section 612.
“Authorized
Newspaper” means a newspaper, in the English language or in an official
language of the country of publication, customarily published on each Business
Day, whether or not published on Saturdays, Sundays or holidays, and of general
circulation in each place in connection with which the term is used or in the
financial community of each such place.
Where successive publications are required to be made in Authorized
Newspapers, the successive publications may be made in the same or in different
newspapers in the same city meeting the foregoing requirements and in each case
on any Business Day.
“Bearer
Security” means any Security established pursuant to Section 201 which
is payable to bearer.
“Board
of Directors” means the board of directors of the Company, the executive
committee or any committee of that board duly authorized to act hereunder.
“Board
Resolution” means a copy of a resolution certified by the Secretary or an
Assistant Secretary of the Company to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
and delivered to the Trustee.
“Business
Day”, when used with respect to any Place of Payment or any other
particular location referred to in this Indenture or in the Securities, means,
unless otherwise
2
specified with respect to any Securities pursuant to Section 301,
each Monday, Tuesday, Wednesday, Thursday and Friday which (i) 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 and (ii) if a
payment is to be made in (or a rate is to be ascertained for) Euros, is also a
day in which TARGET is open for settlement of payment in Euros.
“Clearstream”
means Clearstream Banking, société anonyme, 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 Person shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Company” shall mean
such successor entity.
“Company
Request” and “Company Order” mean, respectively, a written request
or order signed in the name of the Company by the Chairman, the President or a
Vice President, and by the Treasurer, an Assistant Treasurer, the Comptroller
or an Assistant Comptroller, the Secretary or an Assistant Secretary, of the
Company, and delivered to the Trustee.
“Conversion
Date” has the meaning specified in Section 312(d).
“Conversion
Event” means the cessation of use of a Foreign Currency both by the
government of one or more countries or by any recognized union, association or
confederation of governments that issued such Foreign Currency and by a central
bank or other public institution of or within the international banking
community for the settlement of transactions in such Foreign Currency.
“Corporate
Trust Office” means the office of the Trustee at which, at any particular
time, its corporate trust business shall be principally administered, which
office at the date hereof is located at 101 Barclay Street, 8W, New York, NY
10286. Attention: Corporate Trust Division - Corporate Finance
Unit, or such other address as the Trustee may designate from time to time by
notice to the Company, or the principal corporate trust office of any successor
Trustee (or such other address as such successor Trustee may designate from
time to time by notice to the Company).
“corporation”
includes corporations, limited liability companies, associations, companies and
business or statutory 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 recognized union, association or confederation
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.
3
“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).
“Euros”
and “€” means the single currency of participating member states of the
European Union.
“Euroclear”
means Euroclear Bank S.A./N.V., as operator of Euroclear System, and any successor
thereto.
“European
Union” means the union of sovereign states party to the Treaty on European
Union, which was signed in Maastricht, the Netherlands on February 7,
1992, and predecessor and successor treaties, as may be modified from time to
time.
“Event
of Default” has the meaning specified in Article Five.
“Exchange
Rate Agent”, with respect to Securities of or within any series, means,
unless otherwise specified with respect to any Securities pursuant to Section 301,
a New York Clearing House bank designated pursuant to Section 301 or Section 313.
“Exchange
Rate Officer’s Certificate” means a certificate setting forth (i) the
applicable Market Exchange Rate or the applicable bid quotation and (ii) the
Dollar or Foreign Currency amounts of principal (and premium, if any) and
interest, if any (on an aggregate basis and on the basis of a Security having
the lowest denomination principal amount determined in accordance with Section 302
in the relevant currency or currency unit), payable with respect to a Security
of any series on the basis of such Market Exchange Rate or the applicable bid
quotation signed by the Treasurer, any Vice President or any Assistant
Treasurer of the Company.
“Foreign
Currency” means any Currency, including, without limitation, the 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
4
the specific payment of interest on or principal of
the Government Obligation evidenced by such depository receipt.
“Holder”
means, in the case of a Registered Security, the Person in whose name a
Security is registered in the Security Register and, in the case of a Bearer
Security, the bearer thereof and, when used with respect to any coupon, shall
mean the bearer thereof.
“Indenture”
means this instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof, and shall include the terms
of particular series of Securities established as contemplated by Section 301;
provided, however, that, if at any time more than one Person is
acting as Trustee under this instrument, “Indenture” shall mean, with respect
to any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be
supplemented or amended by one or more indentures supplemental hereto entered
into pursuant to the applicable provisions hereof and shall include the terms
of the or those particular series of Securities for which such Person is
Trustee established as contemplated by Section 301, exclusive, however, of
any provisions or terms which relate solely to other series of Securities for
which such Person is not Trustee, regardless of when such terms or provisions
were adopted, and exclusive of any provisions or terms adopted by means of one or
more indentures supplemental hereto executed and delivered after such Person
had become such Trustee but to which such Person, as such Trustee, was not a
party.
“Indexed
Security” means a Security as to which all or certain interest payments
and/or the principal amount payable at Maturity are determined by reference to
prices, changes in prices, or differences between prices, of securities,
Currencies, intangibles, goods, articles or commodities or by such other
objective price, economic or other measures as are specified in Section 301
hereof.
“interest”,
when used with respect to an Original Issue Discount Security which by its
terms bears interest only after Maturity, shall mean interest payable after
Maturity, and, when used with respect to a Security which provides for the
payment of Additional Amounts pursuant to Section 1004, includes such
Additional Amounts.
“Interest
Payment Date”, when used with respect to any Security, means the Stated
Maturity of an installment of interest on such Security.
“Market
Exchange Rate” means, unless otherwise specified with respect to any
Securities pursuant to Section 301, (i) for any conversion involving
a currency unit on the one hand and Dollars or any Foreign Currency on the
other, the exchange rate between the relevant currency unit and Dollars or such
Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (ii) for any conversion of
Dollars into any Foreign Currency, the noon buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (iii) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency,
the spot rate at noon local time in the relevant market at which, in accordance
with normal banking procedures, the Dollars or Foreign Currency into which
conversion is being made could be
5
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 Chairman, the President or
any Vice President and by the Treasurer, an Assistant Treasurer, the
Comptroller or an Assistant Comptroller, the Secretary or an Assistant
Secretary of the Company, that complies with the requirements of Section 314(e)
of the Trust Indenture Act, and delivered to the Trustee.
“Opinion
of Counsel” means a written opinion of counsel, who may be counsel for the
Company or who may be an employee of or other counsel for the Company, and who
shall be acceptable to the Trustee.
“Original
Issue Discount Security” means any Security which provides for an amount
less than the principal amount thereof to be due and payable upon a declaration
of acceleration of the Maturity thereof pursuant to Section 502.
“Outstanding”,
when used with respect to Securities, means, as of the date of determination,
all Securities theretofore authenticated and delivered under this Indenture,
except:
(i) Securities
theretofore cancelled by the Trustee or delivered to the Trustee for
cancellation;
(ii) Securities, or
portions thereof, for whose payment or redemption or repayment at the option of
the Holder money in the necessary amount has been theretofore deposited with
the Trustee or any Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities and any coupons appertaining
thereto, provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or provision
therefor satisfactory to the Trustee has been made;
6
(iii) Securities, except
to the extent provided in Sections 1402 and 1403, with respect to which
the Company has effected defeasance and/or covenant defeasance as provided in Article Fourteen;
(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; and
(v) Securities that have
been converted or exchanged pursuant to Section 301.
provided, however, that in
determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization,
direction, notice, consent or waiver hereunder or are present at a meeting of
Holders for quorum purposes, and for the purpose of making the calculations
required by TIA Section 313, (i) the principal amount of an Original
Issue Discount Security that may be counted in making such determination or
calculation and that shall be deemed to be Outstanding for such purpose shall
be equal to the amount of principal thereof that would be (or shall have been
declared to be) due and payable, at the time of such determination, upon a
declaration of acceleration of the Maturity thereof pursuant to Section 502,
(ii) the principal amount of any Security denominated in a Foreign
Currency that may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal to the Dollar
equivalent, determined as of the date such Security is originally issued by the
Company as set forth in an Exchange Rate Officer’s Certificate delivered to the
Trustee, of the principal amount (or, in the case of an Original Issue Discount
Security or Indexed Security, the Dollar equivalent as of such date of original
issuance of the amount determined as provided in clause (i) above or (iii) below,
respectively) of such Security, (iii) the principal amount of any Indexed
Security that may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal to the
principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Security pursuant to Section 301,
and (iv) Securities owned by the Company or any other obligor upon the
Securities or any Affiliate of the Company or of such other obligor shall be
disregarded and deemed not to be Outstanding (except that in the case where the
Securities are 100% owned by the Company or any Affiliate of the Company),
except that, in determining whether the Trustee shall be protected in making
such calculation or in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned which have been pledged
in good faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act with respect to such
Securities and that the pledgee is not the Company or any other obligor upon
the Securities or any Affiliate of the Company or of such other obligor.
“Paying
Agent” means any Person authorized by the Company to pay the principal of
(or premium, if any) or interest, if any, on any Securities or coupons on
behalf of the Company.
“Person”
means any individual, corporation, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
7
“Place
of Payment”, when used with respect to the Securities of or within any
series, means the place or places where the principal of (and premium, if any)
and interest, if any, on such Securities are payable as specified and as
contemplated by Sections 301 and 1002.
“Predecessor
Security” of any particular Security means every previous Security
evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu
of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
“Redemption
Date”, when used with respect to any Security to be redeemed, in whole or
in part, means the date fixed for such redemption by or pursuant to this
Indenture.
“Redemption
Price”, when used with respect to any Security to be redeemed, means the
price at which it is to be redeemed pursuant to this Indenture.
“Registered
Security” shall mean any Security which is registered in the Security
Register.
“Regular
Record Date” for the interest payable on any Interest Payment Date on the
Registered Securities of or within any series means the date specified for that
purpose as contemplated by Section 301, whether or not a Business Day.
“Repayment
Date” means, when used with respect to any Security to be repaid at the
option of the Holder, the date fixed for such repayment by or pursuant to this
Indenture.
“Repayment
Price” means, when used with respect to any Security to be repaid at the option
of the Holder, the price at which it is to be repaid by or pursuant to this
Indenture.
“Responsible
Officer”, when used with respect to the Trustee, means any officer of the
Trustee assigned to the Corporate Trust Division - Corporate Finance Unit (or
any successor division or unit) of the Trustee located at the Corporate Trust
Office of the Trustee, who shall have direct responsibility for the
administration of this Indenture, and for the purposes of Section 601(c)(2) and
Section 602 shall also include any other officer of the Trustee to whom
any corporate trust matter is referred because of such officer’s knowledge of
and familiarity with the particular subject.
“Security”
or “Securities” has the meaning stated in the first recital of this
Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, however,
that, if at any time there is more than one Person acting as Trustee under this
Indenture, “Securities” with respect to the Indenture as to which such Person
is Trustee shall have the meaning stated in the first recital of this Indenture
and shall more particularly mean Securities authenticated and delivered under
this Indenture, exclusive, however, of Securities of any series as to which
such Person is not Trustee.
8
“Security
Register” and “Security Registrar” have the respective meanings
specified in Section 305.
“Senior
Indebtedness” means, unless otherwise specified with respect to any
securities pursuant to Section 301, the principal of (and premium, if any) and
unpaid interest on (a) indebtedness of the Company (including indebtedness
of others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed (other
than the indebtedness evidenced by the Securities outstanding on the date
hereof or thereafter created), unless in the instrument creating or evidencing
the same or pursuant to which the same is outstanding it is provided that such
indebtedness is not senior or prior in right of payment to the Securities, and (b) renewals,
extensions, modifications and refundings of any such indebtedness.
“Special
Record Date” for the payment of any Defaulted Interest on the Registered
Securities of or within any series means a date fixed by the Trustee pursuant
to Section 307.
“Stated
Maturity”, when used with respect to any Security or any installment of
principal thereof or interest thereon, means the date specified in such
Security or a coupon representing such installment of interest as the fixed
date on which the principal of such Security or such installment of principal
or interest is due and payable, as such date may be extended pursuant to the provisions
of Section 308.
“Subsidiary”
means any corporation a majority of the outstanding voting stock of which is
owned, directly or indirectly, by the Company or by one or more other
Subsidiaries of the Company. For the
purposes of this definition, “voting stock” means stock having voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
“TARGET”
means the Trans-European Automated Real-Time Gross Settlement Express Transfer
System.
“Trustee”
means the Person named as the “Trustee” in the first paragraph of this
Indenture until a successor Trustee shall have become such pursuant to the
applicable provisions of this Indenture, and thereafter “Trustee” shall mean or
include each Person who is then a Trustee hereunder; provided, however,
that if at any time there is more than one such Person, “Trustee” as used with
respect to the Securities of any series shall mean only the Trustee with
respect to Securities of that series.
“United
States” means, unless otherwise specified with respect to any Securities
pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
“United
States person” means, unless otherwise specified with respect to any
Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other business entity
created or organized in or under the laws of the United States or any State or
the District of Columbia, an estate the income of which is subject to United
States federal income taxation regardless of its source or any trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust.
“Valuation
Date” has the meaning specified in Section 312(c).
9
“Yield
to Maturity” means the yield to maturity, computed at the time of issuance
of a Security (or, if applicable, at the most recent redetermination of
interest on such Security) and as set forth in such Security in accordance with
generally accepted United States bond yield computation principles.
SECTION 102. Compliance
Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision of
this Indenture, the Company shall furnish to the Trustee an Officers’
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an
Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 1005) shall
include:
(1) a
statement that each individual signing such certificate or opinion has read
such condition or covenant and the definitions herein relating thereto;
(2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statements or opinions contained in such certificate or opinion
are based;
(3) a
statement that, in the opinion of each such individual, he has made such
examination or investigation as is necessary to enable him to express an informed
opinion as to whether or not such condition or covenant has been complied with;
and
(4) a
statement as to whether, in the opinion of each such individual, such condition
or covenant has been complied with.
SECTION 103. Form of
Documents Delivered to Trustee. In any case where several
matters are required to be certified by, or covered by an opinion of, any
specified Person, it is not necessary that all such matters be certified by, or
covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion as to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any
certificate or opinion of an officer of the Company may be based, insofar as it
relates to legal matters, upon an Opinion of Counsel, or a certificate or
representations by counsel, unless such officer knows, or in the exercise of
reasonable care should know, that the opinion, certificate or representations
with respect to the matters upon which his certificate or opinion is based are
erroneous. Any such Opinion of Counsel
or certificate or representations may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information as to such
factual matters is in the possession of the Company, unless such counsel knows,
or in the
10
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. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders of Securities of such series
may, alternatively, be embodied in and evidenced by the record of Holders of
Securities of such series voting in favor thereof, either in person or by
proxies duly appointed in writing, at any meeting of Holders of Securities of
such series duly called and held in accordance with the provisions of Article Fifteen,
or a combination of such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or
instruments or record or both are delivered to the Trustee and, where it is
hereby expressly required, to the Company.
Such instrument or instruments and any such record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
“Act” of the Holders signing such instrument or instruments or so voting at any
such meeting. Proof of execution of any
such instrument or of a writing appointing any such agent, or of the holding by
any Person of a Security, shall be sufficient for any purpose of this Indenture
and (subject to Section 315 of Trust Indenture Act) conclusive in favor of the
Trustee and the Company and any agent of the Trustee or the Company, if made in
the manner provided in this Section. The
record of any meeting of Holders of Securities shall be proved in the manner
provided in Section 1506.
(b) The fact and date of the execution of
any such instrument or writing, or the authority of the Person executing the
same, may be proved in any manner that the Trustee deems reasonably sufficient.
(c) The ownership of Registered
Securities shall be proved by the Security Register.
(d) The ownership of Bearer Securities
may be proved by the production of such Bearer Securities or by a certificate
executed, as depositary, by any trust company, bank, banker or other depositary
reasonably acceptable to the Company, wherever situated, if such certificate
shall be deemed by the Trustee to be satisfactory, showing that at the date
therein mentioned such Person had on deposit with such depositary, or exhibited
to it, the Bearer Securities therein described; or such facts may be proved by
the certificate or affidavit of the Person holding such Bearer Securities, if
such certificate or affidavit is deemed by the Trustee to be satisfactory. The Trustee and the Company may assume that
such ownership of any Bearer Security continues until (1) another
certificate or affidavit bearing a later date issued in respect of the same
Bearer Security is produced, or (2) such Bearer Security is produced to
the Trustee by some other Person, or (3) such Bearer Security is
surrendered in exchange for a Registered Security, or (4) such Bearer
Security is no
11
longer Outstanding. The ownership of Bearer Securities may also be
proved in any other manner that the Trustee deems sufficient.
(e) If the Company shall solicit from the
Holders of Registered Securities any request, demand, authorization, direction,
notice, consent, waiver or other Act, the Company may, at its option, in or
pursuant to a Board Resolution, fix in advance a record date for the
determination of Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company shall have no
obligation to do so. Notwithstanding TIA
Section 316(c), such record date shall be the record date specified in or
pursuant to such Board Resolution, which shall be a date not earlier than the
date 30 days prior to the first solicitation of Holders generally in
connection therewith and not later than the date such solicitation is
completed. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the
Holders of record at the close of business on such record date shall be deemed
to be Holders for the purposes of determining whether Holders of the requisite
proportion of Outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or
other Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than eleven months after the record date.
(f) Any request, demand, authorization,
direction, notice, consent, waiver or other Act of the Holder of any Security
shall bind every future Holder of the same Security and the Holder of every
Security issued upon the registration of transfer thereof or in exchange
therefor or in lieu thereof in respect of anything done, omitted or suffered to
be done by the Trustee, any Security Registrar, any Paying Agent, any
Authenticating Agent or the Company in reliance thereon, whether or not
notation of such action is made upon such Security.
SECTION 105. Notices,
etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the
Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder
if made, given, furnished or filed in writing to or with the Trustee at its
Corporate Trust Office, Attention:
Corporate Trust Division – Corporate Finance Unit, or
(2) the
Company by the Trustee or by any Holder shall be sufficient for every purpose
hereunder (unless otherwise herein expressly provided) if in writing and
mailed, first-class postage prepaid, to the Company addressed to it at the
address of its principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to the
Trustee by the Company.
SECTION 106. Notice to
Holders; Waiver. Where this Indenture
provides for notice of any event to Holders of Registered Securities by the
Company or the Trustee, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each such Holder affected by such event, at his
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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 written or electronic notification to Holders of Registered
Securities as shall be made with the approval of the Trustee shall constitute a
sufficient notification to such Holders for every purpose hereunder.
Except
as otherwise expressly provided herein or otherwise specified with respect to
any Securities pursuant to Section 301, where this Indenture provides for
notice to Holders of Bearer Securities of any event, such notice shall be
sufficiently given if published in an Authorized Newspaper in The City of New
York and in such other city or cities as may be specified in such Securities on
a Business Day, such publication to be not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. Any such notice shall be deemed to have been
given on the date of such publication or, if published more than once, on the
date of the first such publication.
If by
reason of the suspension of publication of any Authorized Newspaper or
Authorized Newspapers or by reason of any other cause it shall be impracticable
to publish any notice to Holders of Bearer Securities as provided above, then
such notification to Holders of Bearer Securities as shall be given with the
approval of the Trustee shall constitute sufficient written notice to such
Holders for every purpose hereunder.
Neither the failure to give notice by publication to Holders of Bearer
Securities as provided above, nor any defect in any notice so published, shall
affect the sufficiency of such notice with respect to other Holders of Bearer
Securities or the sufficiency of any notice to Holders of Registered Securities
given as provided herein.
Any
request, demand, authorization, direction, notice, consent or waiver required
or permitted under this Indenture shall be in the English language, except that
any published notice may be in an official language of the country of
publication.
Where
this Indenture provides for notice in any manner, such notice may be waived in
writing by the Person entitled to receive such notice, either before or after
the event, and such waiver shall be the equivalent of such notice. Waivers of notice by Holders shall be filed
with the Trustee, but such filing shall not be a condition precedent to the
validity of any action taken in reliance upon such waiver.
SECTION 107. Effect of
Headings and Table of Contents. The Article and Section headings
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
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SECTION 108. Successors
and Assigns. All covenants and
agreements in this Indenture by the Company shall bind its successors and
assigns, whether so expressed or not.
SECTION 109. Separability
Clause. In case any provision in
this Indenture or in any Security or coupon shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
SECTION 110. Benefits of
Indenture. Nothing in this Indenture
or in the Securities or coupons, express or implied, shall give to any Person,
other than the parties hereto, any Security Registrar, any Paying Agent, any
Authenticating Agent and their successors hereunder and the Holders any benefit
or any legal or equitable right, remedy or claim under this Indenture.
SECTION 111. Governing
Law. This Indenture and the
Securities and coupons shall be governed by and construed in accordance with
the laws of the State of New York, without regard to conflicts of laws
principles of such state other than New York General Obligations Law Section 5-1401. This Indenture is subject to the provisions
of the Trust Indenture Act that are required or deemed to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions.
SECTION 112. Legal
Holidays. Unless otherwise specified
in or pursuant to this Indenture or any Security, 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 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, to such next business day.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of
Securities. The Registered Securities,
if any, of each series and the Bearer Securities, if any, of each series and
related coupons shall be in substantially the forms as shall be established in
one or more indentures supplemental hereto or approved from time to time by or
pursuant to a Board Resolution in accordance with Section 301, shall have
such appropriate insertions, omissions, substitutions and other variations as
are required or permitted by this Indenture or any indenture supplemental
hereto, and may have such letters, numbers or other marks of identification or
designation and such legends or endorsements placed thereon as the Company may
deem appropriate and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any
14
rule or regulation made pursuant thereto
or with any rule or regulation of any stock exchange on which the
Securities may be listed, or to conform to usage.
Unless
otherwise specified as contemplated by Section 301, Bearer Securities
shall have interest coupons attached.
The
definitive Securities and coupons shall be printed, lithographed or engraved or
produced by any combination of these methods on a steel engraved border or
steel engraved borders or may be produced in any other manner, all as
determined by the officers executing such Securities or coupons, as evidenced
by their execution of such Securities or coupons.
SECTION 202. Form of
Trustee’s Certificate of Authentication.
Subject to Section 612, 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.
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THE
BANK OF NEW YORK MELLON,
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as
Trustee
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By
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Authorized
Signatory
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SECTION 203. Securities
Issuable in Global Form. If Securities of or within
a series are issuable in global form, as specified as contemplated by Section 301,
then, notwithstanding clause (8) of Section 301 and the
provisions of Section 302, any such Security shall represent such of the
Outstanding Securities of such series as shall be specified therein and may
provide that it shall represent the aggregate amount of Outstanding Securities
of such series from time to time endorsed thereon and that the aggregate amount
of Outstanding Securities of such series represented thereby may from time to
time be increased or decreased to reflect exchanges. Any endorsement of a Security in global form
to reflect the amount, or any increase or decrease in the amount, of
Outstanding Securities represented thereby shall be made by the Trustee in such
manner and upon instructions given by such Person or Persons as shall be
specified therein or in the Company Order to be delivered to the Trustee
pursuant to Section 303 or 304.
Subject to the provisions of Section 303 and, if applicable, Section 304,
the Trustee shall deliver and redeliver any Security in permanent global form
in the manner and upon instructions given by the Person or Persons specified
therein or in the applicable Company Order.
If a Company Order pursuant to Section 303 or 304 has been, or simultaneously
is, delivered, any instructions by the Company with respect to endorsement,
delivery or redelivery of a Security in global form shall be in writing but
need not comply with Section 102 and need not be accompanied by an Opinion
of Counsel.
The
provisions of the last sentence of Section 303 shall apply to any Security
represented by a Security in global form if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Security in
global form together with written instructions (which need not comply with Section 102
and need not be accompanied by
15
an Opinion of Counsel) with regard to the reduction in
the principal amount of Securities represented thereby, together with the
written statement contemplated by the last sentence of Section 303.
Notwithstanding
the provisions of Section 307, unless otherwise specified as contemplated
by Section 301, payment of principal of (and premium, if any) and
interest, if any, on any Security in permanent global form shall be made to the
Person or Persons specified therein.
Notwithstanding
the provisions of Section 309 and except as provided in the preceding
paragraph, the Company, the Trustee and any agent of the Company and the
Trustee shall treat as the Holder of such principal amount of Outstanding
Securities represented by a permanent global Security (i) in the case of a
global Registered Security, the Holder thereof, or (ii) in the case of a
global Bearer Security, Euroclear or Clearstream.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount
Unlimited; Issuable in Series. The aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture is unlimited. The Securities
may be subordinated in right of payment to Senior Indebtedness as provided in Article Sixteen.
The
Securities may be issued in one or more series and shall rank equally and pari
passu with other Securities of such 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 and set forth in such Securities of the series when issued from time to
time):
(1) the
form and title of the Securities of the series (which shall distinguish
the Securities of such series from all other series of Securities) and whether
such Securities are senior or subordinated;
(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;
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(4) the
rate or rates at which the Securities of the series shall bear interest, if
any, or the method by which such rate or rates shall be determined, the date or
dates from which such interest shall accrue or the method by which such date or
dates shall be determined, the Interest Payment Dates on which such interest
will be payable and the Regular Record Date, if any, for the interest payable
on any Registered Security on any Interest Payment Date, or the method by which
such date shall be determined, and the basis upon which such interest shall be
calculated if other than that of a 360-day year of twelve 30-day months;
(5) the
place or places, if any, other than or in addition to the Borough of Manhattan,
The City of New York, where the principal of (and premium, if any) and
interest, if any, on Securities of the series shall be payable, any Registered
Securities of the series may be surrendered for registration of transfer,
Securities of the series may be surrendered for exchange, where Securities of
that series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable, and where notices or demands to or upon
the Company in respect of the Securities of the series and this Indenture may
be served;
(6) the
period or periods within which, the price or prices at which, the Currency or
Currencies in which, and other terms and conditions upon which Securities, of
the series may be redeemed, in whole or in part, at the option of the Company,
if the Company is to have the option;
(7) the
obligation, if any, of the Company to redeem, repay or purchase Securities of
the series pursuant to any sinking fund or analogous provision or at the option
of a Holder thereof, and the period or periods within which or the date or
dates on which, the price or prices at which, the Currency or Currencies in
which, and other terms and conditions upon which, Securities of the series
shall be redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(8) if
other than denominations of $1,000 and any integral multiple thereof, the
denomination or denominations in which any Registered Securities of the series
shall be issuable and, if other than denominations of $5,000, the denomination
or denominations in which any Bearer Securities of the series shall be
issuable;
(9) if
other than the Trustee, the identity of each Security Registrar and/or Paying
Agent;
(10) if
other than the principal amount thereof, the portion of the principal amount of
Securities of the series that shall be payable upon declaration of acceleration
of the Maturity thereof pursuant to Section 502 or the method by which
such portion shall be determined;
(11) if
other than Dollars, the Currency or Currencies in which payment of the
principal of (or premium, if any) or interest, if any, on the Securities of the
series shall be made or in which the Securities of the series shall be
denominated and the particular provisions applicable thereto in accordance
with, in addition to or in lieu of any of the provisions of Section 312;
17
(12) whether
the amount of payments of principal of (or premium, if any) or interest, if
any, on the Securities of the series may be determined with reference to an
index, formula or other method (which index, formula or method may be based,
without limitation, on one or more Currencies, commodities, equity indices or
other indices), and the manner in which such amounts shall be determined;
(13) whether
the principal of (or premium, if any) or interest, if any, on the Securities of
the series are to be payable, at the election of the Company or a Holder thereof,
in one or more Currencies, other than that in which such Securities are
denominated or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon which, such
election may be made, and the time and manner of determining the exchange rate
between the Currency or Currencies in which such Securities are denominated or
stated to be payable and the Currency or Currencies in which such Securities
are to be paid, in each case in accordance with, in addition to or in lieu of
any of the provisions of Section 312;
(14) provisions,
if any, granting special rights to the Holders of Securities of the series upon
the occurrence of such events as may be specified;
(15) any
deletions from, modifications of or additions to the Events of Default or
covenants (including any deletions from, modifications of or additions to any
of the provisions of Section 1008) of the Company with respect to
Securities of the series, whether or not such Events of Default or covenants
are consistent with the Events of Default or covenants set forth herein;
(16) whether
Securities of the series are to be issuable as Registered Securities, Bearer
Securities (with or without coupons) or both, any restrictions applicable to
the offer, sale or delivery of Bearer Securities and the terms upon which
Bearer Securities of the series may be exchanged for Registered Securities of
the series and vice versa (if permitted by applicable laws and regulations),
whether any Securities of the series are to be issuable initially in temporary
global form and whether any Securities of the series are to be issuable in
permanent global form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Security may exchange such
interests for Securities of such series in certificated form and of like tenor
of any authorized form and denomination and the circumstances under which any
such exchanges may occur, if other than in the manner provided in Section 305,
and, if Registered Securities of the series are to be issuable as a global
Security, the identity of the depository for such series;
(17) the
date as of which any Bearer Securities of the series and any temporary global
Security representing Outstanding Bearer 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
18
of the coupons appertaining thereto as they severally mature, and the
extent to which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other than in the
manner provided in Section 304;
(19) the
applicability, if any, of Sections 1402 and/or 1403 to the Securities of
the series and any provisions in modification of, in addition to or in lieu of
any of the provisions of Article Fourteen;
(20) if
the Securities of such series are to be issuable in definitive
form (whether upon original issue or upon exchange of a temporary Security
of such series) only upon receipt of certain certificates or other documents or
satisfaction of other conditions, then the form and/or terms of such
certificates, documents or conditions;
(21) whether,
under what circumstances and the Currency in which, the Company will pay
Additional Amounts as contemplated by Section 1004 on the Securities of
the series to any Holder who is not a United States person (including any
modification to the definition of such term) in respect of any tax, assessment
or governmental charge and, if so, whether the Company will have the option to
redeem such Securities rather than pay such Additional Amounts (and the terms
of any such option);
(22) the
designation of the initial Exchange Rate Agent, if any;
(23) if
the Securities of the series are to be convertible into or exchangeable for any
securities of any Person (including the Company), the terms and conditions upon
which such Securities will be so convertible or exchangeable; and
(24) any
other terms of the series (which terms shall not be inconsistent with the
provisions of this Indenture or the requirements of the Trust Indenture Act);
All
Securities of any one series and the coupons appertaining to any Bearer
Securities of such series shall be substantially identical except, in the case
of Registered Securities, as to denomination and except as may otherwise be
provided in or pursuant to such Board Resolution (subject to Section 303)
and set forth in such Officers’ Certificate or in any such indenture
supplemental hereto. All Securities of
any one series need not be issued at the same time and, unless otherwise
provided, a series may be reopened, without the consent of the Holders, for
issuances of additional Securities of such series.
If any
of the terms of the Securities of any series are established by action taken
pursuant to one or more Board Resolutions, a copy of an appropriate record of
such action(s) shall be certified by the Secretary or an Assistant
Secretary of the Company and 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
19
issuable in denominations of $1,000 and any
integral multiple thereof, and the Bearer Securities of such series, other than
Bearer Securities issued in global form (which may be of any
denomination), shall be issuable in a denomination of $5,000.
SECTION 303. Execution,
Authentication, Delivery and Dating. The Securities and any
coupons appertaining thereto shall be executed on behalf of the Company by its
Chairman, its President or one of its Vice Presidents, under its corporate seal
reproduced thereon, and attested by its Secretary or one of its Assistant
Secretaries. The signature of any of
these officers on the Securities and coupons may be manual or facsimile
signatures of the present or any future such authorized officer and may be
imprinted or otherwise reproduced on the Securities.
Securities
or coupons bearing the manual or facsimile signatures of individuals who were
at any time the proper officers of the Company shall bind the Company, notwithstanding
that such individuals or any of them have ceased to hold such offices prior to
the authentication and delivery of such Securities or did not hold such offices
at the date of such Securities or coupons.
At any
time and from time to time after the execution and delivery of this Indenture,
the Company may deliver Securities of any series, together with any coupon
appertaining thereto, executed by the Company, to the Trustee for
authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, however,
that, in connection with its original issuance, no Bearer Security shall be
mailed or otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection
with its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, dated no earlier than
15 days prior to the earlier of the date on which such Bearer Security is
delivered and the date on which any temporary Security first becomes
exchangeable for such Bearer Security in accordance with the terms of such
temporary Security and this Indenture.
If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the
notation of a beneficial owner’s interest therein upon original issuance of
such Security or upon exchange of a portion of a temporary global Security
shall be deemed to be delivery in connection with its original issuance of such
beneficial owner’s interest in such permanent global Security. Except as permitted by Section 306, the
Trustee shall not authenticate and deliver any Bearer Security unless all
appurtenant coupons for interest then matured have been 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,
20
(i) an
Opinion of Counsel stating, in effect,
(a) that
the form or forms of such Securities and any coupons have been established in
conformity with the provisions of this Indenture;
(b) that
the terms of such Securities and any coupons have been established in
conformity with the provisions of this Indenture;
(c) that
all conditions precedent under this Indenture relating to the authentication and
delivery of such securities have been complied with; and
(d) that
such Securities, together with any coupons appertaining thereto, when completed
by appropriate insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this Indenture, authenticated and
delivered by the Trustee in accordance with this Indenture and issued by the
Company in the manner and subject to any conditions specified in such Opinion
of Counsel, will constitute legal, valid and binding obligations of the
Company, enforceable in accordance with their terms, subject to applicable
bankruptcy, insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of creditors’ rights, to
general equitable principles and to such other qualifications as such counsel
shall conclude do not materially affect the rights of Holders of such
Securities and any coupons; and
(ii) an
Officers’ Certificate stating, to the best of the knowledge of the signers of
such certificate, that no Event of Default with respect to any of the
Securities shall have occurred and be continuing.
Notwithstanding
the provisions of Section 301 and of this Section 303, if all the
Securities of any series are not to be issued at one time, it shall not be
necessary to deliver an Officers’ Certificate otherwise required pursuant to Section 301
or the Company Order, Opinion of Counsel or Officers’ Certificate otherwise
required pursuant to the preceding paragraph at the time of issuance of each
Security of such series, but such order, opinion and certificates, with
appropriate modifications to cover such future issuances, shall be delivered at
or before the time of issuance of the first Security of such series.
If
such form or terms have been so established, the Trustee shall not be required
to authenticate such Securities if the issue of such Securities pursuant to
this Indenture will affect the Trustee’s own rights, duties, obligations or
immunities under the Securities and this Indenture or otherwise in a manner
which is not reasonably acceptable to the Trustee. Notwithstanding the generality of the
foregoing, the Trustee will not be required to authenticate Securities
denominated in a Foreign Currency if the Trustee reasonably believes that it
would be unable to perform its duties with respect to such Securities.
Each
Registered Security shall be dated the date of its authentication and each
Bearer Security shall be dated as of the date specified as contemplated by Section 301.
No Security
or coupon shall be entitled to any benefit under this Indenture or be valid or
obligatory for any purpose unless there appears on such Security or Security to
which
21
such coupon appertains a certificate of authentication
substantially in the form provided for herein duly executed by the Trustee by
manual signature of an authorized signatory, and such certificate upon any
Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the
benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 310 together with a written statement (which need not
comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities. (a) Pending the
preparation of definitive Securities of any series, the Company may execute,
and upon Company Order the Trustee shall authenticate and deliver, temporary
Securities which are printed, lithographed, typewritten, mimeographed or otherwise
produced, in any authorized denomination, substantially of the tenor of the
definitive Securities in lieu of which they are issued, in registered form, or,
if authorized, in bearer form with one or more coupons or without coupons, and
with such appropriate insertions, omissions, substitutions and other variations
as the officers executing such Securities may determine, as conclusively
evidenced by their execution of such Securities. In the case of Securities of any series, such
temporary Securities may be in global form.
Except
in the case of temporary Securities in global form (which shall be
exchanged in accordance with Section 304(b) or as otherwise provided
in or pursuant to a Board Resolution), if temporary Securities of any series
are issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay.
After the preparation of definitive Securities of such series, the
temporary Securities of such series shall be exchangeable for definitive
Securities of such series upon surrender of the temporary Securities of such
series at the office or agency of the Company in a Place of Payment for that
series, without charge to the Holder.
Upon surrender for cancellation of any one or more temporary Securities
of any series (accompanied by any non-matured coupons appertaining
thereto), the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Securities
of the same series of authorized denominations; provided, however,
that no definitive Bearer Security shall be delivered in exchange for a
temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary
Bearer Security only in compliance with the conditions set forth in Section 303. Until so exchanged, the temporary Securities
of any series shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or
pursuant to a Board Resolution, this Section 304(b) shall govern the
exchange of temporary Securities issued in global form. If temporary Securities of any series are
issued in global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a depositary
or common depositary (the “Common Depositary”), for the benefit of Euroclear
and Clearstream, for credit to the respective accounts of the beneficial owners
of such Securities (or to such other accounts as they may direct).
22
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 of the
same series executed by the Company, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the
Company. On or after the Exchange Date,
such temporary global Security shall be surrendered by the Common Depositary to
the Trustee, as the Company’s agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities of the same series
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 as to the portion of such temporary
global Security held for its account then to be exchanged, each in the form set
forth in Exhibit A-2 to this Indenture or in such other form as may be
established pursuant to Section 301; and provided further
that definitive Bearer Securities shall be delivered in exchange for a portion
of a temporary global Security only in compliance with the requirements of Section 303.
Unless
otherwise specified in such temporary global Security, the interest of a
beneficial owner of Securities of a series in a temporary global Security shall
be exchanged for definitive Securities of the same series and of like tenor
following the Exchange Date when the account holder instructs Euroclear or
Clearstream, as the case may be, to request such exchange on his behalf and
delivers to Euroclear or Clearstream, 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, 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. 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 on such Interest
23
Payment Date upon delivery by Euroclear and
Clearstream 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,
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 and not paid as herein provided shall be returned to the Trustee
prior to the expiration of two years after such Interest Payment Date in order
to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and
Exchange. The Company shall cause to be kept at the
Corporate Trust Office of the Trustee or in any office or agency of the Company
in a Place of Payment a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the Company in a
Place of Payment being herein sometimes referred to collectively as the “Security
Register”) in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of Registered
Securities and of transfers of Registered Securities. The Security Register shall be in written
form or any other form capable of being converted into written form within a
reasonable time. The Trustee, at its
Corporate Trust Office, is hereby initially appointed “Security Registrar” for
the purpose of registering Registered Securities and transfers of Registered
Securities on such Security Register as herein provided. In the event that the Trustee shall cease to
be Security Registrar, it shall have the right to examine the Security Register
at all reasonable times.
Upon
surrender for registration of transfer of any Registered Security of any series
at any office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or more new
Registered Securities of the same series, of any authorized denominations and
of a like aggregate principal amount, bearing a number not contemporaneously
outstanding and containing identical terms and provisions.
At the
option of the Holder, Registered Securities of any series may be exchanged for
other Registered Securities of the same series, of any authorized denomination
or denominations and of a like aggregate principal amount, containing identical
terms and provisions, upon surrender of the Registered Securities to be
exchanged at any such office or
24
agency.
Whenever any Registered Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Registered Securities which the Holder making the exchange is entitled to
receive. Unless otherwise specified with
respect to any series of Securities as contemplated by Section 301, Bearer
Securities may not be issued in exchange for Registered Securities.
If
(but only if) permitted by the applicable Board Resolution and (subject to Section 303)
set forth in the applicable Officers’ Certificate, or in any indenture
supplemental hereto, delivered as contemplated by Section 301, at the
option of the Holder, Bearer Securities of any series may be exchanged for
Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer
Securities to be exchanged at any such office or agency, with all unmatured
coupons and all matured coupons in default thereto appertaining. If the Holder of a Bearer Security is unable
to produce any such unmatured coupon or coupons or matured coupon or coupons in
default, any such permitted exchange may be effected if the Bearer Securities
are accompanied by payment in funds acceptable to the Company in an amount
equal to the face amount of such missing coupon or coupons, or the surrender of
such missing coupon or coupons may be waived by the Company and the Trustee if
there is furnished to them such security or indemnity as they may require to
save each of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, however, that, except as
otherwise provided in Section 1002, interest represented by coupons shall
be payable only upon presentation and surrender of those coupons at an office
or agency located outside the United States.
Notwithstanding the foregoing, in case a Bearer Security of any series
is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of
business at such office or agency on (i) any Regular Record Date and
before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the
opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date or proposed date for
payment, as the case may be, and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed date for payment,
as the case may be, in respect of the Registered Security issued in exchange
for such Bearer Security, but will be payable only to the Holder of such coupon
when due in accordance with the provisions of this Indenture.
Whenever
any Securities are so surrendered for exchange, the Company shall execute, and
the Trustee shall authenticate and deliver, the Securities which the Holder
making the exchange is entitled to receive.
Notwithstanding
the foregoing, except as otherwise specified as contemplated by Section 301,
any permanent global Security shall be exchangeable only as provided in this
paragraph. If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which
25
such interest may be so exchanged, the Company shall
deliver to the Trustee definitive Securities in aggregate principal amount
equal to the principal amount of such beneficial owner’s interest in such
permanent global Security, executed by the Company. On or after the earliest date on which such
interests may be so exchanged, such permanent global Security shall be
surrendered by the Common Depositary or such other depositary as shall be
specified in the Company Order with respect thereto to the Trustee, as the
Company’s agent for such purpose, to be exchanged, in whole or from time to
time in part, for definitive Securities of the same series without charge and
the Trustee shall authenticate and deliver, in exchange for each portion of
such permanent global Security, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations and of
like tenor as the portion of such permanent global Security to be exchanged
which, unless the Securities of the series are not issuable both as Bearer
Securities and as Registered Securities, as specified as contemplated by Section 301,
shall be in the form of Bearer Securities or Registered Securities, or any
combination thereof, as shall be specified by the beneficial owner thereof; provided,
however, that no such exchanges may occur during a period beginning at
the opening of business 15 days before any selection of Securities to be
redeemed and ending on the relevant Redemption Date if the Security for which
exchange is requested may be among those selected for redemption; and provided
further that no Bearer Security delivered in exchange for a portion of a
permanent global Security shall be mailed or otherwise delivered to any
location in the United States. Promptly
following any such exchange in part such global Security shall be returned to
such other depository 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
shall be valid obligations of the Company, evidencing the same debt and
entitled to the same benefits under this Indenture, as the Securities
surrendered upon such registration of transfer or exchange.
Every
Registered Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing.
No
service charge shall be made for any registration of transfer or exchange of
Securities, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Securities, other than exchanges
pursuant to Section 304, 906, 1107 or 1305 not involving any transfer.
26
The
Company shall not be required (i) to issue, register the transfer of or
exchange any Security if such Security may be among those selected for
redemption during a period beginning at the opening of business 15 days before
selection of the Securities to be redeemed under Section 1103 and ending
at the close of business on (A) if such Securities are issuable only as
Registered Securities, the day of the mailing of the relevant notice of
redemption and (B) if such Securities are issuable as Bearer Securities,
the day of the first publication of the relevant notice of redemption or, if
such Securities are also issuable as Registered Securities and there is no
publication, the mailing of the relevant notice of redemption, or (ii) to
register the transfer of or exchange any Registered Security so selected for
redemption in whole or in part, except, in the case of any Registered Security
to be redeemed in part, the portion thereof not to be redeemed, or (iii) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be
simultaneously surrendered for redemption, or (iv) to issue, register the
transfer of or exchange any Security which has been surrendered for repayment
at the option of the Holder, except the portion, if any, of such Security not
to be so repaid.
SECTION 306. Mutilated, Destroyed, Lost and Stolen
Securities. If any mutilated Security or a Security with
a mutilated coupon appertaining to it is surrendered to the Trustee or the
Company, together with, in proper cases, such security or indemnity as may be
required by the Company or the Trustee to save each of them or any agent of
either of them harmless, the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a new Security of the same series
and principal amount, containing identical terms and provisions and bearing a
number not contemporaneously outstanding, with coupons corresponding to the
coupons, if any, appertaining to the surrendered Security.
If
there shall be delivered to the Company and to the Trustee (i) evidence to
their satisfaction of the destruction, loss or theft of any Security or coupon,
and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon its
request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and principal
amount, containing identical terms and provisions and bearing a number not
contemporaneously outstanding, with coupons corresponding to the coupons, if
any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
Notwithstanding
the provisions of the previous two paragraphs, in case any such mutilated,
destroyed, lost or stolen Security or coupon has become or is about to become
due and payable, the Company in its discretion may, instead of issuing a new
Security, with 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,
27
unless otherwise specified as contemplated by Section 301,
any interest on Bearer Securities shall be payable only upon presentation and
surrender of the coupons appertaining thereto.
Upon
the issuance of any new Security under this Section, the Company may require
the payment of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses (including the
fees and expenses of the Trustee) connected therewith.
Every
new Security of any series with its coupons, if any, issued pursuant to this Section in
lieu of any destroyed, lost or stolen Security, or in exchange for a Security
to which a destroyed, lost or stolen coupon appertains, shall constitute an
original additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Security and its coupons, if any, or the destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities of that series and their coupons, if any, duly
issued hereunder.
The
provisions of this Section are exclusive and shall preclude (to the extent
lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons.
SECTION 307. Payment of Interest; Interest Rights
Preserved; Optional Interest Reset. (a) Except as otherwise specified with
respect to a series of Securities in accordance with the provisions of Section 301,
interest, if any, on any Registered Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest at the office or agency of the Company maintained for such purpose
pursuant to Section 1002; provided, however, that each
installment of interest, if any, on any Registered Security, other than a
global Security on an Interest Payment Date, 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 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 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
28
agency) on the next succeeding Interest Payment Date,
such Bearer Security shall be surrendered without the coupon relating to such
Interest Payment Date and interest will not be payable on such Interest Payment
Date in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
Except
as otherwise specified with respect to a series of Securities in accordance
with the provisions of Section 301, any interest on any Registered
Security of any series that is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date (herein called “Defaulted Interest”)
shall forthwith cease to be payable to the registered Holder thereof on the
relevant Regular Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company, at its election in each case, as
provided in clause (1) or (2) below:
(1) The Company may
elect to make payment of any Defaulted Interest to the Persons in whose names
the Registered Securities of such series (or their respective Predecessor
Securities) are registered at the close of business on a Special Record Date
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall
notify the Trustee in writing of the amount of Defaulted Interest proposed to
be paid on each Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall deposit with
the Trustee an amount of money in the Currency in which the Securities of such
series are payable (except as otherwise specified pursuant to Section 301
for the Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) equal to the aggregate amount
proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit on or prior to the
date of the proposed payment, such money when deposited to be held in trust for
the benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which shall be not more than 15 days and not less than 10 days prior to
the date of the proposed payment and not less than 10 days after the
receipt by the Trustee of the notice of the proposed payment. The Trustee shall promptly notify the Company
of such Special Record Date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage prepaid, to each
Holder of Registered Securities of such series at his address as it appears in
the Security Register not less than 10 days prior to such Special Record
Date. Notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor having been mailed
as aforesaid, such Defaulted Interest shall be paid to the Persons in whose
names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
clause (2). In case a Bearer
Security of any series is surrendered at the office or agency in a Place of
Payment for such series in exchange for a Registered Security of such series
after the close of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on the related
proposed date for payment of Defaulted Interest, such Bearer Security shall be
surrendered without the
29
coupon
relating to such proposed date of payment and Defaulted Interest will not be
payable on such proposed date of payment in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
(2) The Company may make
payment of any Defaulted Interest on the Registered Securities of any series in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
(b) The provisions of this Section 307(b) may be
made applicable to any series of Securities pursuant to Section 301 (with
such modifications, additions or substitutions as may be specified pursuant to
such Section 301). The interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) on any Security of such series may be reset by the Company on
the date or dates specified on the face of such Security (each an “Optional
Reset Date”). The Company may exercise
such option with respect to such Security by notifying the Trustee of such
exercise at least 45 but not more than 60 days prior to an Optional Reset
Date for such Security. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in
the manner provided for in Section 106, to the Holder of any such Security
a notice (the “Reset Notice”) indicating whether the Company has elected to
reset the interest rate (or the spread or spread multiplier used to calculate
such interest rate, if applicable), and if so (i) such new interest rate
(or such new spread or spread multiplier, if applicable) and (ii) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity of such Security (each such period a “Subsequent
Interest Period”), including the date or dates on which or the period or
periods during which and the price or prices at which such redemption may occur
during the Subsequent Interest Period.
Notwithstanding
the foregoing, not later than 20 days prior to the Optional Reset Date,
the Company may, at its option, revoke the interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable) provided
for in the Reset Notice and establish an interest rate (or a spread or spread
multiplier used to calculate such interest rate, if applicable) that is higher
than the interest rate (or the spread or spread multiplier, if applicable)
provided for in the Reset Notice, for the Subsequent Interest Period by causing
the Trustee to transmit, in the manner provided for in Section 106, notice
of such higher interest rate (or such higher spread or spread multiplier, if
applicable) to the Holder of such Security.
Such notice shall be irrevocable.
All Securities with respect to which the interest rate (or the spread or
spread multiplier used to calculate such interest rate, if applicable) is reset
on an Optional Reset Date, and with respect to which the Holders of such
Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to the next succeeding paragraph, will bear
such higher interest rate (or such higher spread or spread multiplier, if
applicable).
The
Holder of any such Security will have the option to elect repayment by the
Company of the principal of such Security on each Optional Reset Date at a
price equal to the principal amount thereof plus interest accrued to such
Optional Reset Date. In order to obtain
30
repayment on an Optional Reset Date, the Holder must
follow the procedures set forth in Article Thirteen for repayment at the
option of Holders except that the period for delivery or notification to the
Trustee shall be at least 25 but not more than 35 days prior to such
Optional Reset Date and except that, if the Holder has tendered any Security
for repayment pursuant to the Reset Notice, the Holder may, by written notice
to the Trustee, revoke such tender or repayment until the close of business on
the tenth day before such Optional Reset Date.
Subject
to the foregoing provisions of this Section and Section 305, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
SECTION 308. Optional Extension of Maturity. The provisions of this Section 308 may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such Section 301). The Stated Maturity of any Security of such
series may be extended at the option of the Company for the period or periods
specified on the face of such Security (each an “Extension Period”) up to but
not beyond the date (the “Final Maturity”) set forth on the face of such
Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of such exercise
at least 45 but not more than 60 days prior to the Stated Maturity of such
Security in effect prior to the exercise of such option (the “Original Stated
Maturity”). If the Company exercises
such option, the Trustee shall transmit, on behalf of and at the request and
expense of the Company, in the manner provided for in Section 106, to the
Holder of such Security not later than 40 days prior to the Original
Stated Maturity a notice (the “Extension Notice”) indicating (i) the
election of the Company to extend the Stated Maturity, (ii) the new Stated
Maturity, (iii) the interest rate, if any, applicable to the Extension
Period and (iv) the provisions, if any, for redemption during such
Extension Period. Upon the Trustee’s
transmittal of the Extension Notice, the Stated Maturity of such Security shall
be extended automatically and, except as modified by the Extension Notice and
as described in the next paragraph, such Security will have the same terms as
prior to the transmittal of such Extension Notice.
Notwithstanding
the foregoing, not later than 20 days before the Original Stated Maturity
of such Security, the Company may, at its option, revoke the interest rate
provided for in the Extension Notice and establish a higher interest rate for
the Extension Period by causing the Trustee to transmit, in the manner provided
for in Section 106, notice of such higher interest rate (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 Stated Maturity is extended will bear such higher interest rate.
If the
Company extends the Stated Maturity of any Security, the Holder will have the
option to elect repayment of such Security by the Company on the Original
Stated Maturity at a price equal to the principal amount thereof, plus interest
accrued to such date. In order to obtain
repayment on the Original Stated Maturity once the Company has extended the
Stated Maturity thereof, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days
prior to the Original Stated Maturity and except that, if the Holder has
tendered any Security for repayment pursuant to an Extension
31
Notice, the Holder may by written notice to the
Trustee revoke such tender for repayment until the close of business on the
tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners. Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Security for the purpose of receiving payment
of principal of (and premium, if any) and (subject to Sections 305 and
307) interest, if any, on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Title
to any Bearer Security and any coupons appertaining thereto shall pass by
delivery. The Company, the Trustee and
any agent of the Company or the Trustee may treat the bearer of any Bearer
Security and the bearer of any coupon as the absolute owner of such Bearer Security
or coupon for the purpose of receiving payment thereof or on account thereof
and for all other purposes whatsoever, whether or not such Bearer Security or
coupon be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
None
of the Company, the Trustee, any Paying Agent or the Security Registrar will
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Notwithstanding
the foregoing, with respect to any global Security, nothing herein shall
prevent the Company, the Trustee, or any agent of the Company or the Trustee,
from giving effect to any written certification, proxy or other authorization
furnished by any depositary, as a Holder, with respect to such global Security
or impair, as between such depositary and owners of beneficial interests in
such global Security, the operation of customary practices governing the
exercise of the rights of such depositary (or its nominee) as Holder of such
global Security.
SECTION 310. Cancellation. All
Securities and coupons surrendered for payment, redemption, repayment at the
option of the Holder, registration of transfer or exchange or for credit
against any sinking fund payment shall, if surrendered to any Person other than
the Trustee, be delivered to the Trustee, and any such Securities and coupons
and Securities and coupons surrendered directly to the Trustee for any such
purpose shall be promptly cancelled by it.
The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and may deliver to the Trustee (or
to any other Person for delivery to the Trustee) for cancellation any
Securities previously authenticated hereunder which the Company has not issued
and sold, and all Securities so delivered shall be promptly cancelled by the
Trustee. If the Company shall so acquire
any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No Securities shall be authenticated in lieu
of or in exchange for any Securities cancelled as provided in this Section,
except as expressly permitted by this Indenture. Cancelled Securities and coupons held by the
32
Trustee shall be destroyed by the Trustee and the
Trustee shall deliver a certificate of such destruction to the Company, unless
by a Company Order the Company directs their return to it.
SECTION 311. Computation of Interest. Except as otherwise specified as contemplated by Section 301
with respect to Securities of any series, interest, if any, on the Securities of each series shall be
computed on the basis of a 360-day year consisting of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect
of Securities. (a) Unless otherwise specified with
respect to any Securities pursuant to Section 301, with respect to
Registered Securities of any series not permitting the election provided 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 Security or Bearer Security of such series will be made in the
Currency in which such Registered Security or Bearer Security, as the case may
be, is payable. The provisions of this Section 312
may be modified or superseded with respect to any Securities pursuant to Section 301.
(b) It may be provided pursuant to Section 301 with
respect to Registered Securities of any series that Holders shall have the
option, subject to paragraphs (d) and (e) below, to receive
payments of principal of (or premium, if any) or interest, if any, on such
Registered Securities in any of the Currencies which may be designated for such
election by delivering to the Trustee for such series of Registered Securities
a written election with signature guarantees and in the applicable form
established pursuant to Section 301, not later than the close of business
on the Election Date immediately preceding the applicable payment date. If a Holder so elects to receive such
payments in any such Currency, such election will remain in effect for such
Holder or any transferee of such Holder until changed by such Holder or such
transferee by written notice to the Trustee for such series of Registered
Securities (but any such change must be made not later than the close of
business on the Election Date immediately preceding the next payment date to be
effective for the payment to be made on such payment date and no such change of
election may be made with respect to payments to be made on any Registered
Security of such series with respect to which an Event of Default has occurred
or with respect to which the Company has deposited funds pursuant to Article Four
or Fourteen or with respect to which a notice of redemption has been given by
the Company or a notice of option to elect repayment has been sent by such
Holder or such transferee). Any Holder
of any such Registered Security who shall not have delivered any such election
to the Trustee of such series of Registered Securities not later than the close
of business on the applicable Election Date will be paid the amount due on the
applicable payment date in the relevant Currency as provided in Section 312(a). The Trustee for each such series of
Registered Securities shall notify the Exchange Rate Agent as soon as
practicable after the Election Date of the aggregate principal amount of
Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301,
if the election referred to in paragraph (b) above has been provided
for pursuant to Section 301, then, unless otherwise specified pursuant to Section 301,
not later than the fourth Business Day after the Election Date for each payment
date for Registered Securities of any series, the Exchange Rate Agent will
deliver to the Company a written notice specifying the Currency in which Registered
Securities
33
of such series are payable, the respective
aggregate amounts of principal of (and premium, if any) and interest, if any,
on the Registered Securities to be paid on such payment date, specifying the
amounts in such Currency so payable in respect of the Registered Securities as
to which the Holders of Registered Securities denominated in any Currency shall
have elected to be paid in another Currency as provided in paragraph (b) above. If the election referred to in
paragraph (b) above has been provided for pursuant to Section 301
and if at least one Holder has made such election, then, unless otherwise
specified pursuant to Section 301, on the second Business Day preceding
such payment date the Company will deliver to the Trustee for such series of
Registered Securities an Exchange Rate Officer’s Certificate in respect of the
Dollar or Foreign Currency or Currencies payments to be made on such payment
date. Unless otherwise specified pursuant
to Section 301, the Dollar or Foreign Currency or Currencies amount
receivable by Holders of Registered Securities who have elected payment in a
Currency as provided in paragraph (b) above shall be determined by
the Company on the basis of the applicable Market Exchange Rate in effect on
the second Business Day (the “Valuation Date”) immediately preceding each
payment date, and such determination shall be conclusive and binding for all
purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to paragraph (b) above,
then with respect to each date for the payment of principal of (and premium, if
any) and interest, if any on the applicable Securities denominated or payable
in such Foreign Currency occurring after the last date on which such Foreign
Currency was used (the “Conversion Date”), the Dollar shall be the currency of
payment for use on each such payment date.
Unless otherwise specified pursuant to Section 301, the Dollar
amount to be paid by the Company to the Trustee of each such series of
Securities and by such Trustee or any Paying Agent to the Holders of such
Securities with respect to such payment date shall be, in the case of a Foreign
Currency other than a currency unit, the Dollar Equivalent of the Foreign
Currency or, in the case of a currency unit, the Dollar Equivalent of the
Currency Unit, in each case as determined by the Exchange Rate Agent in the
manner provided in paragraph (f) or (g) below.
(e) Unless otherwise specified pursuant to Section 301,
if the Holder of a Registered Security denominated in any Currency shall have
elected to be paid in another Currency as provided in paragraph (b) above,
and a Conversion Event occurs with respect to such elected Currency, such
Holder shall receive payment in the Currency in which payment would have been
made in the absence of such election; and if a Conversion Event occurs with
respect to the Currency in which payment would have been made in the absence of
such 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
34
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.
“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.
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 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.
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
35
sole discretion and shall, in the absence of manifest
error, be conclusive for all purposes and irrevocably binding upon the Company,
the Trustee for the appropriate series of Securities and all Holders of such
Securities denominated or payable in the relevant Currency. The Exchange Rate Agent shall promptly give
written notice to the Company and the Trustee for the appropriate series of
Securities of any such decision or determination.
In the
event that the Company determines in good faith that a Conversion Event has
occurred with respect to a Foreign Currency, the Company will immediately give
written notice thereof to the Trustee of the appropriate series of Securities
and to the Exchange Rate Agent (and such Trustee will promptly thereafter give
notice in the manner provided in Section 106 to the affected Holders)
specifying the Conversion Date. In the
event the Company so determines that a Conversion Event has occurred with
respect to the Euro or any other currency unit in which Securities are
denominated or payable, the Company will immediately give written notice
thereof to the Trustee of the appropriate series of Securities and to the
Exchange Rate Agent (and such Trustee will promptly thereafter give notice in
the manner provided in Section 106 to the affected Holders) specifying the
Conversion Date and the Specified Amount of each Component Currency on the
Conversion Date. In the event the
Company determines in good faith that any subsequent change in any Component
Currency as set forth in the definition of Specified Amount above has occurred,
the Company will similarly give written notice to the Trustee of the
appropriate series of Securities and to the Exchange Rate Agent.
The
Trustee of the appropriate series of Securities shall be fully justified and
protected in relying and acting upon information received by it from the
Company and the Exchange Rate Agent and shall not otherwise have any duty or
obligation to determine the accuracy or validity of such information
independent of the Company or the Exchange Rate Agent.
SECTION 313. Appointment and Resignation of Successor
Exchange Rate Agent. (a) Unless otherwise specified pursuant
to Section 301, if and so long as the Securities of any series (i) are
denominated in a Foreign Currency or (ii) may be payable in a Foreign
Currency, or so long as it is required under any other provision of this
Indenture, then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent. The Company will cause the Exchange Rate
Agent to make the necessary foreign exchange determinations at the time and in
the manner specified pursuant to Section 301 for the purpose of
determining the applicable rate of exchange and, if applicable, for the purpose
of converting the denominated Foreign Currency into the applicable payment
Currency for the payment of principal (and premium, if any) and interest, if
any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no
appointment of a successor Exchange Rate Agent pursuant to this Section shall
become effective until the acceptance of appointment by the successor Exchange
Rate Agent as evidenced by a written instrument delivered to the Company and
the Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or
become incapable of acting, or if a vacancy shall occur in the office of the
Exchange Rate Agent for any cause,
36
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.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of
Indenture. This Indenture shall upon Company Request
cease to be of further effect with respect to any series of Securities
specified in such Company Request (except as to any surviving rights of
registration of transfer or exchange of Securities of such series expressly
provided for herein or pursuant hereto and any right to receive Additional
Amounts, as provided in Section 1004), and the Trustee, upon receipt of a
Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when:
(1) either:
(A) all
Securities of such series theretofore authenticated and delivered and all
coupons, if any, appertaining thereto (other than (i) coupons appertaining
to Bearer Securities surrendered for exchange for Registered Securities and
maturing after such exchange, whose surrender is not required or has been
waived as provided in Section 305, (ii) Securities and coupons of
such series which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 306, (iii) coupons
appertaining to Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as provided in Section 1106,
and (iv) Securities and coupons of such series for whose payment money has
theretofore been deposited in trust or segregated and held in trust by the
Company and thereafter repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee for
cancellation; or
37
(B) all Securities
of such series and, in the case of (i) or (ii) below, any coupons
appertaining thereto not theretofore delivered to the Trustee for cancellation:
(i) have
become due and payable, or
(ii) will
become due and payable at their Stated Maturity within one year, or
(iii) if
redeemable at the option of the Company, are to be called for redemption within
one year under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the expense, of the
Company,
and the Company, in the
case of (i), (ii) or (iii) above, has irrevocably deposited or caused
to be deposited with the Trustee as trust funds in trust for such purpose an
amount in the Currency in which the Securities of such series are payable,
sufficient to pay and discharge the entire indebtedness on such Securities and
such coupons not theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest, if any, to the date of such
deposit (in the case of Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid
or caused to be paid all other sums payable hereunder by the Company; and
(3) the Company has
delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have been
complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under Section 607,
the obligations of the Company to any Authenticating Agent under Section 612
and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the
obligations of the Trustee under Section 402 and the last paragraph of Section 1003
shall survive.
SECTION 402. Application of Trust Funds. Subject to the provisions of the last paragraph
of Section 1003, all money deposited with the Trustee pursuant to Section 401
shall be held in trust and applied by it, in accordance with the provisions of
the Securities, the coupons and this Indenture, to the payment, either directly
or through any Paying Agent (including the Company acting as its own Paying
Agent) as the Trustee may determine, to the Persons entitled thereto, of the
principal (and premium, if any) and interest, if any, for whose payment such
money has been deposited with or received by the Trustee, but such money need
not be segregated from other funds except to the extent required by law.
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ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default. “Event of Default”, wherever used herein with
respect to any particular series of Securities, means any one of the following
events (whatever the reason for such Event of Default and whether or not it
shall be occasioned by the provisions of Article Sixteen or be voluntary
or involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of
any interest upon any Security of that series or of any coupon appertaining
thereto, when such interest or coupon becomes due and payable, and continuance
of such default for a period of 30 days; or
(2) default in the payment of
the principal of (or premium, if any, on) any Security of that series when it becomes
due and payable at its Maturity; or
(3) default in the deposit of
any sinking fund payment, when and as due by the terms of any Security of that
series; or
(4) default in the performance,
or breach, of any covenant or agreement of the Company in this Indenture with
respect to any Security of that series (other than a covenant or agreement
a default in whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 60 days
after there has been given, by registered or certified mail, to the Company by
the Trustee or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a written notice
specifying such default or breach and requiring it to be remedied and stating
that such notice is a “Notice of Default” hereunder; or
(5) the Company pursuant to or
within the meaning of any Bankruptcy Law:
(A) commences
a voluntary case,
(B) consents
to the entry of an order for relief against it in an involuntary case,
(C) consents
to the appointment of a Custodian of it or for all or substantially all of its
property, or
(D) makes
a general assignment for the benefit of its creditors; or
(6) a court of competent
jurisdiction enters an order or decree under any Bankruptcy Law that:
(A) is
for relief against the Company in an involuntary case,
39
(B) appoints a Custodian of the Company or for all or
substantially all of its property, or
(C) orders
the liquidation of the Company,
and the order or decree remains unstayed and in effect for
90 days; or
(7) any other Event of Default
provided with respect to Securities of that series as specified and
contemplated by Section 301.
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 described in clause
(1), (2), (3), (4) and (7) of Section 501 with respect to Securities of any
series at the time Outstanding occurs and is continuing, then and in every such
case the Trustee or the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such
portion of the principal as may be specified in the terms thereof) of all the
Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal or specified portion thereof shall become
immediately due and payable.
At any
time after such a declaration of acceleration with respect to Securities of any
series has been made and before a judgment or decree for payment of the money
due has been obtained by the Trustee as hereinafter provided in this Article,
the Holders of a majority in principal amount of the Outstanding Securities of
that series, by written notice to the Company and the Trustee, may rescind and
annul such declaration and its consequences if:
(1) the Company has paid or
deposited with the Trustee a sum sufficient to pay in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e)):
(A) all
overdue installments of interest, if any, on all Outstanding Securities of that
series and any related coupons,
(B) the
principal of (and premium, if any, on) all Outstanding Securities of that
series which have become due otherwise than by such declaration of acceleration
and interest thereon at the rate or rates borne by or provided for in such
Securities,
(C) to
the extent that payment of such interest is lawful, interest upon overdue
installments of interest at the rate or rates borne by or provided for in such
Securities, and
40
(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.
If an Event of Default described in clause (5) or (6)
occurs and is continuing, then the principal amounts (or, if the Securities of
that series are Original Issue Discount Securities or Indexed Securities, such
portion of the principal amount as may be specified in the terms of that
series) of all the Securities then Outstanding, together with any accrued
interest through the occurrence of such Event of Default, shall become and be
due and payable immediately, without any declaration or other act by the
Trustee of any other Holder.
SECTION 503. Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in
the payment of any installment of interest on any Security of any series and
any related coupon when such interest becomes due and payable and such default
continues for a period of 30 days, or
(2) default is made in
the payment of the principal of (or premium, if any, on) any Security of any
series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee,
for the benefit of the Holders of Securities of such series and coupons, the
whole amount then due and payable on such Securities and coupons for principal
(and premium, if any) and interest, if any, with interest upon any overdue
principal (and premium, if any) and, to the extent that payment of such
interest shall be legally enforceable, upon any overdue installments of
interest, if any, at the rate or rates borne by or provided for in such
Securities, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel.
If the
Company fails to pay such amounts forthwith upon such demand, the Trustee, in
its own name and as trustee of an express trust, may institute a judicial
proceeding for the collection of the sums so due and unpaid, and may prosecute
such proceeding to judgment or final decree, and may enforce the same against
the Company or any other obligor upon Securities of such series and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon Securities of such
series, wherever situated.
If an
Event of Default with respect to Securities of any series occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce
its rights and the rights of the Holders of Securities of such series and any
related coupons by such appropriate judicial proceedings as the Trustee shall
deem most effectual to protect and enforce any such rights, whether for the
specific enforcement of any covenant or agreement in this Indenture or in aid
of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 504. Trustee May File Proofs of Claim. In
case of the pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other
41
obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal of the Securities of any series shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment
of any overdue principal, premium or interest) shall be entitled and empowered,
by intervention in such proceeding or otherwise:
(i) to file and prove a
claim for the whole amount of principal (or in the case of Original Issue
Discount Securities or Indexed Securities, such portion of the principal as may
be provided in the terms thereof)(and premium, if any) and interest, if any,
owing and unpaid in respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and of the
Holders allowed in such judicial proceeding, and
(ii) to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator,
sequestrator (or other similar official) in any such judicial proceeding is
hereby authorized by each Holder of Securities of such series and coupons to
make such payments to the Trustee, and in the event that the Trustee shall
consent to the making of such payments directly to the Holders, to pay to the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee and any predecessor Trustee, their
agents and counsel, and any other amounts due the Trustee or any predecessor
Trustee under Section 607.
Nothing
herein contained shall be deemed to authorize the Trustee to authorize or
consent to or accept or adopt on behalf of any Holder of a Security or coupon
any plan of reorganization, arrangement, adjustment or composition affecting
the Securities or coupons or the rights of any Holder thereof, or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security or
coupon in any such proceeding.
SECTION 505. Trustee May Enforce Claims Without
Possession of Securities or Coupons. All rights of action and claims under this
Indenture or any of the Securities or coupons may be prosecuted and enforced by
the Trustee without the possession of any of the Securities or coupons or the
production thereof in any proceeding relating thereto, and any such proceeding
instituted by the Trustee shall be brought in its own name as trustee of an
express trust, and any recovery of judgment shall, after provision for the
payment of the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities and coupons in respect of which such judgment has been
recovered.
SECTION 506. Application of Money Collected. Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, if any, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
42
FIRST: To the payment
of all amounts due the Trustee and any predecessor Trustee under Section 607;
SECOND: Subject to Article 16,
to the payment of the amounts then due and unpaid upon the Securities and
coupons for principal (and premium, if any) and interest, if any, in respect of
which or for the benefit of which such money has been collected, ratably,
without preference or priority of any kind, according to the aggregate amounts
due and payable on such Securities and coupons for principal (and premium, if
any) and interest, if any, respectively; and
THIRD: To the payment of
the remainder, if any, to the Company or any other Person or Persons entitled
thereto.
SECTION 507. Limitation on Suits. No Holder of any Security of any series or any
related coupon shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a receiver
or trustee, or for any other remedy hereunder, unless:
(1) such Holder has
previously given written notice to the Trustee of a continuing Event of Default
with respect to the Securities of that series;
(2) the Holders of not
less than 25% in principal amount of the Outstanding Securities of that series shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default in its own name as Trustee hereunder;
(3) such Holder or
Holders have offered to the Trustee reasonable indemnity against the costs,
expenses and liabilities to be incurred in compliance with such request;
(4) the Trustee for
60 days after its receipt of such notice, request and offer of indemnity
has failed to institute any such proceeding; and
(5) no direction
inconsistent with such written request has been given to the Trustee during
such 60-day period by the Holders of a majority in principal amount of the
Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders
shall have any right in any manner whatever by virtue of, or by availing of,
any provision of this Indenture to affect, disturb or prejudice the rights of
any other of such Holders, or to obtain or to seek to obtain priority or
preference over any other of such Holders or to enforce any right under this
Indenture, except in the manner herein provided and for the equal and ratable
benefit of all such Holders.
SECTION 508. Unconditional Right of Holders to Receive
Principal, Premium and Interest. Notwithstanding any other provision in this
Indenture, the Holder of any Security or coupon shall have the right which is
absolute and unconditional to receive payment of the principal of (and premium,
if any) and (subject to Sections 305 and 307) interest, if any, on such
Security or payment of such coupon on the respective due dates expressed in
such Security or coupon (or, in the case of redemption or repayment, on the
Redemption Date or the Repayment Date, as the case may be) and to institute
suit for the enforcement of any such payment, and such rights shall not be
impaired without the consent of such Holder.
43
SECTION 509. Restoration of Rights and Remedies. If the Trustee or any Holder of a Security or coupon
has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case the Company, the Trustee and the Holders of Securities
and coupons shall, subject to any determination in such proceeding, be restored
severally and respectively to their former positions hereunder and thereafter
all rights and remedies of the Trustee and the Holders shall continue as though
no such proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative. Except as otherwise provided with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons in the last paragraph of Section 306, no right or remedy herein
conferred upon or reserved to the Trustee or to the Holders of Securities or
coupons is intended to be exclusive of any other right or remedy, and every
right and remedy shall, to the extent permitted by law, be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The
assertion or employment of any right or remedy hereunder, or otherwise, shall
not prevent the concurrent assertion or employment of any other appropriate
right or remedy.
SECTION 511. Delay or Omission Not Waiver. No delay or omission of the Trustee or of any Holder
of any Security or coupon to exercise any right or remedy accruing upon any
Event of Default shall impair any such right or remedy or constitute a waiver
of any such Event of Default or acquiescence therein. Every right and remedy given by this Article or
by law to the Trustee or to the Holders may be exercised from time to time, and
as often as may be deemed expedient, by the Trustee or by the Holders of
Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities. The Holders of a majority in principal amount of the
Outstanding Securities of any series shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee with respect
to the Securities of such series, provided that
(1) such direction shall
not be in conflict with any rule of law or with this Indenture,
(2) the Trustee may take
any other action deemed proper by the Trustee which is not inconsistent with
such direction, and
(3) the Trustee need not
take any action which might involve it in personal liability or be unjustly
prejudicial to the Holders of Securities of such series not consenting.
SECTION 513. Waiver of Past Defaults. The Holders of not less than a majority in principal
amount of the Outstanding Securities of any series may on behalf of the Holders
of all the Securities of such series and any related coupons waive any past
default hereunder with respect to such series and its consequences, except a
default
44
(1) in the payment of
the principal of (or premium, if any) or interest, if any, on any Security of
such series or any related coupons, or
(2) in respect of a
covenant or provision hereof which under Article Nine cannot be modified
or amended without the consent of the Holder of each Outstanding Security of
such series affected.
Upon
any such waiver, such default shall cease to exist, and any Event of Default
arising therefrom shall be deemed to have been cured, for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default
or Event of Default or impair any right consequent thereon.
SECTION 514. Waiver of Stay or Extension Laws. The Company covenants (to the extent that it may
lawfully do so) that it will not at any time insist upon, or plead, or in any manner
whatsoever claim or take the benefit or advantage of, any stay or extension law
wherever enacted, now or at any time hereafter in force, which may affect the
covenants or the performance of this Indenture; and the Company (to the extent
that it may lawfully do so) hereby expressly waives all benefit or advantage of
any such law, and covenants that it will not hinder, delay or impede the
execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been
enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Certain Duties
and Responsibilities
(a) Except
during the continuance of an Event of Default:
(1) the Trustee undertakes to perform
such duties and only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(2) in the absence of bad faith on its
part, the Trustee may conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of this
Indenture; but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein or any conclusions stated therein).
(b) In
case an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his or her own
affairs.
45
(c) No
provision of this Indenture shall be construed to relieve the Trustee from
liability for its own negligent action, its own negligent failure to act, or
its own willful misconduct, except that:
(1) this Subsection shall not be
construed to limit the effect of Subsections (a) or (d) of this Section 601;
(2) the Trustee shall not be liable for
any error of judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with
respect to any action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in principal amount
of the Outstanding Securities of any series relating to the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this Indenture
with respect to the Securities of such series.
(d) No
provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance 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.
(e) Whether
or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection
to the Trustee shall be subject to the provisions of this Section 601.
SECTION 602. Notice of Defaults. Within 90 days after the occurrence of any Default
hereunder with respect to the Securities of any series, the Trustee shall
transmit in the manner and to the extent provided in TIA Section 313(c),
notice of such Default hereunder known to the Trustee, unless such Default
shall have been cured or waived; provided, however, that, except
in the case of a Default in the payment of the principal of (or premium, if
any) or interest, if any, on any Security of such series, or in the payment of
any sinking or purchase fund installment with respect to the Securities of such
series, the Trustee shall be protected in withholding such notice if and so
long as the board of directors, the executive committee or a trust committee of
directors and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Holders of the
Securities and coupons of such series; and provided further that
in the case of any Default or breach of the character specified in Section 501(4) with
respect to the Securities and coupons of such series, no such notice to Holders
shall be given until at least 60 days after the occurrence thereof.
SECTION 603. 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
46
document
believed by it to be genuine and to have been signed or presented by the proper
party or parties.
(2) Any request or
direction of the Company mentioned herein shall be sufficiently evidenced by a
Company Request or Company Order (other than delivery of any Bearer Security,
together with any coupons appertaining thereto, to the Trustee for
authentication and delivery pursuant to Section 303 which shall be
sufficiently evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
(3) Whenever in the
administration of this Indenture the Trustee shall deem it desirable that a
matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon a Board
Resolution, an Opinion of Counsel or an Officers’ Certificate.
(4) The Trustee may
consult with counsel and the advice of such counsel or any Opinion of Counsel
shall be full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(5) The Trustee shall be
under no obligation to exercise any of the rights or powers vested in it by
this Indenture at the request or direction of any of the Holders of Securities
of any series or any related coupons pursuant to this Indenture, unless such
Holders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(6) The Trustee shall
not be bound to make any investigation into the facts or matters stated in any
resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon or other
paper or document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney.
(7) The Trustee may
execute any of the trusts or powers hereunder or perform any duties hereunder
either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or
attorney appointed with due care by it hereunder.
(8) The Trustee shall
not be liable for any action taken, suffered or omitted by it in good faith and
believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture.
(9) The Trustee shall
not be responsible or liable for any failure or delay in the performance of its
obligations under this Indenture arising out of or caused, directly or
indirectly, by circumstances beyond its control, including, without limitation,
acts of God; earthquakes; fire; flood; terrorism; wars and other military
disturbances; sabotage;
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epidemics;
riots; interruptions; loss or malfunctions of utilities, computer (hardware or
software) or communication services; accidents; labor disputes; and acts of
civil or military authority and governmental action.
SECTION 604. Not Responsible for Recitals or Issuance of
Securities. The recitals contained herein and in the
Securities, except the Trustee’s certificate of authentication, and in any
coupons shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee nor any Authenticating
Agent shall be accountable for the use or application by the Company of
Securities or the proceeds thereof.
SECTION 605. May Hold Securities. The Trustee, any Paying Agent, Security Registrar,
Authenticating Agent or any other agent of the Company, in its individual or
any other capacity, may become the owner or pledgee of Securities and coupons
and, subject to TIA Sections 310(b) and 311, may otherwise deal with
the Company with the same rights it would have if it were not Trustee, Paying
Agent, Security Registrar, Authenticating Agent or such other agent.
SECTION 606. Money Held in Trust. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The Trustee shall be under no liability for
interest on any money received by it hereunder except as otherwise agreed with
the Company.
SECTION 607. Compensation and Reimbursement. The Company agrees:
(1) To pay to the
Trustee from time to time 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 willful misconduct.
(3) To indemnify each of
the Trustee and any predecessor Trustee and their officers, agents, directors
and employees for, and to hold them harmless against, any loss, liability or
expense incurred without negligence or willful misconduct 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
48
liability
in connection with the exercise or performance of any of its powers or duties
hereunder.
As security
for the performance of the obligations of the Company under this Section, the
Trustee shall have a claim prior to the Securities upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
payment of principal of (or premium, if any) or interest, if any, on particular
Securities or any coupons.
In
addition to, but without prejudice to its other rights under this Indenture,
when the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 501(5) or (6), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable U.S. federal or state bankruptcy,
insolvency or other similar law.
“Trustee”
for purposes of this Section shall include any predecessor Trustee;
provided, however, that the negligence, willful misconduct or bad faith of any
Trustee hereunder shall not affect the rights of any other Trustee hereunder.
The
provisions of this Section shall survive the satisfaction and discharge of
the Securities, the termination for any reason of this Indenture, and the
resignation or removal of the Trustee.
SECTION 608. Corporate Trustee Required;
Eligibility. There shall at all times be a Trustee
hereunder which shall be eligible to act as Trustee under TIA Section 310(a)(1) and
shall have a combined capital and surplus of at least $50,000,000. If such corporation publishes reports of
condition at least annually, pursuant to law or the requirements of Federal,
State, Territorial or District of Columbia supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 609. 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 610.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal
amount of the Outstanding Securities of such series delivered to the Trustee
and to the Company.
(d) If at any time:
(1) the Trustee shall
fail to comply with the provisions of TIA Section 310(b) after
written request therefor by the Company or by any Holder of
49
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 608(a) and shall fail to resign
after written request therefor by the Company or by any Holder of a Security
who has been a bona fide Holder of a Security for at least six months, or
(3) the Trustee shall
become incapable of acting or shall be adjudged a bankrupt or insolvent or a
receiver of the Trustee or of its property shall be appointed or any public
officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by or pursuant to a Board
Resolution may remove the Trustee and appoint a successor Trustee with respect
to all Securities, or (ii) subject to TIA Section 315(e), any Holder
of a Security who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee with respect
to all Securities and the appointment of a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the
giving of a notice of resignation or the delivery of an Act of removal, the
Trustee resigning or being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause with respect to the Securities of one or more series, the Company, by
or pursuant to a Board Resolution, shall promptly appoint a successor Trustee
or Trustees with respect to the Securities of that or those series (it
being understood that any such successor Trustee may be appointed with respect
to the Securities of one or more or all of such series and that at any time
there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee with respect to the Securities of any series shall
be appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee with respect to
the Securities of such series and to that extent supersede the successor
Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been
so appointed by the Company or the Holders of Securities and accepted appointment
in the manner hereinafter provided, any Holder of a Security who has been a
bona fide Holder of a Security of such series for at least six months may, on
behalf of himself and all others similarly situated, petition any court of
competent jurisdiction for the appointment of a successor Trustee with respect
to Securities of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106. Each notice shall include the name of the
successor Trustee with respect to the Securities of such series and the address
of its Corporate Trust Office.
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SECTION 610. Acceptance of Appointment by Successor. (a)
In case of the appointment hereunder of a successor Trustee with respect to all
Securities, every such successor Trustee shall execute, acknowledge and deliver
to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act,
deed or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on request of the Company or the successor
Trustee, such retiring Trustee shall, upon payment of its charges and all other
amounts payable to it hereunder, 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 607.
(b) In case of the appointment hereunder of a successor
Trustee with respect to the Securities of one or more (but not all) series, the
Company, the retiring Trustee and each successor Trustee with respect to the
Securities of one or more series shall execute and deliver an indenture
supplemental hereto wherein each successor Trustee shall accept such
appointment and which (1) shall contain such provisions as shall be
necessary or desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to which the appointment
of such successor Trustee relates, (2) if the retiring Trustee is not
retiring with respect to all Securities, shall contain such provisions as shall
be deemed necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of that or
those series as to which the retiring Trustee is not retiring shall continue to
be vested in the retiring Trustee, and (3) shall add to or change any of
the provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental indenture shall
constitute such Trustees co-trustees of the same trust and that each such
Trustee shall be trustee of a trust or trusts hereunder separate and apart from
any trust or trusts hereunder administered by any other such Trustee; and upon
the execution and delivery of such supplemental indenture the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and each such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee with respect to the Securities of that or those series
to which the appointment of such successor Trustee relates; but, on request of
the Company or any successor Trustee, such retiring Trustee shall, upon payment
of its charges and all other amounts payable to it hereunder, 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, subject nevertheless
to the retiring Trustee’s claim provided for in Section 607.
(c) Upon request of any such successor Trustee, the Company
shall execute any and all instruments for more fully and certainly vesting in
and confirming to such successor Trustee all such rights, powers and trusts
referred to in paragraph (a) or (b) of this Section, as the case
may be.
(d) No successor Trustee shall accept its appointment unless
at the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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SECTION 611. 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 its own name, with the full force and effect which
this Indenture provides for the certificate of authentication of the Trustee.
SECTION 612. Appointment
of Authenticating Agent. At any time
when any of the Securities remain Outstanding, the Trustee may appoint an
Authenticating Agent or Agents with respect to one or more series of Securities
which shall be authorized to act on behalf of the Trustee to authenticate
Securities of such series issued upon exchange, registration of transfer or
partial redemption thereof, and Securities so authenticated shall be entitled
to the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder. Any such appointment
shall be evidenced by an instrument in writing signed by a Responsible Officer
of the Trustee, a copy of which instrument shall be promptly furnished to the
Company. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee’s certificate of authentication, such reference shall be deemed
to include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent.
Each Authenticating Agent shall be acceptable to the Company and, except
as may otherwise be provided pursuant to Section 301, shall at all times
be a bank or trust company or corporation organized and doing business and in
good standing under the laws of the United States of America or of any State or
the District of Columbia, authorized under such laws to act as Authenticating
Agent, having a combined capital and surplus of not less than $1,500,000 and
subject to supervision or examination by U.S. federal or state
authorities. If such Authenticating
Agent publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to all or
substantially all of 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
52
under this Section, without the execution or filing of
any paper or further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent for any series of Securities
may at any time resign by giving written notice of resignation to the Trustee
for such series and to the Company. The
Trustee for any series of Securities may at any time terminate the agency of an
Authenticating Agent by giving written notice of termination to such
Authenticating Agent and to the Company.
Upon receiving such a notice of resignation or upon such a termination,
or in case at any time such Authenticating Agent shall cease to be eligible in
accordance with the provisions of this Section, the Trustee for such series may
appoint a successor Authenticating Agent which shall be acceptable to the
Company and shall give notice of such appointment to all Holders of Securities
of the series with respect to which such Authenticating Agent will serve in the
manner set forth in Section 106.
Any successor Authenticating Agent upon acceptance of its appointment
hereunder shall become vested with all the rights, powers and duties of its
predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent
from time to time reasonable compensation including reimbursement of its
reasonable expenses for its services under this Section.
If an appointment with respect to one or more series
is made pursuant to this Section, the Securities of such series may have
endorsed thereon, in addition to or in lieu of the Trustee’s certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
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THE BANK OF NEW YORK MELLON,
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as Trustee
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By:
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as Authenticating Agent
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By:
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as Authorized Signatory
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ARTICLE SEVEN
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure
of Names and Addresses of Holders. Every Holder of Securities or coupons, by
receiving and holding the same, agrees with the Company and the Trustee that
neither the Company nor the Trustee nor any Authenticating Agent nor any Paying
Agent nor any Security Registrar shall be held accountable by reason of the
disclosure of any information as to the names and addresses of the Holders of
Securities in accordance with TIA Section 312, regardless of the source
from which such information was derived, and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
TIA Section 312(b).
SECTION 702. Reports
by Trustee. Within
60 days after May 15 of each year commencing with the first May 15
after the first issuance of Securities pursuant to this Indenture, the Trustee
shall transmit by mail to all Holders of Securities as provided in TIA Section 313(c) a
brief report dated as of such May 15 if required by TIA Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly
notify the Trustee of the listing of the Securities on any stock exchange and
of any delisting thereof.
SECTION 703. Reports
by Company. The Company
will:
(1) file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or copies of such
portions of any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the Commission
pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934; or, if the Company is not required to file information,
documents or reports pursuant to either of such Sections, then it will file
with the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of the
supplementary and periodic information, documents and reports which may be
required pursuant to Section 13 of the Securities Exchange Act of 1934 in
respect of a security listed and registered on a national securities exchange
as may be prescribed from time to time in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the Commission,
such additional information, documents and reports with respect to compliance
by the Company with 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
54
filed by the Company pursuant to
paragraphs (1) and (2) of this Section as may be required
by rules and regulations prescribed from time to time by the Commission.
Delivery of reports, information and documents to the
Trustee under this Section 703 is for informational purposes only and the
Trustee’s receipt of the foregoing shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company’s compliance with any of its respective
covenants hereunder (as to which the Trustee is entitled to rely exclusively on
Officers’ Certificates).
SECTION 704. Calculation
of Original Issue Discount. Upon
request of the Trustee, the Company shall file with the Trustee promptly at the
end of each calendar year a written notice specifying the amount of original
issue discount (including daily rates and accrual periods), if any, accrued on
Outstanding Securities as of the end of such year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company
May Consolidate, etc., Only on Certain Terms. The Company shall not
consolidate with or merge with or into any other Person or convey or transfer
its properties and assets substantially as an entirety to any Person, unless:
(1) either the Company shall be the continuing corporation, or
the corporation (if other than the Company) formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
expressly assume, by an indenture supplemental hereto, executed and delivered
to the Trustee, in form satisfactory to the Trustee, the due and punctual
payment of the principal of (and premium, if any) and interest, if any, on all
the Securities and the performance of every covenant of this Indenture on the
part of the Company to be performed or observed;
(2) immediately after giving effect to such transaction, no
Default or Event of Default shall have happened and be continuing;
(3) if as a result thereof any property or assets of the
Company or a Restricted Subsidiary would become subject to any mortgage, lien,
pledge, charge or other encumbrance not permitted by (i) through (xi) of
paragraph (a) of Section 1006 or paragraph (b) of Section 1006,
compliance shall be effected with the first clause of paragraph (a) of
Section 1006; and
(4) the Company and the successor Person have delivered to the
Trustee an Officers’ Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent
herein provided for relating to such transaction have been complied with.
SECTION 802. Successor
Person Substituted. Upon any consolidation or
merger, or any conveyance or transfer of the properties and assets of the
Company substantially
55
as an entirety in accordance with Section 801, the successor
corporation formed by such consolidation or into which the Company is merged or
the successor Person to which such conveyance or transfer is made shall succeed
to, and be substituted for, and may exercise every right and power of, the
Company under this Indenture with the same effect as if such successor had been
named as the Company herein; and in the event of any such conveyance or
transfer, the Company shall be discharged from all obligations and covenants
under this Indenture and the Securities and coupons and may be dissolved and
liquidated.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental
Indentures Without Consent of Holders. Without the consent of any Holders of
Securities or coupons, the Company, when authorized by or pursuant to a Board
Resolution, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the
Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of the
Company herein and in the Securities contained; or
(2) to add to the covenants of the Company for the benefit of
the Holders of all or any series of Securities (and if such covenants are to be
for the benefit of less than all series of Securities, stating that such
covenants are expressly being included solely for the benefit of such series)
or to surrender any right or power herein conferred upon the Company; or
(3) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit of
such series); provided, however, that in respect of any such
additional Events of Default such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or longer
than that 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
56
of the Holders of Securities of any series or
any related coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series created
prior to the execution of such supplemental indenture which is entitled to the
benefit of such provision; or
(6) to secure the Securities pursuant to the requirements of Section 801
or 1006, or otherwise; or
(7) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including
the provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); or
(8) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision herein, or
to make any other provisions with respect to matters or questions arising under
this Indenture; provided that any such action shall not adversely affect
the interests of the Holders of Securities of any series or any related coupons
in any material respect; or
(10) to supplement any of the provisions of this Indenture to
such extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and
1403; provided that any such action shall not adversely affect the
interests of the Holders of Securities of such series and any related coupons
or any other series of Securities in any material respect.
SECTION 902. Supplemental
Indentures with Consent of Holders. With the consent of the
Holders of not less than a majority in principal amount of all Outstanding
Securities affected by such supplemental indenture, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by or
pursuant to a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders of Securities and any
related coupons under this Indenture; provided, however, that no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest on, any
Security, or reduce the principal amount thereof or the rate of interest
thereon (or manner of calculating such rate), or any premium payable upon the
redemption or repayment thereof or change the date(s) or period(s) for any
redemption or repayment, or change any obligation of the Company to pay
Additional Amounts pursuant to Section 1004 (except as contemplated by Section 801(1) and
permitted by Section 901(1)), or reduce the portion of the principal of an
Original Issue Discount
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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 change any
Place of Payment where, or the Currency in which, any Security or any premium
or interest thereon is payable, or impair the right to institute suit for the
enforcement of any such payment on or after the Stated Maturity thereof (or, in
the case of redemption or repayment at the option of the Holder, on or after
the Redemption Date or the Repayment Date, as the case may be), or adversely
affect any right to convert or exchange any Security as may be provided
pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is required
for any such supplemental indenture, or the consent of whose Holders is
required for any waiver with respect to such series (of compliance with
certain provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the requirements of Section 1504
for quorum or voting, or
(3) modify any of the provisions of this Section, Section 513
or Section 1008, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby, or
(4) modify any of the provisions of this Indenture relating to
the subordination of the Securities of any series that is subordinated to Senior
Indebtedness in a manner adverse to the Holders 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.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Persons entitled to consent to
any indenture supplemental hereto. If a
record date is fixed, the Holders on such record date, or their duly designated
proxies, and only such Persons, shall be entitled to consent to such
supplemental indenture, whether or not such Holders remain Holders after such
record date; provided that unless such consent shall have become
effective by virtue of the requisite percentage having been obtained prior to
the date which is 90 days after such record date, any such consent previously
given shall automatically and without further action by any Holder be cancelled
and of no further effect.
SECTION 903. Execution
of Supplemental Indentures. In
executing, or accepting the additional trusts created by, any supplemental
indenture permitted by this Article or the modification thereby of the
trusts created by this Indenture, the Trustee shall be entitled to
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receive, and shall be (subject to Section 315 of the Trust Indenture
Act) fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall
not be obligated to, enter into any such supplemental indenture which affects
the Trustee’s own rights, duties or immunities under this Indenture or
otherwise.
SECTION 904. Effect
of Supplemental Indentures. Upon
the execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Securities theretofore or thereafter authenticated and delivered hereunder and
of any coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity
with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the
requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference
in Securities to Supplemental Indentures. Securities of any series authenticated and
delivered after the execution of any supplemental indenture pursuant to this Article may,
and shall, if required by the Trustee, bear a notation in form approved by the
Trustee as to any matter provided for in such supplemental indenture. If the Company shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities of such series.
SECTION 907. Effect
on Senior Indebtedness. No
supplemental indenture shall adversely affect the rights of any holder of Outstanding
Senior Indebtedness under Article Sixteen without the consent of such
holder.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment
of Principal, Premium and Interest. The Company covenants and
agrees for the benefit of the Holders of each series of Securities that it will
duly and punctually pay the principal of (and premium, if any) and interest, if
any, on the Securities of that series in accordance with the terms of such
series of Securities, any coupons appertaining thereto and this Indenture. Any interest due on Bearer Securities on or
before Maturity, other than Additional Amounts, if any, payable as provided in Section 1004
in respect of principal of (or premium, if any, on) such a Security, shall be
payable only upon presentation and surrender of the several coupons for such
interest installments as are evidenced thereby as they severally mature. Unless otherwise specified with respect to
Securities of any series pursuant to Section 301, at the option of the
Company, all payments of principal of (and premium, if any) and interest 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 Bearer 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.
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SECTION 1002. Maintenance
of Office or Agency. If Securities of a series
are issuable only as Registered Securities, the Company shall maintain in each
Place of Payment for any series of Securities an office or agency where
Securities of that series may be presented or surrendered for payment, where
Securities of that series may be surrendered for registration of transfer or
exchange, where Securities of that series that are convertible or exchangeable
may be surrendered for conversion or exchange, as applicable, and where notices
and demands to or upon the Company in respect of the Securities of that series
and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain (A) in the Borough of Manhattan, The City of New York, an office
or agency where any Registered Securities of that series may be presented or
surrendered for payment, where any Registered Securities of that series may be
surrendered for registration of transfer, where Securities of that series may
be surrendered for exchange, where Securities of that series that are
convertible or exchangeable may be surrendered for conversion or exchange, as
applicable, where notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where Bearer
Securities of that series and related coupons may be presented or surrendered
for payment in the circumstances described in the following paragraph (and
not otherwise), (B) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series which is located outside the United
States, an office or agency where Securities of that series and related coupons
may be presented and surrendered for payment; provided, however,
that if the Securities of that series are listed on the Luxembourg Stock
Exchange or any other stock exchange located outside the United States and such
stock exchange shall so require, the Company will maintain a Paying Agent for
the Securities of that series in Luxembourg or any other required city located
outside the United States, as the case may be, so long as the Securities of
that series are listed on such exchange, and (C) subject to any laws or
regulations applicable thereto, in a Place of Payment for that series located
outside the United States an office or agency where any Registered Securities
of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where Securities of
that series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable, and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may
be served. The Company will give prompt
written notice to the Trustee of the location, and any change in the location,
of each such office or agency. If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, except that Bearer Securities of that series and the
related coupons may be presented and surrendered for payment at the offices
specified in the Security, in London, England, and the Company hereby appoints
the same as its agent to receive such respective presentations, surrenders,
notices and demands, and the Company hereby appoints the Trustee its agent to
receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any
Securities pursuant to Section 301, no payment of principal, premium or
interest on Bearer Securities shall be made at any office or agency of the
Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the
United States; provided, however, that, notwithstanding anything
to the contrary contained herein, if the Securities of a series are payable in
Dollars, payment of principal of (and premium, if any) and interest, if any, on
any Bearer Security shall be made at the office of the Company’s Paying Agent
in the Borough of Manhattan, The City of New York, if (but only if)
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payment
in Dollars of the full amount of such principal, premium or interest, as the
case may be, at all offices or agencies outside the United States maintained
for such purpose by the Company in accordance with this Indenture, is illegal
or effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or
more other offices or agencies where the Securities of one or more series may
be presented or surrendered for any or all of such purposes, and may from time
to time rescind such designations; provided, however, that no
such designation or rescission shall in any manner relieve the Company of its
obligation to maintain an office or agency in accordance with the requirements
set forth above for Securities of any series for such purposes. The Company will give prompt written notice
to the Trustee of any such designation or rescission and of any change in the
location of any such other office or agency.
Unless otherwise specified with respect to any Securities pursuant to Section 301
with respect to a series of Securities, subject to the immediately preceding
paragraph, the Company hereby designates as Places of Payment for each series
of Securities the office or agency of the Company in the Borough of Manhattan,
The City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent and the Corporate Trust
Office of the Trustee as the Office or Agency of the Company, 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 Foreign Currency or (ii) may
be payable in a Foreign Currency other than Dollars, 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.
SECTION 1003. Money
for Securities Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent with respect
to any series of any Securities and any related coupons, it will, on or before
each due date of the principal of (or premium, if any) or interest, if any, on
any of the Securities of that series, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay the principal of (and premium, if any) and interest, if any,
on Securities of such series so becoming due until such sums shall be paid to
such Persons or otherwise disposed of as herein provided, and will promptly
notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying
Agents for any series of Securities and any related coupons, it will, on or
before each due date of the principal of (or premium, if any) or interest, if
any, on any Securities of that series, deposit with a Paying Agent a sum (in
the Currency described in the preceding paragraph) sufficient to pay the
principal (or premium, if any) or interest, if any, so becoming due, such sum
to be held in trust for the benefit of the Persons entitled to such principal,
premium or interest and (unless such Paying Agent is the Trustee) the Company
will promptly notify the Trustee of its action or failure so to act.
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The Company may at any time, for the purpose of obtaining
the satisfaction and discharge of this Indenture or for any other purpose, pay,
or by Company Order direct any Paying Agent to pay, to the Trustee all sums
held in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such sums.
Except as otherwise provided in the Securities of any
series, any money deposited with the Trustee or any Paying Agent, or then held
by the Company, in trust for the payment of the principal of (or premium, if
any) or interest, if any, on any Security of any series and remaining unclaimed
for two years after such principal, premium or interest has become due and
payable shall be paid to the Company upon Company Request or (if then held by
the Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as an unsecured general creditor, look only to the Company
for payment of such principal, premium or interest on any Security, without
interest thereon, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the
Trustee or such Paying Agent, before being required to make any such repayment,
shall at the expense of the Company cause to be published once, in an
Authorized Newspaper, notice that such money remains unclaimed and that, after
a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 1004. Additional
Amounts. If the Securities of a
series provide for the payment of Additional Amounts, the Company will pay to
the Holder of a Security of such series or any coupon appertaining thereto
Additional Amounts as may be specified as contemplated by Section 301. Whenever in this Indenture there is
mentioned, in any context, the payment of the principal of (or premium, if any)
or interest, if any, on any Security of any series or payment of any related
coupon or the net proceeds received on the sale or exchange of any Security of
any series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series established pursuant to
Section 301 to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to such terms and express
mention of the payment of Additional Amounts (if applicable) in any provisions
hereof shall not be construed as excluding Additional Amounts in those
provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to
that series of Securities (or if the Securities of that series will not bear
interest prior to Maturity, the first day on which a payment of principal and
any premium is made), and at least 10 days prior to each date of payment
of principal, premium or interest if there has been any change with respect to
the matters set forth in the below-mentioned Officers’ Certificate, the Company
will furnish the Trustee and the Company’s principal Paying Agent or Paying
Agents, if other than the Trustee, with an Officers’ Certificate instructing
the Trustee and such Paying Agent or Paying Agents whether such payment of
principal, premium or interest on the Securities of that series shall be made
to Holders of Securities of that series or any related coupons who are not
United States persons without withholding for or on account of any tax,
assessment or other governmental charge described in the Securities of the
series. If any such
62
withholding
shall be required, then such Officers’ Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities of that series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. In the event that the
Trustee or any Paying Agent, as the case may be, shall not so receive the
above-mentioned certificate, then the Trustee or such Paying Agent shall be
entitled (i) to assume that no such withholding or deduction is required
with respect to any payment of principal or interest with respect to any
Securities of a series or related coupons until it shall have received a
certificate advising otherwise and (ii) to make all payments of principal
and interest with respect to the Securities of a series or related coupons
without withholding or deductions until otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or willful
misconduct on their part arising out of or in connection with actions taken or
omitted by any of them in reliance on any Officers’ Certificate furnished
pursuant to this Section or in reliance on the Company’s not furnishing
such an Officers’ Certificate.
SECTION 1005. Statement
as to Compliance. The Company will deliver
to the Trustee, within 120 days after the end of each fiscal year, a brief
certificate from the principal executive officer, principal financial officer
or principal accounting officer as to his or her knowledge of the Company’s
compliance with all conditions and covenants under this Indenture. For purposes of this Section 1005, such
compliance shall be determined without regard to any period of grace or
requirement of notice under this Indenture.
SECTION 1006. Limitation
on Liens. (a) The Company will not,
nor will it permit any Restricted Subsidiary to, issue, incur, assume or
guarantee any debt (hereinafter in this Article Ten referred to as “Debt”)
secured by any mortgage, security interest, pledge, lien or other encumbrance
(hereinafter called “mortgage” or “mortgages”) upon any Important Property of
the Company or of a Restricted Subsidiary or upon any shares of stock or
indebtedness of any Restricted Subsidiary (whether such Important Property,
shares of stock or indebtedness is now owned or hereafter acquired) without in
any such case effectively providing, concurrently with the issuance,
incurrence, assumption or guaranty of any such Debt, that the Securities
(together with, if the Company shall so determine, any other indebtedness of or
guaranteed by the Company or such Restricted Subsidiary ranking equally with
the Securities and then existing or thereafter created) shall be secured
equally and ratably with or prior to such Debt; provided, however,
that the foregoing restrictions shall not apply to:
(i) mortgages on any property acquired,
constructed or improved by the Company or any Restricted Subsidiary after the
date of this Indenture which are created or assumed contemporaneously with, or
within 120 days after, such acquisition, construction or improvement to secure
or provide for the payment of all or any part of the purchase price of such
property or the cost of such construction or improvement incurred after the
date of this Indenture, or (in addition to mortgages contemplated by
clauses (ii), (iii) and (iv) below) mortgages on any property
existing at the time of acquisition thereof; provided that such
mortgages shall not apply to any Important Property theretofore owned by the
Company or any Restricted Subsidiary other than, in the case of any such
construction or improvement, any theretofore unimproved real property on which
the property so constructed, or the improvement, is located;
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(ii) mortgages on any property, shares of
stock, or indebtedness existing at the time of acquisition thereof from a
corporation which is consolidated with or merged into, or substantially all of
the assets of which are acquired by, the Company or a Restricted Subsidiary;
(iii) mortgages on property of a corporation
existing at the time such corporation becomes a Restricted Subsidiary;
(iv) mortgages to secure Debt of a
Restricted Subsidiary to the Company or to another Restricted Subsidiary;
(v) mortgages in favor of the United
States of America or any State thereof, or any department, agency or
instrumentality or political subdivision of the United States of America or any
State thereof, to secure partial, progress, advance or other payments pursuant
to any contract or statute or to secure any indebtedness incurred for the
purpose of financing all or any part of the purchase price or the cost of
constructing or improving the property subject to such mortgages and mortgages
given to secure indebtedness incurred in connection with the financing of
construction of pollution control facilities, the interest on which
indebtedness is exempt from income taxes under the Internal Revenue Code of the
United States of America;
(vi) any deposit or pledge of assets (1) with
any surety company or clerk of any court, or in escrow, as collateral in
connection with, or in lieu of, any bond on appeal from any judgment or decree
against the Company or a Restricted Subsidiary, or in connection with other
proceedings or actions at law or in equity by or against the Company or a
Restricted Subsidiary, or (2) as security for the performance of any
contract or undertaking not directly or indirectly related to the borrowing of
money or the securing of indebtedness, if made in the ordinary course of
business, or (3) with any governmental agency, which deposit or pledge is
required or permitted to qualify the Company or a Restricted Subsidiary to
conduct business, to maintain self-insurance, or to obtain the benefits of any
law pertaining to workers’ compensation, unemployment insurance, old age
pensions, social security, or similar matters, or (4) made in the ordinary
course of business to obtain the release of mechanics’, workmen’s, repairmen’s,
warehousemen’s or similar liens, or the release of property in the possession
of a common carrier;
(vii) mortgages existing on property acquired
by the Company or a Restricted Subsidiary through the exercise of rights
arising out of defaults on receivables acquired in the ordinary course of
business;
(viii) judgment liens, so long as the finality
of such judgment is being contested in good faith and execution thereon is
stayed;
(ix) mortgages for the sole purpose of
extending, renewing or replacing in whole or in part Debt secured by any
mortgage referred to in the foregoing clauses (i) to (viii),
inclusive, or in this clause (ix); provided, however, that
the principal amount of Debt secured thereby shall not exceed the principal
amount of Debt so secured at the time of such extension, renewal or
replacement, and that such extension, renewal or
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replacement shall be limited to all or a part
of the property which secured the mortgage so extended, renewed or replaced
(plus improvements on such property);
(x) liens for taxes or assessments or
governmental charges or levies not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in good faith
by appropriate proceedings; landlord’s liens on property held under lease; and
any other liens of a nature similar to those hereinabove described in this
clause (x) which do not, in the opinion of the Company, materially
impair the use of such property in the operation of the business of the Company
or a Restricted Subsidiary or the value of such property for the purposes of
such business;
(xi) any transaction characterized as a
sale of receivables (retail or wholesale) but reflected as secured indebtedness
on a balance sheet in conformity with generally accepted accounting principles
then in effect;
(xii) mortgages on Margin Stock owned by the
Company and its Restricted Subsidiaries to the extent such Margin Stock so
mortgaged exceeds 25% of the fair market value of the sum of the Important
Property of the Company and the Restricted Subsidiaries plus the shares of
stock (including Margin Stock) and indebtedness issued or incurred by the
Restricted Subsidiaries; and
(xiii) mortgages on any Important Property of,
or any shares of stock or indebtedness issued or incurred by, any Restricted
Subsidiary organized under the laws of Canada.
(b) The provisions of
paragraph (a) of this Section 1006 shall not apply to the
issuance, incurrence, assumption or guarantee by the Company or any Restricted
Subsidiary of Debt secured by a mortgage which would otherwise be subject to
the foregoing restrictions up to an aggregate amount which, together with all
other Debt of the Company and its Restricted Subsidiaries that is secured by
mortgages (other than mortgages permitted by paragraph (a) of this Section 1006)
and would otherwise be subject to the foregoing restrictions and the
Attributable Debt in respect of Sale and Lease-back Transactions (as defined in
Section 1007) in existence at such time (other than Sale and Lease-back
Transactions which, if the Attributable Debt in respect of such Sale and
Lease-back had been a mortgage, would have been permitted by subdivision (i) of
paragraph (a) of this Section 1006 and other Sale and Lease-back
Transactions the proceeds of which have been applied or committed to be applied
in accordance with paragraph (b) or (c) of Section 1007)
does not at the time exceed 5% of Consolidated Net Tangible Assets, as shown on
the audited consolidated balance sheet contained in the latest annual report to
stockholders of the Company.
The term “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
65
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.
The term “Consolidated Net Tangible Assets”
shall mean the aggregate amount of assets (less applicable reserves and other
items properly deductible in accordance with U.S. generally accepted accounting
principles) of the Company and of its consolidated Subsidiaries after deducting
therefrom (a) all current liabilities (excluding any constituting funded
debt, as defined in Section 1007, by reason of their being renewable or
extendable) and (b) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles.
The term “Important Property” shall mean (i) any
manufacturing plant, including land, all buildings and other improvements
thereon, and all manufacturing machinery and equipment located therein, used by
the Company or a Restricted Subsidiary primarily for the manufacture of
products to be sold by the Company or such Restricted Subsidiary, (ii) the
executive office and administrative building of the Company in Moline,
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 “Restricted Subsidiary” shall mean any
Subsidiary (i) engaged in, or whose principal assets consist of property
used by the Company or any Restricted Subsidiary in, the manufacture of
products within the United States of America or Canada, or in the sale of
products principally to customers located in the United States of America or
Canada except any corporation which is a retail dealer in which the Company
has, directly or indirectly, an investment under an arrangement providing for
the liquidation of such investment, or (ii) which the Company shall
designate as a Restricted Subsidiary in an Officers’ Certificate delivered to
the Trustee.
(c) If, upon any
consolidation or merger of any Restricted Subsidiary with or into any other
corporation, or upon any consolidation or merger of any other corporation with
or into the Company or any Restricted Subsidiary or upon any sale or conveyance
of the property of any Restricted Subsidiary as an entirety or substantially as
an entirety to any other Person, or upon any acquisition by the Company or any
Restricted Subsidiary by purchase or otherwise of all or any part of the
property of any other Person, any Important Property theretofore owned by the
Company or such Restricted Subsidiary would thereupon become subject to any
mortgage not permitted by the terms of paragraph (a) or (b) of
this Section 1006, the Company, prior to such consolidation, merger, sale
or conveyance, or acquisition, will, or will cause such Restricted Subsidiary
to, secure payment of the principal of and interest on the Securities (equally
and ratably with or prior to any other indebtedness of the Company or such
Subsidiary then entitled thereto) by a direct lien on all such property prior
to all liens other than any liens theretofore existing thereon by supplemental
indenture hereto or otherwise.
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(d) If at any time the
Company or any Restricted Subsidiary shall issue, incur, assume or guarantee
any Debt secured by any mortgage not permitted by this Section 1006, to
which the covenant in paragraph (a) of this Section 1006 is
applicable, the Company will promptly deliver to the Trustee
(i) an Officers’ Certificate stating
that the covenant of the Company contained in paragraph (a) or (c) of
this Section 1006 has been complied with; and
(ii) an Opinion of Counsel to the effect
that such covenant has been complied with, and that any instruments executed by
the Company in the performance of such covenant comply with the requirements of
such covenant.
In the event that the Company shall hereafter secure
the Securities equally and ratably with or prior to any other obligation or
indebtedness pursuant to the provisions of this Section 1006, the Trustee
is hereby authorized to enter into an indenture or agreement supplemental
hereto and to take such action, if any, as it may deem advisable to enable it
to enforce effectively the rights of the holders of the Securities so secured,
equally and ratably with or prior to such other obligations or indebtedness.
SECTION 1007. Limitation
on Sale and Lease-back Transactions. The Company will not, nor
will it permit any Restricted Subsidiary to, enter into any arrangement with
any Person providing for the leasing to the Company or any Restricted
Subsidiary of any Important Property owned or hereafter acquired by the Company
or such Restricted Subsidiary (except for temporary leases for a term,
including any renewal thereof, of not more than three years and except for
leases between the Company and a Restricted Subsidiary or between Restricted
Subsidiaries), which Important Property has been or is to be sold or
transferred by the Company or such Restricted Subsidiary to such Person (herein
referred to as a “Sale and Lease-back Transaction”) unless the net proceeds of
such sale are at least equal to the fair value (as determined by the Board of
Directors) of such property and either (a) the Company or such Restricted
Subsidiary would be entitled, pursuant to the provisions of (1) clause (i) of
paragraph (a) of Section 1006 or (2) paragraph (b) of
Section 1006 hereof, to incur Debt secured by a mortgage on the Important
Property to be leased without equally and ratably securing the Securities, or (b) the
Company shall, and in any such case the Company covenants that it will, within
120 days of the effective date of any such arrangement, apply an amount
equal to the fair value (as so determined) of such property to the redemption
pursuant to Section 1101 hereof or the purchase and retirement of
Securities or to the payment or other retirement of funded debt for money
borrowed, incurred or assumed by the Company which ranks senior to or pari
passu with the Securities or of funded debt for money borrowed, incurred or
assumed by any Restricted Subsidiary (other than, in either case, funded debt
owned by the Company or any Restricted Subsidiary), or (c) the Company
shall, at or prior to the time of entering into the Sale and Lease-back
Transaction, enter into a bona fide commitment or commitments to expend for the
acquisition or improvement of an Important Property an amount at least equal to
the fair value (as so determined) of such property. For this purpose, funded
debt means any Debt 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.
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SECTION 1008. Waiver of Certain Covenants. The Company may omit in any particular
instance to comply with any term, provision or condition set forth in
Sections 1006, 1007 and, as specified pursuant to Section 301(15) for
Securities of any series, in any covenants of the Company added to Article Ten
pursuant to Section 301(14) or Section 301(15) in connection with
Securities of a series, if before or after the time for such compliance the
Holders of at least a majority in principal amount of all outstanding
Securities, by Act of such Holders, waive such compliance in such instance or
generally waive compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision or condition except to
the extent so expressly waived, and, until such waiver shall become effective,
the obligations of the Company and the duties of the Trustee in respect of any
such term, provision or condition shall remain in full force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article. Securities of any series which are redeemable
before their Stated Maturity shall be redeemable in accordance with their terms
and (except as otherwise specified as contemplated by Section 301 for
Securities of any series) in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee. The election of the Company to redeem any
Securities shall be evidenced by or pursuant to a Board Resolution. In case of any redemption at the election of
the Company of less than all of the Securities of any series, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date and of the principal amount of
Securities of such series to be redeemed.
In the case of any redemption of Securities prior to the expiration of
any restriction on such redemption provided in the terms of such Securities or
elsewhere in this Indenture, the Company shall furnish the Trustee with an
Officers’ Certificate evidencing compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series
issued on the same day with the same terms are to be redeemed, the particular
Securities to be redeemed shall be selected not more than 60 days prior to
the Redemption Date by the Trustee, from the Outstanding Securities of such
series issued on such date with the same terms not previously called for
redemption, by such method as the Trustee shall deem fair and appropriate and
which may provide for the 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
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redeemed
or to be redeemed only in part, to the portion of the principal amount of such
Security which has been or is to be redeemed.
SECTION 1104. Notice of Redemption. Notice of redemption shall be given in the
manner provided in Section 106, not less than 30 days nor more than
60 days prior to the Redemption Date, unless a shorter period is specified
by the terms of such series established pursuant to Section 301, to each
Holder of Securities to be redeemed, but failure to give such notice in the
manner herein provided to the Holder of any Security designated for redemption
as a whole or in part, or any defect in the notice to any such Holder, shall
not affect the validity of the proceedings for the redemption of any other such
Security or portion thereof.
Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
(1) the
Redemption Date,
(2) the
Redemption Price and accrued interest, if any, to the Redemption Date payable
as provided in Section 1106,
(3) if
less than all Outstanding Securities of any series are to be redeemed, the
identification (and, in the case of partial redemption, the principal amount)
of the particular Security or Securities to be redeemed,
(4) in
case any Security is to be redeemed in part only, the notice which relates to
such Security shall state that on and after the Redemption Date, upon surrender
of such Security, the Holder will receive, without a charge, a new Security or
Securities of the same series 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,
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(9) if
Bearer Securities of any series are to be redeemed and any Registered
Securities of such series are not to be redeemed, and if such Bearer Securities
may be exchanged for Registered Securities not subject to redemption on this
Redemption Date pursuant to Section 305 or otherwise, the last date, as determined
by the Company, on which such exchanges may be made, and
(10) the
CUSIP, ISIN, or such similar number of such Security, if any.
Notice of redemption of Securities to be redeemed
shall be given by the Company or, at the Company’s request, by the Trustee in
the name and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price. On or prior to any Redemption Date, the
Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, which it may not do in the case of a
sinking fund payment under Article Twelve, segregate and hold in trust as
provided in Section 1003) an amount of money in the Currency in which the
Securities of such series are payable (except as otherwise specified pursuant
to Section 301 for the Securities of such series and except, if
applicable, as provided in Sections 312(b), 312(d) and 312(e))
sufficient to pay on the Redemption Date the Redemption Price of, and (except
if the Redemption Date shall be an Interest Payment Date) accrued interest on,
all the Securities or portions thereof which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date. Notice of redemption having been given as
aforesaid, the Securities so to be redeemed shall, on the Redemption Date,
become due and payable at the Redemption Price therein specified in the
Currency in which the Securities of such series are payable (except as
otherwise specified pursuant to Section 301 for the Securities of such
series and except, if applicable, as provided in Sections 312(b), 312(d) and
312(e)) (together with accrued interest, if any, to the Redemption Date), and
from and after such date (unless the Company shall default in the payment of
the Redemption Price and accrued interest, if any) such Securities shall if the
same were interest-bearing cease to bear interest and the coupons for such
interest appertaining to any Bearer Securities so to be redeemed, except to the
extent provided below, shall be void.
Upon surrender of any such Security for redemption in accordance with
said notice, together with all coupons, if any, appertaining thereto maturing
after the Redemption Date, such Security shall be paid by the Company at the
Redemption Price, together with accrued interest, if any, to the Redemption
Date; provided, however, that installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except
as otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of
coupons for such interest, and provided further that
installments of interest on Registered Securities whose Stated Maturity is on
or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular 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
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coupons,
or the surrender of such missing coupon or coupons may be waived by the Company
and the Trustee if there be furnished to them such security or indemnity as
they may require to save each of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted; provided, however,
that interest represented by coupons shall be payable only at an office or
agency located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
If any Security called for redemption shall not be so
paid upon surrender thereof for redemption, the Redemption Price shall, until
paid, bear interest from the Redemption Date at the rate of interest set forth
in such Security or, in the case of an Original Issue Discount Security, at the
Yield to Maturity of such Security.
SECTION 1107. Securities Redeemed in Part. Any Registered Security which is to be
redeemed only in part (pursuant to the provisions of this Article or
of Article Twelve) shall be surrendered at a Place of Payment therefor
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or his attorney duly authorized in
writing) and the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security without service charge a new Security or
Securities of the same series, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Security so surrendered. However, if less than all the Securities of
any series with differing issue dates, interest rates and stated maturities are
to be redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date.
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article. The provisions of this Article shall be
applicable to any sinking fund for the retirement of Securities of a series
except as otherwise specified as contemplated by Section 301 for
Securities of such series.
The minimum amount of any sinking fund payment
provided for by the terms of Securities of any series is herein referred to as
a “mandatory sinking fund payment”, and any payment in excess of such minimum
amount provided for by the terms of such Securities of any series is herein
referred to as an “optional sinking fund payment”. If provided for by the terms of any
Securities of any series, the cash amount of any mandatory sinking fund payment
may be subject to reduction as provided in Section 1202. Each sinking fund payment shall be applied to
the redemption of Securities of any series as provided for by the terms of
Securities of such series.
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SECTION 1202. Satisfaction of Sinking Fund Payments with Securities.
The Company may, in
satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of a series, (1) deliver Outstanding Securities
of such series (other than any previously called for redemption) together
in the case of any Bearer Securities of such series with all unmatured coupons
appertaining thereto and (2) apply as a credit Securities of such series
which have been redeemed either at the election of the Company pursuant to the
terms of such Securities or through the application of permitted optional
sinking fund payments pursuant to the terms of such Securities, as provided for
by the terms of such Securities; provided that such Securities so
delivered or applied as a credit have not been previously so credited. Such Securities shall be received and
credited for such purpose by the Trustee at the applicable Redemption Price
specified in such Securities for redemption through operation of the sinking
fund and the amount of such mandatory sinking fund payment shall be reduced
accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund. Not less than 60 days prior to each
sinking fund payment date for Securities of any series, the Company will
deliver to the Trustee an Officers’ Certificate specifying the amount of the
next ensuing mandatory sinking fund payment for that series pursuant to the
terms of that series, the portion thereof, if any, which is to be satisfied by
payment of cash in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) and the portion thereof, if any,
which is to be satisfied by delivering and crediting Securities of that series
pursuant to Section 1202, and the optional amount, if any, to be added in
cash to the next ensuing mandatory sinking fund payment, and will also deliver
to the Trustee any Securities to be so delivered and credited. If such Officers’ Certificate shall specify
an optional amount to be added in cash to the next ensuing mandatory sinking
fund payment, the Company shall thereupon be obligated to pay the amount
therein specified. Not less than
30 days before each such sinking fund payment date the Trustee shall
select the Securities to be redeemed upon such sinking fund payment date in the
manner specified in Section 1103 and cause notice of the redemption
thereof to be given in the name of and at the expense of the Company in the
manner provided in Section 1104.
Such notice having been duly given, the redemption of such Securities
shall be made upon the terms and in the manner stated in Sections 1106 and
1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article. Repayment of Securities of any series before
their Stated Maturity at the option of Holders thereof shall be made in
accordance with the terms of such Securities and (except as otherwise specified
by the terms of such series established pursuant to Section 301) in
accordance with this Article.
SECTION 1302. Repayment of Securities. Securities of any series subject to repayment
in whole or in part at the option of the Holders thereof will, unless otherwise
provided in the terms of such Securities, be repaid at the Repayment Price
thereof, together with interest, if any, thereon accrued to the Repayment Date
specified in or pursuant to the terms of such Securities. The Company covenants that on or before the
Repayment Date it will deposit
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with the Trustee or with a Paying Agent (or, if the Company is acting
as its own Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in
Sections 312(b), 312(d) and 312(e)) sufficient to pay the Repayment
Price of, and (except if the Repayment Date shall be an Interest Payment Date)
accrued interest on, all the Securities or portions thereof, as the case may
be, to be repaid on such date.
SECTION 1303. Exercise of Option. Securities of any series subject to repayment
at the option of the Holders thereof will contain an “Option to Elect Repayment”
form on the reverse of such Securities.
To be repaid at the option of the Holder, except as otherwise specified
as contemplated by Section 301 for Securities of such series, 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.
The Holder must also send the Paying Agent a facsimile or letter from a
member of a national securities exchange or the Financial Industry Regulatory
Authority or a commercial bank or trust company in the United States describing
the particulars of the repayment, including a guarantee that the Security and
the “Option to Elect Repayment” form will be received by the Paying Agent no
later than five Business Days after such facsimile or letter. If less than the entire Repayment Price of
such Security is to be repaid in accordance with the terms of such Security,
the portion of the Repayment Price of such Security to be repaid, in increments
of the minimum denomination for Securities of such series, and the denomination
or denominations of the Security or Securities to be issued to the Holder for
the portion of such Security surrendered that is not to be repaid, must be
specified. Any Security providing for
repayment at the option of the Holder thereof may not be repaid in part if,
following such repayment, the unpaid principal amount of such Security would be
less than the minimum authorized denomination of Securities of the series of
which such Security to be repaid is a part.
Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
Payable. If Securities of any
series providing for repayment at the option of the Holders thereof shall have
been surrendered as provided in this Article and as provided by or
pursuant to the terms of such Securities, such Securities or the portions
thereof, as the case may be, to be repaid shall become due and payable and
shall be paid by the Company on the Repayment Date therein specified, and on
and after such Repayment Date (unless the Company shall default in the payment
of such Securities on such Repayment Date) such Securities shall, if the same
were interest-bearing, cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be repaid, except to the extent
provided below, shall be void. Upon
surrender of any such Security for repayment in accordance with such
provisions, together with all coupons, if any, appertaining thereto maturing
after the Repayment Date, the Repayment Price of such Security so to be repaid
shall be paid by the Company, together with accrued interest, if any, to the
Repayment Date; provided, however, that coupons whose Stated
Maturity is on or prior to the Repayment Date shall be payable only at an
office or agency located outside the United States (except as otherwise
provided in Section 1002) and, unless otherwise specified pursuant to Section 301,
only upon presentation and surrender of such coupons; and provided further
that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repayment Date shall be payable
(but without interest thereon, unless the Company shall default in the payment
thereof) to the Holders of such Securities, or
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one or more Predecessor Securities, registered as such at the close of
business on the relevant Regular Record Dates according to their terms and the
provisions of Section 307.
If any Bearer Security surrendered for repayment shall
not be accompanied by all appurtenant coupons maturing after the Repayment
Date, such Security may be paid after deducting from the amount payable
therefor as provided in Section 1302 an amount equal to the face amount of
all such missing coupons, or the surrender of such missing coupon or coupons
may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying
Agent harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made as provided
in the preceding sentence, such Holder shall be entitled to receive the amount
so deducted; provided, however, that interest represented by
coupons shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless
otherwise specified as contemplated by Section 301, only upon presentation
and surrender of those coupons.
If any Security surrendered for repayment shall not be
so repaid upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
Security or, in the case of an Original Issue Discount Security, at the Yield
to Maturity of such Security.
SECTION 1305. Securities Repaid in Part. Upon surrender of any Registered Security
which is to be repaid in part only, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder of such Security, without service
charge and at the expense of the Company, a new Registered Security or
Securities of the same series, of any authorized denomination specified by the
Holder, in an aggregate principal amount equal to and in exchange for the
portion of the principal of such Security so surrendered which is not to be
repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company’s Option to Effect
Defeasance or Covenant Defeasance.
If pursuant to Section 301 provision is made for either or both of (a) defeasance
of the Securities of or within a series under Section 1402 or (b) covenant
defeasance of the Securities of or within a series under Section 1403,
then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such
modifications thereto as may be specified pursuant to Section 301 with
respect to any Securities), shall be applicable to such Securities and any coupons
appertaining thereto, and the Company may at its option by Board Resolution, at
any time, with respect to such Securities and any coupons appertaining thereto,
elect to have Section 1402 (if applicable) or Section 1403 (if
applicable) be applied to such Outstanding Securities and any coupons
appertaining thereto upon compliance with the conditions set forth below in
this Article.
SECTION 1402. Defeasance and Discharge. Upon the Company’s exercise of the above
option applicable to this Section with respect to any Securities of or
within a series,
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the Company shall be deemed to have been discharged from its
obligations with respect to such Outstanding Securities and any coupons
appertaining thereto on the date the conditions set forth in Section 1404
are satisfied (hereinafter, “defeasance”).
For this purpose, such defeasance means that the Company shall be deemed
to have paid and discharged the entire indebtedness represented by such
Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be “Outstanding” only for the purposes of Section 1405
and the other Sections of this Indenture referred to in clauses (A) and
(B) of this Section, and to have satisfied all its other obligations under
such Securities and any coupons appertaining thereto and this Indenture insofar
as such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder:
(A) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described
in Section 1404 and as more fully set forth in such Section, payments in
respect of the principal of (and premium, if any) and interest, if any, on such
Securities and any coupons appertaining thereto when such payments are due, (B) the
Company’s obligations with respect to such Securities under Sections 305,
306, 1002 and 1003 and with respect to the payment of Additional Amounts, if
any, on such Securities as contemplated by Section 1004, (C) the
rights, powers, trusts, duties and immunities of the Trustee hereunder and (D) this
Article. Subject to compliance with this
Article Fourteen, the Company may exercise its option under this Section notwithstanding
the prior exercise of its option under Section 1403 with respect to such
Securities and any coupons appertaining thereto. Money and securities held in trust pursuant
to this Section 1402 shall not be subject to Article Sixteen.
SECTION 1403. Covenant
Defeasance. Upon the Company’s
exercise of the above option applicable to this Section with respect to
any Securities of or within a series, the Company shall be released from its
obligations under Sections 1006 and 1007, and, if specified pursuant to Section 301,
its obligations under any additional covenant other than Section 1001, with respect
to such Outstanding Securities and any coupons appertaining thereto on and
after the date the conditions set forth in Section 1404 are satisfied
(hereinafter, “covenant defeasance”), and such Securities and any coupons
appertaining thereto shall thereafter be deemed to be not “Outstanding” for the
purposes of any direction, waiver, consent or declaration or Act of Holders
(and the consequences of any thereof) in connection with Sections 1006 and
1007, or such other covenant, but shall continue to be deemed “Outstanding” for
all other purposes hereunder. For this
purpose, such covenant defeasance means that, with respect to such Outstanding
Securities and any coupons appertaining thereto, the Company may omit to comply
with and shall have no liability in respect of any term, condition or
limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such
Section or such other covenant or by reason of reference in any such Section or
such other covenant to any other provision herein or in any other document and
such omission to comply shall not constitute a Default or an Event of Default
under Section 501(4) or 501(7) or otherwise, as the case may be,
but, except as specified above, the remainder of this Indenture and such
Securities and any coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to
application of Section 1402 or Section 1403 to any Outstanding
Securities of or within a series and any coupons appertaining thereto:
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(a) The
Company shall irrevocably have deposited or caused to be deposited with the
Trustee (or another trustee satisfying the requirements of Section 608 who
shall agree to comply with the provisions of this Article Fourteen
applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount (in such Currency in which such Securities and any
coupons appertaining thereto are then specified as payable at Stated Maturity),
or (2) Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the Currency in which such
Securities and coupons appertaining thereto are then specified as payable at
Stated Maturity) which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium, if
any) and interest, if any, on such Securities and any coupons appertaining
thereto, money in an amount, or (3) a combination thereof in an amount,
sufficient, in the opinion of a nationally recognized firm of independent
public accountants expressed in a written certification thereof delivered to the
Trustee, to pay and discharge, and which shall be applied by the Trustee (or
other qualifying trustee) to pay and discharge, (i) the principal of (and
premium, if any) and interest, if any, on such Outstanding Securities and any
coupons appertaining thereto on the Stated Maturity of such principal or
installment of principal or interest and (ii) any mandatory sinking fund
payments or analogous payments applicable to such Outstanding Securities and
any coupons appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities
and any coupons appertaining thereto.
(b) Such
defeasance or covenant defeasance shall not result in a breach or violation of,
or constitute a default under, this Indenture or any other material agreement
or instrument to which the Company is a party or by which it is bound.
(c) No
Default or Event of Default with respect to such Securities and any coupons
appertaining thereto shall have occurred and be continuing on the date of such
deposit or, insofar as Sections 501(5) and 501(6) are concerned,
at any time during the period ending on the 91st day after the date of such
deposit (it being understood that this condition shall not be deemed satisfied
until the expiration of such period).
(d) In
the case of an election under Section 1402, the Company shall have
delivered to the Trustee an Opinion of Counsel stating that (i) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (ii) since the date of execution of this Indenture,
there has been a change in the applicable Federal income tax law, in either
case to the effect that, and based thereon such opinion shall confirm that, the
Holders of such Outstanding Securities and any coupons appertaining thereto
will not recognize income, gain or loss for U.S. federal income tax purposes as
a result of such defeasance and will be subject to U.S. federal income tax on
the same amounts, in the same manner and at the same times as would have been
the case if such defeasance had not occurred.
(e) In
the case of an election under Section 1403, the Company shall have
delivered to the Trustee an Opinion of Counsel to the effect that the Holders
of such
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Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for U.S. federal
income tax purposes as a result of such covenant defeasance and will be subject
to U.S. federal income tax on the same amounts, in the same manner and at the
same times as would have been the case if such covenant defeasance had not
occurred.
(f) The
Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent to the
defeasance under Section 1402 or the covenant defeasance under Section 1403
(as the case may be) have been complied with and an Opinion of Counsel to the
effect that either (i) as a result of a deposit pursuant to subsection (a) above
and the related exercise of the Company’s option under Section 1402 or Section 1403
(as the case may be), registration is not required under the Investment Company
Act of 1940, as amended, by the Company, with respect to the trust funds representing
such deposit or by the trustee for such trust funds or (ii) all necessary
registrations under said Act have been effected.
(g) The
Company shall have delivered to the Trustee an Officer’s Certificate stating
that such Outstanding Securities, if then listed on any securities exchange,
will not 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 in connection
therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last
paragraph of Section 1003, all money and Government Obligations (or other
property as may be provided pursuant to Section 301) (including the
proceeds thereof) deposited with the Trustee (or other qualifying trustee,
collectively for purposes of this Section 1405, the “Trustee”) pursuant to
Section 1404 in respect of any Outstanding Securities of any series and
any coupons appertaining thereto shall be held in trust and applied by the
Trustee, in accordance with the provisions of such Securities and any coupons
appertaining thereto and this Indenture, to the payment, either directly or
through any Paying Agent (including the Company acting as its own Paying Agent)
as the Trustee may determine, to the Holders of such Securities and any coupons
appertaining thereto of all sums due and to become due thereon in respect of
principal (and premium, if any) and interest, if any, but such money need not
be segregated from other funds except to the extent required by law.
Unless otherwise specified with respect to any
Security pursuant to Section 301, if, after a deposit referred to in Section 1404(a) has
been made, (a) the Holder of a Security in respect of which such deposit
was made is entitled to, and does, elect pursuant to Section 312(b) or
the terms of such Security to receive payment in a Currency other than that in
which the deposit pursuant to Section 1404(a) has been made in
respect of such Security, or (b) a Conversion Event occurs as contemplated
in Section 312(d) or 312(e) or by the terms of any Security in
respect of which the deposit pursuant to Section 1404(a) has been
made, the indebtedness represented by such Security and any coupons
appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and premium,
if any) and interest, if any, on such Security as the same becomes due out of
the proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of
such Security into the Currency in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable Market
Exchange Rate for such Currency in effect on the second Business Day
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prior
to each payment date, except, with respect to a Conversion Event, for such
Currency in effect (as nearly as feasible) at the time of the Conversion Event.
The Company shall pay and indemnify the Trustee
against any tax, fee or other charge imposed on or assessed against the
Government Obligations deposited pursuant to Section 1404 or the principal
and interest received in respect thereof other than any such tax, fee or other
charge which by law is for the account of the Holders of such Outstanding
Securities and any coupons appertaining thereto.
Anything in this Article to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other
property and any proceeds therefrom) held by it as provided in Section 1404
which, in the opinion of a nationally recognized firm of independent public
accountants expressed in a written certification thereof delivered to the
Trustee, are in excess of the amount thereof which would then be required to be
deposited to effect a defeasance or covenant defeasance, as applicable, in
accordance with this Article.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called. If Securities of a series are issuable as
Bearer Securities, a meeting of Holders of Securities of such series may be
called at any time and from time to time pursuant to this Article to make,
give or take any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be made, given or taken by
Holders of Securities of such series.
SECTION 1502. Call, Notice and Place of Meetings. (a) The Trustee may at any time call a
meeting of Holders of Securities of any series for any purpose specified in Section 1501,
to be held at such time and at such place in the Borough of Manhattan, The City
of New York or in London as the Trustee shall determine. Notice of every meeting of Holders of
Securities of any series, setting forth the time and the place of such meeting
and in general terms the action proposed to be taken at such meeting, shall be
given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In
case at any time the Company, pursuant to a Board Resolution, or the Holders of
at least 10% in principal amount of the Outstanding Securities of any series
shall have requested the Trustee to call a meeting of the Holders of Securities
of such series for any purpose specified in Section 1501, by written
request setting forth in reasonable detail the action proposed to be taken at
the meeting, and the Trustee shall not have made the first publication of the
notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided
herein, then the Company or the Holders of Securities of such series in the
amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York or in London for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in subsection (a) of this Section.
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SECTION 1503. Persons Entitled to Vote at Meetings. To be entitled to vote at any meeting of
Holders of Securities of any series, a Person shall be (1) a Holder of one
or more Outstanding Securities of such series, or (2) a Person appointed
by an instrument in writing as proxy for a Holder or Holders of one or more
Outstanding Securities of such series by such Holder or Holders. The only Persons who shall be entitled to be
present or to speak at any meeting of Holders of Securities of any series shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 1504. Quorum; Action. The Persons entitled to vote a majority in
principal amount of the Outstanding Securities of a series shall constitute a
quorum for a meeting of Holders of Securities of such series; provided, however,
that if any action is to be taken at such meeting with respect to a consent or
waiver which this Indenture expressly provides may be given by the Holders of
not less than a specified percentage in principal amount of the Outstanding
Securities of a series, the Persons entitled to vote such specified percentage
in principal amount of the Outstanding Securities of such series shall
constitute a quorum. In the absence of a
quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case
the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at
any such adjourned meeting, such adjourned meeting may be further adjourned for
a period of not less than 10 days as determined by the chairman of the
meeting prior to the adjournment of such adjourned meeting. Notice of the reconvening of any adjourned meeting
shall be given as provided in Section 1502(a), except that such notice
need be given only once not less than five days prior to the date on which
the meeting is scheduled to be reconvened.
Notice of the reconvening of any adjourned meeting shall state expressly
the percentage, as provided above, of the principal amount of the Outstanding
Securities of such series which shall constitute a quorum.
Except as limited by the proviso to Section 902,
any resolution presented to a meeting or adjourned meeting duly reconvened at
which a quorum is present as aforesaid may be adopted by the affirmative vote
of the Holders of a majority in principal amount of the Outstanding Securities
of that series; provided, however, that, except as limited by the
proviso to Section 902, any resolution with respect to any request,
demand, authorization, direction, notice, consent, waiver or other action which
this Indenture expressly provides may be made, given or taken by the Holders of
a specified percentage, which is less than a majority, in principal amount of
the Outstanding Securities of a series may be adopted at a meeting or an
adjourned meeting duly reconvened and at which a quorum is present as aforesaid
by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Securities of that series.
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.
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Notwithstanding
the foregoing provisions of this Section 1504, if any action is to be
taken at a meeting of Holders of Securities of any series with respect to any
request, demand, authorization, direction, notice, consent, waiver or other
action that this Indenture expressly provides may be made, given or taken by
the Holders of a specified percentage in principal amount of all Outstanding
Securities affected thereby, or of the Holders of such series and one or more
additional series:
(i) there shall be no
minimum quorum requirement for such meeting; and
(ii) the principal amount
of the Outstanding Securities of such series that vote in favor of such
request, demand, authorization, direction, notice, consent, waiver or other
action shall be taken into account in determining whether such request, demand,
authorization, direction, notice, consent, waiver or other action has been
made, given or taken under this Indenture.
SECTION 1505. Determination
of Voting Rights; Conduct and Adjournment of Meetings. (a)
Notwithstanding any provisions of this Indenture, the Trustee may make such
reasonable regulations as it may deem advisable for any meeting of Holders of
Securities of a series in regard to proof of the holding of Securities of such
series and of the appointment of proxies and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall deem appropriate. Except as otherwise permitted or required by
any such regulations, the holding of Securities shall be proved in the manner
specified in Section 104 and the appointment of any proxy shall be proved
in the manner specified in Section 104 or by having the signature of the
Person executing the proxy witnessed or guaranteed by any trust company, bank
or banker authorized by Section 104 to certify to the holding of Bearer
Securities. Such regulations may provide
that written instruments appointing proxies, regular on their face, may be
presumed valid and genuine without the proof specified in Section 104 or
other proof.
(b) The
Trustee shall, by an instrument in writing appoint a temporary chairman of the
meeting, unless the meeting shall have been called by the Company or by Holders
of Securities as provided in Section 1502(b), in which case the Company or
the Holders of Securities of the series calling the meeting, as the case may
be, shall in like manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the Persons entitled to
vote a majority in principal amount of the Outstanding Securities of such
series represented at the meeting.
(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
80
entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at
the meeting, and the meeting may be held as so adjourned without further
notice.
SECTION 1506. Counting
Votes and Recording Action of Meetings. The vote upon
any resolution submitted to any meeting of Holders of Securities of any series
shall be by written ballots on which shall be subscribed the signatures of the
Holders of Securities of such series or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities of such
series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in duplicate, of the
proceedings of each meeting of Holders of Securities of any Series shall
be prepared by the secretary of the meeting and there shall be attached to said
record the original reports of the inspectors of votes on any vote by ballot
taken thereat and affidavits by one or more persons having knowledge of the
fact, setting forth a copy of the notice of the meeting and showing that said
notice was given as provided in Section 1502 and, if applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and
verified shall be conclusive evidence of the matters therein stated.
SECTION 1507. Action
Without Meeting. In lieu of a vote of Holders at a meeting as
hereinbefore contemplated in this Article, any request, demand, authorization,
direction, notice, consent, waiver or other action may be made, given or taken
by Holders by written instruments as provided in Section 104.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
SECTION 1601. Agreement
to Subordinate. In the event a series of Securities is
designated as subordinated pursuant to Section 301 and except as otherwise
provided pursuant to Section 301, the Company, for itself, its successors
and assigns, covenants and agrees, and each Holder of Securities by his
acceptance thereof, likewise covenants and agrees, that the payment of the
principal of (and premium, if any) and interest, if any, on each and all of the
Securities designated as “Subordinated Securities” is hereby expressly
subordinated, to the extent and in the manner hereinafter set forth, in right
of payment to the prior payment in full of all Senior Indebtedness.
SECTION 1602. Distribution
on Dissolution, Liquidation and Reorganization; Subrogation of Securities. Upon any distribution of assets of the Company upon any dissolution,
winding up, liquidation or reorganization of the Company, whether in
bankruptcy, insolvency, reorganization or receivership proceedings or upon an
assignment for the benefit of creditors or any other marshalling of the assets
and liabilities of the Company or otherwise (subject to the power of a court of
competent jurisdiction to make other equitable provision reflecting the rights
conferred in this Indenture upon the Senior Indebtedness and the holders
thereof with respect to the Subordinated Securities and the Holders thereof, by
a lawful plan of reorganization under applicable bankruptcy law):
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(a) the holders of all
Senior Indebtedness shall be entitled to receive payment in full of the
principal thereof (and premium, if any) and interest due thereon before the
Holders of the Subordinated Securities are entitled to receive any payment upon
the principal (or premium, if any) or interest, if any, on indebtedness
evidenced by the Subordinated Securities; and
(b) any payment or
distribution of assets of the Company of any kind or character, whether in
cash, property or securities, to which the Holders of the Subordinated
Securities or the Trustee would be entitled except for the provisions of this Article Sixteen
shall be paid by the liquidating trustee or agent or other Person making such
payment or distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the trustee or
trustees under any indenture under which any instruments evidencing any of such
Senior Indebtedness may have been issued, ratably according to the aggregate
amounts remaining unpaid on account of the principal of (and premium, if any)
and interest on the Senior Indebtedness held or represented by each, to the
extent necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(c) in the event that,
notwithstanding the foregoing, any payment or distribution of assets of the
Company of any kind or character, whether in cash, property or securities,
shall be received by the Trustee or the Holders of the Subordinated Securities
before all Senior Indebtedness is paid in full, such payment or distribution
shall be paid over, upon written notice to a Responsible Officer of the
Trustee, to the holder of such Senior Indebtedness or their representative or
representatives or to the trustee or trustees under any indenture under which
any instrument evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to payment of all Senior Indebtedness
remaining unpaid until all such Senior Indebtedness shall have been paid in
full, after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness.
Subject
to the payment in full of all Senior Indebtedness, the Holders of the
Subordinated Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest, if any, on the Subordinated Securities
shall be paid in full and no such payments or distributions to the Holders of the
Subordinated Securities of cash, property or securities otherwise distributable
to the holders of Senior Indebtedness shall, as between the Company, its
creditors other than the holders of Senior Indebtedness, and the Holders of the
Subordinated Securities be deemed to be a payment by the Company to or on
account of the Subordinated Securities.
It is understood that the provisions of this Article Sixteen are
and are intended solely for the purpose of defining the relative rights of the
Holders of the Subordinated Securities, on the one hand, and the holders of the
Senior Indebtedness, on the other hand.
Nothing contained in this Article Sixteen or elsewhere in this
Indenture or in the Subordinated Securities is intended to or shall impair, as
between the Company, its creditors other than the holders of Senior
Indebtedness, and the Holders of the Subordinated Securities, the obligation of
the Company, which is unconditional and absolute, to
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pay to the Holders of the Subordinated Securities the
principal of (and premium, if any) and interest, if any, on the Subordinated
Securities as and when the same shall become due and payable in accordance with
their terms, or to affect the relative rights of the Holders of the
Subordinated Securities and creditors of the Company other than the holders of
Senior Indebtedness, nor shall anything herein or in the Subordinated
Securities prevent the Trustee or the Holder of any Subordinated Security from
exercising all remedies otherwise permitted by applicable law upon default
under this Indenture, subject to the rights, if any, under this Article Sixteen
of the holders of Senior Indebtedness in respect of cash, property or
securities of the Company received upon the exercise of any such remedy.
The
Trustee, however, shall not be deemed to owe any fiduciary duty to the holders
of Senior Indebtedness. The Trustee
shall not be liable to any such holder if it shall pay over or distribute to or
on behalf of Holders of Subordinated Securities or the Company moneys or assets
to which any holder of Senior Indebtedness shall be entitled by virtue of this Article Sixteen.
If the
Trustee or any Holder of Subordinated Securities does not file a proper claim
or proof of debt in the form required in any proceeding referred to above prior
to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Indebtedness is hereby authorized,
and has the right, to file an appropriate claim or claims for or on behalf of
such Holder of Subordinated Securities.
With
respect to the holders of Senior Indebtedness, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or
obligations with respect to holders of Senior Indebtedness shall be read into
this Indenture against the Trustee.
SECTION 1603. No
Payment on Subordinated Securities in Event of Default on Senior
Indebtedness. No payment by the Company on account of
principal (and premium, if any), sinking funds or interest, if any, on the
Subordinated Securities shall be made unless full payment of amounts then due
for principal (and premium, if any), sinking funds and interest on Senior Indebtedness
has been made or duly provided for in money or money’s worth.
SECTION 1604. Payments
on Subordinated Securities Permitted. Nothing contained in this
Indenture or in any of the Securities shall (a) affect the obligation of
the Company to make, or prevent the Company from making, at any time except as
provided in Sections 1602 and 1603, payments of principal of (or premium,
if any) or interest, if any, on the Subordinated Securities or (b) prevent
the application by the Trustee of any moneys deposited with it hereunder to the
payment of or on account of the principal of (or premium, if any) or interest,
if any, on the Subordinated Securities, unless a Responsible Officer of the
Trustee shall
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have received at its Corporate Trust Office
written notice of any event prohibiting the making of such payment more than
two Business Days prior to the date fixed for such payment.
SECTION 1605. Authorization
of Holders to Trustee to Effect Subordination.
Each Holder
of Subordinated Securities by his acceptance thereof authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination as provided in this Article Sixteen and
appoints the Trustee his attorney in fact for any and all such purposes.
SECTION 1606. Notices
to Trustee. Notwithstanding the provisions of this Article or
any other provisions of this Indenture, neither the Trustee nor any Paying
Agent (other than the Company) shall be charged with knowledge of the existence
of any Senior Indebtedness or of any event which would prohibit the making of
any payment of moneys to or by the Trustee or such Paying Agent, unless and
until a Responsible Officer of the Trustee or such Paying Agent shall have
received (in the case of the Trustee, at its Corporate Trust Office) written
notice thereof from the Company or from the holder of any Senior Indebtedness
or from the trustee for any such holder, together with proof satisfactory to
the Trustee of such holding of Senior Indebtedness or of the authority of such
trustee; provided, however, that if at least two Business Days prior to the
date upon which by the terms hereof any such moneys may become payable for any
purpose (including, without limitation, the payment of the principal (or
premium, if any) or interest, if any, on any Subordinated Security) the Trustee
shall not have received with respect to such moneys the notice provided for in
this Section 1606, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive
such moneys and to apply the same to the purpose for which they were received,
and shall not be affected by any notice to the contrary, which may be received
by it within two Business Days prior to such date. The Trustee shall be entitled to rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Indebtedness (or a trustee on behalf of such holder) to
establish that such a notice has been given by a holder of Senior Indebtedness
or a trustee on behalf of any such holder.
In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any Person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article Sixteen, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of
Senior Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article Sixteen and, if
such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
SECTION 1607. Trustee
as Holder of Senior Indebtedness. The Trustee in its
individual capacity shall be entitled to all the rights set forth in this Article Sixteen
in respect of any Senior Indebtedness at any time held by it to the same extent
as any other holder of Senior Indebtedness and nothing in Section 614 or
elsewhere in this Indenture shall be construed to deprive the Trustee of any of
its rights as such holder.
Nothing
in this Article Sixteen shall apply to claims of, or payments to, the
Trustee under or pursuant to Sections 506 and 607.
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SECTION 1608. Modifications
of Terms of Senior Indebtedness. Any renewal or extension
of the time of payment of any Senior Indebtedness or the exercise by the
holders of Senior Indebtedness of any of their rights under any instrument
creating or evidencing Senior Indebtedness, including, without limitation, the
waiver of default thereunder, may be made or done all without notice to or
assent from the Holders of the Subordinated Securities or the Trustee.
No
compromise, alteration, amendment, modification, extension, renewal or other
change of, or waiver, consent or other action in respect of, any liability or
obligation under or in respect of, or of any of the terms, covenants or
conditions of any indenture or other instrument under which any Senior
Indebtedness is outstanding or of such Senior Indebtedness, whether or not such
release is in accordance with the provisions of any applicable document, shall
in any way alter or affect any of the provisions of this Article Sixteen
or of the Subordinated Securities relating to the subordination thereof.
SECTION 1609. Reliance
on Judicial Order or Certificate of Liquidating Agent. Upon any payment or distribution of assets of the Company referred to in
this Article Sixteen, the Trustee and the Holders of the Subordinated
Securities shall be entitled to rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, custodian, receiver, assignee for the benefit of
creditors, agent or other person making such payment or distribution, delivered
to the Trustee or to the Holders of Subordinated Securities, for the purpose of
ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article Sixteen.
* *
* * *
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.
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IN
WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly
executed, and the corporate seal of the Company to be hereunto affixed, all as
of the day and year first above written.
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DEERE & COMPANY
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By:
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/s/ James A. Davlin
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[SEAL]
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Name:
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James A. Davlin
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Title:
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Vice President and
Treasurer
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THE BANK OF NEW YORK
MELLON,
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as
Trustee
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By:
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/s/ L. O’Brien
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Name:
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L. O’Brien
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Title:
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Vice President
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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 the income of which
is subject to United States Federal income taxation regardless of its source or
any trust if a court within the United States is able to exercise primary
supervision over the administration of the trust and one or more United States
persons have the authority to control all substantial decisions of the trust (“United
States person(s)”), (ii) are owned by United States person(s) that
are (a) foreign branches of United States financial institutions
(financial institutions, as defined in United States Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as “financial institutions”) purchasing for their own
account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such United
States financial institution hereby agrees, on its own behalf or through its
agent, that you may advise Deere & Company or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the United States Internal Revenue Code of 1986, as
amended, and the regulations thereunder), or (iii) are owned by United
States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)),
and, in addition, if the owner is a United States or foreign financial
institution described in clause (iii) above (whether or not also
described in clause (i) or (ii)), this is to further certify that
such financial institution has not acquired the Securities for purposes of
resale directly or indirectly to a United States person or to a person within
the United States or its possessions.
As
used herein, “United States” means the United States of America
(including the States and the District of Columbia); and its “possessions”
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We
undertake to advise you promptly by tested telex on or prior to the date on
which you intend to submit your certification relating to the above-captioned
Securities held by you for our account in accordance with your Operating
Procedures if any applicable statement herein is not correct on such date, and
in the absence of any such notification it may be assumed that this
certification applies as of such date.
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.
Exhibit A-1 - 2
Dated: ,
2008
[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]
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[Name
of Person Making Certification]
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(Authorized
Signatory)
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Name:
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Title:
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Exhibit A-1 - 3
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 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 the income of which is subject to United
States Federal income taxation regardless of its source or any trust if a court
within the United States is able to exercise primary supervision over the
administration of the trust and one or more United States persons have the
authority to control all substantial decisions of the trust (“United States
person(s)”), (ii) is owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as
defined in U.S. Treasury Regulations Section 1.165-12(c)(1)(v) are
herein referred to as “financial institutions”) purchasing for their own
account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions
and who hold the Securities through such United States financial institutions
on the date hereof (and in either case (a) or (b), each such financial
institution has agreed, on its own behalf or through its agent, that we may
advise Deere & Company or its agent that such financial institution
will comply with the requirements of Section 165(j)(3)(A), (B) or (C) of
the Internal Revenue Code of 1986, as amended, and the regulations thereunder),
or (iii) is owned by United States or foreign financial institution(s) for
purposes of resale during the restricted period (as defined in United States
Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to the further
effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified
that they have not acquired the Securities for purposes of resale directly or
indirectly to a United States person or to a person within the United States or
its possessions.
As
used herein, “United States” means the United States of America
(including the States and the District of Columbia); and its “possessions”
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We
further certify that (i) we are not making available herewith for exchange
(or, if relevant, collection of any interest) any portion of the temporary
global Security representing the above-captioned Securities excepted in the
above-referenced certificates of Member
Organizations
and (ii) as of the date hereof we have not received any notification from
any of our Member Organizations to the effect that the statements made by such
Member Organizations with respect to any portion of the part submitted herewith
for 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.
Exhibit A-2 - 2
Dated: ,
2008
[To be dated no earlier than the Exchange Date or the
relevant Interest Payment Date occurring prior to the
Exchange Date, as applicable]
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[EUROCLEAR
BANK S.A./N.V.]
[CLEARSTREAM BANKING, SOCIÉTÉ ANONYME]
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By
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Exhibit A-2 - 3