SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): February 15, 1999
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Chrysler Financial Company L.L.C.
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(Exact Name of Registrant as Specified in Charter)
Michigan 1-5966 52-2109803
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(State or Other (Commission (I.R.S. Employer
Jurisdiction of File Number) Identification No.)
Incorporation)
27777 Franklin Road, Southfield, MI 48034
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (248) 948-3067
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N/A
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(Former Name or Former Address, if Changed Since Last Report.)
Item 5. Other Events.
As of February 15, 1999, DaimlerChrysler AG, the ultimate parent of
Chrysler Financial Company L.L.C. (the "Company"), has unconditionally
and irrevocably guaranteed (the "Guarantee") punctual and full payment of
the entire principal of (and premium, if any) and interest, if any, on
all debt securities of the Company ("Debt Securities") that are the
subject of an (i) indenture, dated as of June 15, 1984, as supplemented
from time to time, by and between the Company and United States Trust
Company of New York, as successor trustee (the "Trustee") (the "1984
Indenture"), (ii) indenture, dated as of September 15, 1986, as
supplemented from time to time, by and between the Company and the
Trustee (the "1986 Indenture") and (iii) indenture, dated as of February
15, 1988, as supplemented from time to time, by and between the Company
and the Trustee (the "1988 Indenture" and, together with the 1984
Indenture and the 1986 Indenture, the "Indentures").
The Company has approximately $9,199,735,000 in aggregate principal
amount of Debt Securities outstanding that have been issued under the
Indentures and registered under registration statements (Reg. Nos.
33-64179 and 333-49647) filed by the Company and declared effective by
the Securities and Exchange Commission under the Securities Act of 1933.
In order to provide for the Guarantee of the Debt Securities, the
Company, the Trustee and DaimlerChrysler AG have entered into a (i) Fifth
Supplemental Indenture, dated as of February 15, 1999 to the 1984
Indenture, (ii) Second Supplemental Indenture, dated as of February 15,
1999 to the 1986 Indenture and (iii) Fifth Supplemental Indenture, dated
as of February 15, 1999 to the 1988 Indenture.
Item 7. Financial Statements, Pro Forma Financial Information and Exhibits.
(a) Not applicable.
(b) Not applicable.
(c) Exhibits. The following exhibits are filed as part of this
Current Report on Form 8-K:
Description Exhibit No.
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Fifth Supplemental Indenture by and among Chrysler 4.1
Financial Company L.L.C., DaimlerChrysler AG and United
States Trust Company of New York, as successor Trustee,
dated as of February 15, 1999 to the Indenture, dated
as of June 15, 1984.
Second Supplemental Indenture by and among Chrysler 4.2
Financial Company L.L.C., DaimlerChrysler AG and United
States Trust Company of New York, as successor Trustee,
dated February 15, 1999 to the Indenture, dated as of
September 15, 1986.
Fifth Supplemental Indenture by and among Chrysler 4.3
Financial Company L.L.C., DaimlerChrysler AG and United
States Trust Company of New York, as successor Trustee,
dated February 15, 1999 to the Indenture, dated as of
February 15, 1988.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as
amended, the Registrant has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
CHRYSLER FINANCIAL COMPANY L.L.C.
By: /s/ B.C. Babbish
-----------------------
B. C. Babbish
Assistant Secretary
Dated: February 16, 1999
EXHIBIT INDEX
Description Exhibit No.
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Fifth Supplemental Indenture by and among Chrysler 4.1
Financial Company L.L.C., DaimlerChrysler AG and United
States Trust Company of New York, as successor Trustee,
dated as of February 15, 1999 to the Indenture, dated
as of June 15, 1984.
Second Supplemental Indenture by and among Chrysler 4.2
Financial Company L.L.C., DaimlerChrysler AG and United
States Trust Company of New York, as successor Trustee,
dated February 15, 1999 to the Indenture, dated as of
September 15, 1986.
Fifth Supplemental Indenture by and among Chrysler 4.3
Financial Company L.L.C., DaimlerChrysler AG and United
States Trust Company of New York, as successor Trustee,
dated February 15, 1999 to the Indenture, dated as of
February 15, 1988.
Exhibit 4.1
CHRYSLER FINANCIAL COMPANY L.L.C.
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS SUCCESSOR TRUSTEE
FIFTH SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 15, 1999
SUPPLEMENT TO INDENTURE
DATED AS OF JUNE 15, 1984
SENIOR DEBT SECURITIES
GUARANTEE BY DAIMLERCHRYSLER AG
Table of Contents
Table of Contents
Page
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.1 Definitions.....................................................................................2
Section 1.2 Effect of Headings..............................................................................2
Section 1.3 Successors and Assigns..........................................................................2
Section 1.4 Severability Clause.............................................................................2
Section 1.5 Benefits of Fifth Supplemental Indenture........................................................2
Section 1.6 Governing Law...................................................................................2
Section 1.7 Effectiveness...................................................................................3
Section 1.8 Counterparts....................................................................................3
Article Two
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 2.1 Amendment to Section 101 "Definitions"..........................................................3
Section 2.2 Amendment to Section 102 "Compliance Certificate and Opinions"..................................4
Section 2.3 Amendment to Section 103 "Form of Documents Delivered to Trustee"...............................5
Section 2.4 Amendment to Section 104 "Acts of Holders"......................................................5
Section 2.5 Amendment to Section 105 "Notices, etc..........................................................5
Section 2.6 Amendment to Section 109 "Successors and Assigns"...............................................5
Section 2.7 New Section 114 "Appointment of Agent for Service"..............................................5
Section 2.8 Applicability of Inclusion of References to Guarantor...........................................7
Article Three
DEBT SECURITY FORMS
Section 3.1 Amendment to Section 201 "Forms Generally"......................................................7
Section 3.2 Amendment to Section 202 "Forms of Debt Securities".............................................7
Article Four
THE DEBT SECURITIES
Section 4.1 Amendment to Section 301 "Amount Unlimited; Issuable in Series".................................7
Section 4.2 Amendment to Section 303 "Execution, Authentication, Delivery and
Dating"........................................................................................8
Section 4.3 Amendment to Section 304 "Temporary Debt Securities"............................................8
Section 4.4 Amendment to Section 305 "Registration; Registration of Transfer and
Exchange".......................................................................................8
Section 4.5 Amendment to Section 306 "Mutilated, Destroyed, Lost and Stolen Debt
Securities".....................................................................................8
Section 4.6 Amendment to Section 307 "Payment of Interest; Interest Rights
Preserved"......................................................................................9
Section 4.7 Amendment to Section 308 "Persons Deemed Owners"................................................9
Section 4.8 Amendment to Section 309 "Cancellation".........................................................9
Article Five
SATISFACTION AND DISCHARGE
Section 5.1 Amendment to Section 401 "Satisfaction and Discharge of Indenture"..............................9
Section 5.2 Amendment to Section 402 "Application of Trust Money"...........................................9
Article Six
REMEDIES
Section 6.1 Amendment to Section 501 "Events of Default"....................................................9
Section 6.2 Amendment to Section 502 "Acceleration of Maturity; Rescission and
Annulment".....................................................................................10
Section 6.3 Amendment to Section 503 "Collection of Indebtedness and Suits for
Enforcement by Trustee"........................................................................10
Section 6.4 Amendment to Section 504 "Trustee May File Proofs of Claim"....................................10
Section 6.5 Amendment to Section 509 "Restoration of Rights and Remedies"..................................10
Section 6.6 Amendment to Section 515 "Waiver of Stay or Extension Laws"....................................10
Article Seven
THE TRUSTEE
Section 7.1 Amendment to Section 603 "Certain Rights of Trustee"...........................................10
Section 7.2 Amendment to Section 604 "Not Responsible for Recitals or Issuance of
Debt Securities"...............................................................................11
Section 7.3 Amendment to Section 605 "May Hold Debt Securities"............................................11
Section 7.4 Amendment to Section 606 "Money Held in Trust".................................................11
Section 7.5 Amendment to Section 607 "Compensation and Reimbursement"......................................11
Section 7.6 Amendment to Section 608 "Disqualification; Conflicting Interests".............................11
Section 7.7 Amendment to Section 610 "Resignation and Removal; Appointment of
Successor".....................................................................................11
Section 7.8 Amendment to Section 611 "Acceptance of Appointment by Successor"..............................11
Section 7.9 Amendment to Section 613 "Preferential Collection of Claims Against
Company".......................................................................................12
Article Eight
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 8.1 Amendment to Title of Article..................................................................12
Section 8.2 Amendment to Section 701 "Company to Furnish Trustee Names and
Addresses of Holders"..........................................................................12
Section 8.3 Amendment to Section 702 "Preservation of Information;
Communications to Holders".....................................................................12
Section 8.4 Amendment to Section 703 "Reports by Trustee"..................................................12
Section 8.5 Amendment to Section 704 "Reports by Company"..................................................12
Article Nine
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 9.1 Amendment to Section 801 "Company May Consolidate, etc.........................................13
Section 9.2 Amendment to Section 802 "Successor Corporation Substituted"...................................13
Article Ten
SUPPLEMENTAL INDENTURES
Section 10.1 Amendment to Section 901 "Supplemental Indentures Without Consent of
Holders".......................................................................................13
Section 10.2 Amendment to Section 902 "Supplemental Indentures with Consent of
Holders".......................................................................................14
Section 10.3 Amendment to Section 906 "Reference in Debt Securities to Supplemental
Indentures"....................................................................................14
Article Eleven
COVENANTS
Section 11.1 Amendment to Section 1002 "Maintenance of Office or Agency"....................................14
Section 11.2 Amendment to Section 1003 "Money for Debt Securities Payments to Be
Held in Trust".................................................................................14
Section 11.3 Amendment to Section 1011 "Waiver of Certain Covenants"........................................15
Article Twelve
REDEMPTION OF DEBT SECURITIES
Section 12.1 Amendment to Section 1103 "Selection by Trustee of Debt Securities to
be Redeemed"...................................................................................15
Section 12.2 Amendment to Section 1105 "Deposit of Redemption Price"........................................15
Section 12.3 Amendment to Section 1106 "Debt Securities Payable on Redemption
Date"..........................................................................................15
Section 12.4 Amendment to Section 1107 "Debt Security Redeemed in Part".....................................15
Article Thirteen
SINKING FUNDS
Section 13.1 Amendment to Section 1202 "Satisfaction of Sinking Fund Payments with
Debt Securities"...............................................................................15
Article Fourteen
GUARANTEES
Section 14.1 New Article Thirteen...........................................................................16
FIFTH SUPPLEMENTAL INDENTURE, dated as of February 15, 1999, among,
CHRYSLER FINANCIAL COMPANY L.L.C., a Michigan limited liability company (the
979721427"Company"), having its principal place of business at 27777 Franklin
Road, Southfield, Michigan 48034, DAIMLERCHRYSLER AG, a German corporation in
its capacity as guarantor of the securities issued by the Company (the
"Guarantor"), and UNITED STATES TRUST COMPANY OF NEW YORK, a New York
corporation, as successor trustee (the "Trustee"), having its Corporate Trust
Office at 114 West 47th Street, New York, New York 10036, as Trustee under the
indenture of the Company (the "Indenture") dated as of June 15, 1984, as
heretofore amended and supplemented by the First Supplemental Indenture dated
as of July 15, 1984, the Second Supplemental Indenture dated as of June 15,
1984, the Third Supplemental Indenture dated as of August 24, 1995, and the
Fourth Supplemental Indenture dated as of October 1, 1998.
RECITALS
WHEREAS, the Indenture provides that the Company and the Trustee may,
without the consent of any Holders, at any time and from time to time, enter
into one or more supplemental indentures, in form satisfactory to the Trustee,
for the purpose of supplementing the provisions of the Indenture with respect
to matters that are not inconsistent with any provision of the Indenture,
provided that such provisions shall not adversely affect the interests of the
Holders of the Debt Securities in any material respect.
WHEREAS, on November 10, 1998, Chrysler Corporation (which later
changed its name to DaimlerChrysler Corporation), the direct parent of the
Company, became a direct, wholly-owned subsidiary of the Guarantor.
WHEREAS, the Company desires to obtain an exemption from the
requirements of filing with the Securities and Exchange Commission an annual
report and such periodic information, documents and other reports as are
required by Sections 13 and 15(d) of the Securities Exchange Act of 1934 with
respect to the Company during and for its current fiscal year and thereafter,
and for that purpose the Company and the Guarantor are willing to supplement
the provisions of the Indenture by adding thereto the Guarantee set forth in
this Fifth Supplemental Indenture pursuant to Article Nine of the Indenture.
Such Guarantee is for the benefit, and will not adversely affect the interests,
of the Holders of Outstanding Securities.
WHEREAS, the Company and the Guarantor have each duly authorized the
execution and delivery of this Fifth Supplemental Indenture, and all things
necessary have been done to make this Fifth Supplemental Indenture a valid
agreement of the Company and the Guarantor, in accordance with its terms.
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, it
is mutually covenanted and agreed, for the equal and proportionate benefit of
all Holders of the Company's Debt Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of the Indenture and this Fifth Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
1. The terms defined in this Fifth Supplemental Indenture have the
meanings assigned to them in this Fifth Supplemental Indenture,
and include the plural as well as the singular;
2. The words, "herein," "hereof," and "hereunder" and other words
of similar import refer to the Indenture and this Fifth
Supplemental Indenture as a whole and not to any particular
Article, Section, or other subdivision; and
3. Capitalized terms used herein and not otherwise defined herein
have the meanings ascribed to them in the Indenture.
SECTION 1.2 Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 1.3 Successors and Assigns.
All covenants and agreements in this Fifth Supplemental Indenture by
the Company and the Guarantor shall bind their successors and assigns, whether
expressed or not.
SECTION 1.4 Severability Clause.
In case any provision in this Fifth Supplemental Indenture 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 1.5 Benefits of Fifth Supplemental Indenture.
Nothing in this Fifth Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder, and the Holders, any benefit or any legal or equitable right,
remedy, or claim under this Fifth Supplemental Indenture.
SECTION 1.6 Governing Law.
THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS THOUGH FULLY PERFORMED
THEREIN, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS.
SECTION 1.7 Effectiveness.
This Fifth Supplemental Indenture shall take effect on the date hereof
and shall amend the provisions of the Indenture with respect to each series of
Debt Securities issued under the Indenture, including each series of Debt
Securities issued under the Indenture prior to the date hereof.
SECTION 1.8 Counterparts.
This Fifth Supplemental 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 one and the same instrument.
ARTICLE TWO
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 2.1 Amendment to Section 101 "Definitions".
Section 101 of the Indenture is hereby amended as follows:
(a) The definition of "Board of Directors" is deleted and replaced in
its entirety with the following:
""Board of Directors" means the board of directors, supervisory board,
management board or board of managers or managing directors of the Company or
the Guarantor, as the case may be, or any duly authorized committee of that
board or any director or directors and/or officer or officers of the Company or
the Guarantor to whom that board or committee shall have duly delegated its
authority."
(b) The definition of "Board Resolution" is deleted and replaced in
its entirety with the following:
""Board Resolution" means a copy of a resolution certified by the Secretary, an
Assistant Secretary or a managing director or other officer of the Company or
the Guarantor, as the case may be, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification.
Where any provision of this Indenture refers to action to be taken pursuant to
a Board Resolution (including establishment thereof), such action may be taken
by any committee, officer or employee of the Company or the Guarantor, as the
case may be, authorized to take such action by a Board Resolution (including,
without limitation, in any Officers' Certificate of officers authorized to act
in connection with such matter by or pursuant to such Board Resolution)."
(c) A new definition "Guarantee" is added as follows:
""Guarantee" means any guarantee of the Guarantor with regard to each Debt
Security issued by the Company pursuant to this Indenture and shall include the
Guarantee set forth in Article Fourteen of this Fifth Supplemental Indenture
and all other obligations and covenants of the Guarantor contained in this
Indenture and any Debt Securities whether issued previous to or after the date
of this Fifth Supplemental Indenture."
(d) A new definition "Guarantor" is added as follows:
""Guarantor" means the Person named as the "Guarantor" in the first paragraph
of this Fifth Supplemental Indenture until a successor shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor."
(e) A new definition "Guarantor Request" and "Guarantor Order" is
added as follows:
""Guarantor Request" and "Guarantor Order" mean a written request or order
signed in the name of the Guarantor by its Chairman of the Board, President, a
Vice President, director, managing director or other authorized officer and by
its Treasurer, Assistant Treasurer, its Secretary or an Assistant Secretary or
other authorized officer and delivered to the Trustee."
(f) The definition of "Officers' Certificate" is deleted and replaced
in its entirety with the following:
""Officers' Certificate" means with respect to the Company or the Guarantor a
certificate of the Company or the Guarantor signed by its Chairman of the
Board, Vice Chairman of the Board, President or an Executive Vice President or
Vice President director, managing director or other authorized officer, and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary, director, managing director or other
authorized officer, of the Company or the Guarantor, as the case may be, and
delivered to the Trustee."
(g) The definition of "Opinion of Counsel" is amended to insert "or
the Guarantor, as the case may be, "after "Company" in the second line thereof.
(h) The definition of "Outstanding" is amended to insert "or the
Guarantor, as the case may be" after "Company" in the third line of clause
(ii), the first appearance of "Company" in the fourth line of clause (ii) and
in the last line of clause (iii), and is further amended to insert "or the
Guarantor, as the case may be," after the second appearance in the fourth line
of clause (ii), and is further amended to insert ", the Guarantor" after
"Company" in the fourth, fifth, twelfth and thirteenth lines of the remainder
of the definition.
SECTION 2.2 Amendment to Section 102 "Compliance Certificate and Opinions".
Section 102 is amended to insert "or the Guarantor" after "Company" in
the first line of the first paragraph and is further amended to insert "or the
Guarantor, as the case may be," after "Company" in the second line of the first
paragraph.
SECTION 2.3 Amendment to Section 103 "Form of Documents Delivered to Trustee".
Section 103 is amended to insert the phrase "or the Guarantor, as the
case may be," after "Company" in the first, eighth and ninth lines of the
second paragraph.
SECTION 2.4 Amendment to Section 104 "Acts of Holders".
Section 104 is amended to insert "or the Guarantor or both of them"
after "Company" in the seventh line of paragraph (a), and is further amended to
insert "and the Guarantor" after "Company" in the twelfth line of paragraph (a)
and is further amended to insert "or the Guarantor" after "Company" in the
fifth line of paragraph (d).
SECTION 2.5 Amendment to Section 105 "Notices, etc., to Trustee and Company".
Section 105 is amended to insert ", Guarantor" after "Trustee" in the
title of the Section, and is further amended to insert "or the Guarantor" after
"Company" in the first line of clause (1) and the first line of clause (2), and
is further amended to insert "or the Guarantor, as the case may be," after
"Company" in the third line of clause (2), and is further amended to insert "or
the Guarantor, as the case may be" after "Company" in the sixth line of clause
(2), and is further amended to replace "instrument" in the fifth line of clause
(2) with "Fifth Supplemental Indenture", and is further amended to add a second
paragraph as follows:
"Any request, demand, authorization, direction, notice, consent,
waiver or other action required or permitted under this Indenture
shall be in the English language, and any published notice may also be
in an official language of the country or province of publication."
SECTION 2.6 Amendment to Section 109 "Successors and Assigns".
Section 109 is amended to insert "or the Guarantor" after "Company",
and is further amended to delete "its" and replace it with "their respective",
and is further amended to insert "so" after "whether."
New Section 114 "Appointment of Agent for Service".
A new Section 114 is added as follows:
"SECTION 114. Appointment of Agent for Service.
By the execution and delivery of this Fifth Supplemental
Indenture, the Guarantor designates and appoints DaimlerChrysler North
America Holding Corporation, in the Borough of Manhattan, City and
State of New York, as its authorized agent upon which process may be
served in any suit or proceeding arising out of or relating to the
Debt Securities, the Guarantees or this Indenture which may be
instituted in any Federal or New York State Court located in the
Borough of Manhattan, City and State of New York, but for that purpose
only, and agrees that service of process upon said DaimlerChrysler
North America Holding Corporation, directed to the attention of
Treasurer, and written notice of said service given by the Person
serving the same to it, addressed to DaimlerChrysler North America
Holding Corporation, 375 Park Avenue, Suite 3001, New York, New York
10152, shall be deemed in every respect effective service of process
upon it in any such suit or proceeding in any Federal or State court
in such Borough, City and State. The Guarantor hereby submits (for the
purposes of any such suit or proceeding) to the jurisdiction of any
such court in which any such suit or proceeding is so instituted, and
irrevocably waives, to the fullest extent it may lawfully do so, any
objection it may have now or hereafter to the laying of the venue of
any such suit, action or proceeding in any such court and irrevocably
waives, to the fullest extent it may lawfully do so, any claim that
any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Such submission and waiver shall be
irrevocable so long as any of the Debt Securities remain outstanding
and such appointment shall be irrevocable until the appointment of a
successor by the Guarantor, with the consent of the Trustee and such
successor's acceptance of such appointment. Upon such acceptance, the
Guarantor shall notify the Trustee, in writing, of the name and
address of such successor. The Guarantor further agrees to take any
and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such
designation and appointment of said DaimlerChrysler North America
Holding Corporation or its successor in full force and effect so long
as any of the applicable Debt Securities shall be outstanding. The
Trustee shall not be obligated and shall have no responsibility with
respect to any failure by the Guarantor to take any such action above.
The Guarantor agrees to the fullest extent that it lawfully
may do so, that final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon the
Guarantor and may be enforced in the courts of Germany (or any other
courts to the jurisdiction of which the Guarantor is subject) by a
suit upon such judgment, provided that service of process is effected
upon the Guarantor in the manner specified in the foregoing paragraph
or as otherwise permitted by law; provided, however, that the
Guarantor does not waive, and the foregoing provisions of this
sentence shall not constitute or be deemed to constitute a waiver of,
(1) any right to appeal any such judgment, to seek any stay or
otherwise to seek reconsideration or review of any such judgment, (2)
any stay of execution or levy pending an appeal from, or a suit,
action or proceeding for reconsideration of, any such judgment, (3)
any defense to a claim for punitive damages and the like, (4) the
defense of payment, or (5) any other right or remedy of the Guarantor
to the extent not expressly waived in accordance with this Section
114.
Nothing in this Section shall affect the right of the Trustee
or any Holder of any Debt Security to serve process in any manner
permitted by applicable law or limit the right of the Trustee or any
Holder of any Debt Security to bring proceedings against the Company
and/or the Guarantor, in the courts of any other jurisdiction or
jurisdictions."
SECTION 2.8 Applicability of Inclusion of References to Guarantor.
Notwithstanding any provision hereof to the contrary, references to
the Guarantor in Article Five and in Articles Eight through Thirteen of the
Indenture shall only be considered to be included in the Indenture and shall
only be applicable in connection with any Debt Securities issued after February
15, 1999.
ARTICLE THREE
DEBT SECURITY FORMS
SECTION 3.1 Amendment to Section 201 "Forms Generally".
Section 201 is amended to insert the following paragraphs after the
first paragraph:
"For Debt Securities issued after the date hereof, the Guarantee shall
be endorsed on each Debt Security and such Guarantee for the Debt Securities of
a particular series shall be in such form as is established pursuant to Section
202.
Outstanding Debt Securities issued prior to the date hereof shall be
Guaranteed pursuant to the terms of Article Fourteen hereof and no endorsement,
authentication or other evidence of such Guarantee shall be necessary on any
Outstanding Debt Security and no separate Guarantee need be executed and
delivered by the Guarantor to the Holder of an Outstanding Debt Security."
SECTION 3.2 Amendment to Section 202 "Forms of Debt Securities".
Section 202 is amended to insert "and Guarantees" after "Securities"
in the title to the Section and is further amended to insert the following
paragraph after the first paragraph of the Section:
"Except for Outstanding Debt Securities issued prior to the date
hereof, which shall be Guaranteed as set forth in Section 201 hereof, the
Guarantee of the Guarantor shall be endorsed on each Debt Security and for each
particular series of Debt Securities shall be in substantially such form or
forms as shall be established by or pursuant to a Board Resolution (including,
without limitation, in any Officers' Certificate of an officer authorized to
act in connection with such matter or pursuant to such Board Resolution) of the
Guarantor or an indenture supplemental hereto, with such appropriate
insertions, omissions, substitutions and other corrections as are required or
permitted by this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Guarantees. Such execution of such Guarantees shall be
conclusive evidence as regards the Guarantor as to any such determination made
by the Guarantor."
ARTICLE FOUR
THE DEBT SECURITIES
SECTION 4.1 Amendment to Section 301 "Amount Unlimited; Issuable in Series".
Section 301 is amended to insert "and related Guarantees" after "Debt
Securities" in the first line of the second paragraph.
SECTION 4.2 Amendment to Section 303 "Execution, Authentication, Delivery
and Dating".
Section 303 is amended to insert "from the Company and the Guarantor"
after "receive" in the sixth line of the third paragraph and is further amended
to add "and the related Guarantees" after "Debt Securities" in the eighth line
of the third paragraph and is further amended to add "by the Company and the
Guarantor, respectively" after the first appearance of "approved" in the ninth
line of the third paragraph, and is further amended to add "and the Guarantor"
after "Company" in the first line of clause (1), in the fourth, fifth and
seventh lines of clause (4) and in the second, third, and fourth lines of
clause (5) and in the fifth line of clause (5), in both places where that term
appears, and is further amended to insert "and the related Guarantees" after
"Debt Securities" in the second line of clause (1), and is further amended to
insert "including the Guarantee," after "Indenture," in the sixth line of
clause (5), and is further amended to insert ", or Guarantee endorsed thereon"
after "Debt Security" in the first line of the last paragraph and is further
amended to insert a new paragraph at the end of the Section as follows:
"Reference is made to Section 1302 concerning the execution and delivery of the
Guarantees."
SECTION 4.3 Amendment to Section 304 "Temporary Debt Securities".
Section 304 is amended to insert "and each having endorsed thereon the
Guarantee executed by the Guarantor, substantially of the tenor of the
definitive Guarantee" after "issued" in the fifth line of the first paragraph,
and is further amended to insert "and such Guarantees" after "Securities" in
the seventh and eighth lines of the first paragraph, and is further amended to
insert "having endorsed thereon Guarantees executed by the Guarantor" after
"denominations" in the tenth line of the second paragraph.
SECTION 4.4 Amendment to Section 305 "Registration; Registration of Transfer
and Exchange".
Section 305 is amended to insert "or the Guarantor" after "Trustee" in
the last line of the first paragraph, and is further amended by adding ", the
Guarantor shall guarantee" after "execute" in the third line of the second
paragraph, and is further amended to insert ", each having endorsed thereon the
Guarantee executed by the Guarantor" after "amount" in the last line of the
second paragraph and after "receive" in the last line of the third paragraph,
and is further amended to insert "and the Guarantor," after "Company" in the
second line of the fourth paragraph.
SECTION 4.5 Amendment to Section 306 "Mutilated, Destroyed, Lost and Stolen
Debt Securities".
Section 306 is amended to insert ", the Guarantor" after "Company" in
the second, third and fifth lines of the first paragraph, and is further
amended to insert ", having endorsed thereon the Guarantee executed by the
Guarantor" after "principal amount" in the tenth line of the first paragraph,
and is further amended to delete "in its discretion" in the second line of the
second paragraph and replace it with: "and the Guarantor in their discretion,"
and is further amended to insert ", and the Guarantee endorsed thereon" after
"series" in the first line of the fourth paragraph, and is further amended to
insert "and the Guarantor respectively" after "Company" in the third line of
the fourth paragraph, and is further amended to insert "and the Guarantees
endorsed thereon, if any," after "series" in the last line of the fourth
paragraph.
SECTION 4.6 Amendment to Section 307 "Payment of Interest; Interest Rights
Preserved".
Section 307 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first, fifth, eighth, eighteenth and nineteenth
lines of clause (1) and in the first and fifth lines of clause (2), and is
further amended to insert "or the Guarantor, as the case may be" after
"Company" in the fifth line of the second paragraph and in the twenty-fourth
line of clause (1).
SECTION 4.7 Amendment to Section 308 "Persons Deemed Owners".
Section 308 is amended to insert ", the Guarantor" after "Company" in
the second line (both places) and the seventh line (both places) of the first
paragraph.
SECTION 4.8 Amendment to Section 309 "Cancellation".
Section 309 is amended to insert "or the Guarantor" after "Company" in
the fourth and sixth lines of the first paragraph and is further amended to
insert "and the Guarantor" after the first appearance of "Company" in the
twelfth line of the first paragraph.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.1 Amendment to Section 401 "Satisfaction and Discharge of Indenture".
Section 401 is amended to insert "or the Guarantor" after "Company" in
the fifth and sixth lines of paragraph (1)(A) and in the eighth line of
paragraph (1)(B), in the first and second lines in clause (2), in the first
line of clause (3) and in the last sentence of the Section.
SECTION 5.2 Amendment to Section 402 "Application of Trust Money".
Section 402 is amended to insert "or the Guarantor" after "Company" in
the fifth line of the first paragraph.
ARTICLE SIX
REMEDIES
SECTION 6.1 Amendment to Section 501 "Events of Default".
Section 501 is amended to insert "or the Guarantor" after "Company" in
the second line of clause (4), in the first and sixth lines of clause (6), and
in the first, sixth and tenth lines of clause (7), and is further amended to
insert "and the Guarantor" after "Company" in the seventh line of clause (4),
and is further amended to insert ", the Guarantor" after "Company" in the
eighth line of clause (4), and is further amended to replace "by it" in the
seventh and eighth lines of clause (7) with "by the Company or the Guarantor,".
SECTION 6.2 Amendment to Section 502 "Acceleration of Maturity; Rescission
and Annulment".
Section 502 is amended to insert "and the Guarantor" after "Company"
in the eighth line of the first paragraph and the fifth line of the second
paragraph, and is further amended to insert "or the Guarantor" after "Company"
in the first line of clause (1).
SECTION 6.3 Amendment to Section 503 "Collection of Indebtedness and Suits for
Enforcement by Trustee".
Section 503 is amended to insert "and the Guarantor each," after
"Company" in the first line of the first paragraph, and is further amended to
insert "and the Guarantor" after "Company" in the seventh line of the first
paragraph, and is further amended to insert "or the Guarantor" after "Company"
in the first, fifth and seventh lines of the second paragraph.
SECTION 6.4 Amendment to Section 504 "Trustee May File Proofs of Claim".
Section 504 is amended to insert ", the Guarantor" after "Company" in
the fourth and fifth lines of the first paragraph, and is further amended to
insert "or the Guarantor" after "Company" in the ninth line of the first
paragraph.
SECTION 6.5 Amendment to Section 509 "Restoration of Rights and Remedies".
Section 509 is amended to insert ", the Guarantor" after "Company" in
the fourth line of the first paragraph.
SECTION 6.6 Amendment to Section 515 "Waiver of Stay or Extension Laws".
Section 515 is amended to insert "and the Guarantor each" after
"Company" in the first and fifth lines of the first paragraph.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.1 Amendment to Section 603 "Certain Rights of Trustee".
Section 603 is amended to insert "or the Guarantor" after "Company" in
the first sentence of clause (b), and is further amended by inserting "or a
Guarantor Request or Guarantor Order" after "Order" in the second sentence of
clause (b), and is further amended by inserting "of the Company or the
Guarantor" after "Directors" in the third line of clause (b), and it is further
amended to insert "or the Guarantor or both of them" after "Company" in the
eighth line of clause (f).
SECTION 7.2 Amendment to Section 604 "Not Responsible for Recitals or Issuance
of Debt Securities".
Section 604 is amended to insert "or the Guarantor," after "Company"
in the second line of the first paragraph, and is further amended to insert "or
of the Guarantees" after "series" in the fifth line of the first paragraph.
SECTION 7.3 Amendment to Section 605 "May Hold Debt Securities".
Section 605 is amended to insert "or the Guarantor" after "Company" in
the second line of the first paragraph, and is further amended to insert "or
the Guarantor, as the case may be," after "Company" in the fourth line of the
first paragraph.
SECTION 7.4 Amendment to Section 606 "Money Held in Trust".
Section 606 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the last line of the first paragraph.
SECTION 7.5 Amendment to Section 607 "Compensation and Reimbursement".
Section 607 is amended to insert "and the Guarantor each, jointly and
severally," after "Company" in the first line of the first paragraph, and is
further amended to insert "and the Guarantor" after "Company" in the first line
of the last paragraph.
SECTION 7.6 Amendment to Section 608 "Disqualification; Conflicting Interests".
Section 608 is amended to insert "(including the Guarantor)" after
"obligor" in clause (5) of paragraph (d).
SECTION 7.7 Amendment to Section 610 "Resignation and Removal; Appointment of
Successor".
Section 610 is amended to insert "and the Guarantor" after "Company"
in the second line of paragraph (b), and is further amended to insert ", the
Guarantor" after "Trustee" in the third line of paragraph (c), and is further
amended to insert "or the Guarantor," after "Company" in the third line of
paragraph (d)(1) and in the second line of paragraph (d)(2), and is further
amended to insert ", the Guarantor," after "Company" in the thirteenth line of
paragraph (e).
SECTION 7.8 Amendment to Section 611 "Acceptance of Appointment by Successor".
Section 611 is amended to insert ", the Guarantor" after "Company" in
the third and seventh lines of paragraph (a), and the second and twenty-seventh
lines of paragraph (b), and is further amended to insert "and the Guarantor"
after the word "Company" in the first line of paragraph (c).
SECTION 7.9 Amendment to Section 613 "Preferential Collection of Claims
Against Company".
Section 613 is amended to insert "(including the Guarantor)" after
"obligor" in paragraph (c)(5).
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.1 Amendment to Title of Article.
The title of the Article is amended to insert ", GUARANTOR" after
"TRUSTEE."
SECTION 8.2 Amendment to Section 701 "Company to Furnish Trustee Names
and Addresses of Holders".
Section 701 is amended to insert "and the Guarantor" after "Company"
in the title of the Section and in the first line of the first paragraph, and
is further amended to insert "or the Guarantor" after "Company" in the second
line of paragraph (b).
SECTION 8.3 Amendment to Section 702 "Preservation of Information;
Communications to Holders".
Section 702 is amended to insert ", the Guarantor" after "Company" in
both places in the second line of paragraph (c).
SECTION 8.4 Amendment to Section 703 "Reports by Trustee".
Section 703 is amended to insert "and the Guarantor" after "Company"
in the second line of paragraph (a)(3), and is further amended to insert "and
the Guarantor" after the first use of Company" in the third line of paragraph
(c).
SECTION 8.5 Amendment to Section 704 "Reports by Company".
Section 704 is amended to insert "and the Guarantor" after "Company"
in the title of the Section and in the first line of the first paragraph, and
is further amended to insert "or the Guarantor" after "Company" in the first,
fifth and seventh lines of clause (1), and is further amended to insert the
following after the word "regulations;" in the last line of clause (1):
"provided that no such supplementary and periodic information,
documents and reports need to be filed by the Company if, pursuant to the rules
and regulations of the Commission, it is exempt from such filing requirements
by virtue of the existence of the Guarantees;"
and is further amended to insert "or the Guarantor, or both," after
"Company" in the fourth line of clause (2), and is further amended to insert
"or the Guarantor, as the case may be," after "Company" in the fourth line of
clause (3).
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.1 Amendment to Section 801 "Company May Consolidate, etc.,
Only on Certain Terms".
Section 801 is amended to insert "and Guarantor" after "Company" in
the title of the Section, and is further amended to add a new final paragraph
as follows:
"The Guarantor may merge with or into any corporation or sell,
transfer, lease or convey all or substantially all of its assets
substantially as an entirety to any corporation; provided that (a) the
corporation formed by such merger or consolidation or the corporation
which acquired such assets expressly assumes all of the obligations of
the Guarantor hereunder (including additional amounts, if any, as set
forth in Article Fourteen hereof), and (b) immediately after giving
effect to such transaction, no Event of Default with respect to such
Debt Securities and no event which, after notice or lapse of time or
both, would become an Event of Default with respect to such Debt
Securities, shall have occurred and be continuing."
SECTION 9.2 Amendment to Section 802 "Successor Corporation Substituted".
Section 802 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the second, fourth, sixth and eighth lines of the first
paragraph.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1 Amendment to Section 901 "Supplemental Indentures Without
Consent of Holders".
Section 901 is amended to insert "and the Guarantor" after "Company"
in the first line of the first paragraph, and is further amended to insert "or
the Guarantor" after "Company" in the first and second lines of clause (1) and
the first and last lines of clause (2), and is further amended to insert "or
the Guarantees" after "Debt Securities" in the last line of clause (1), and is
further amended to insert "contained" after "and" in the third line of clause
(1), and is further amended by deleting "contained" at the end of clause (1),
and is further amended to insert "or related Guarantee, if any" after
"Securities" in the second and third lines of clause (2), and is further
amended to insert "and related Guarantee, if any" after "Securities" in the
second line of clause (3), and is further amended to insert "and related
Guarantee, if any," after "Securities" in the third line of clause (4), the
first line of clause (6), the second line of clause (7), in clause (8) and in
the sixth line of clause (9), and is further amended to insert "(and related
Guarantee)" after "Security" in the third line of clause (5).
SECTION 10.2 Amendment to Section 902 "Supplemental Indentures with
Consent of Holders".
Section 902 is amended to insert ", the Guarantor" after "Company" in
the first appearance in the third line of the first paragraph, and is further
amended to insert "and the Guarantor" after "Company" in the second appearance
in the third line of the first paragraph, and is further amended to insert
"not" after "shall" in the ninth line of the first paragraph, and is further
amended to add a new clause (4) as follows:
"(4) change in any manner adverse to the interests of the Holders of
any Outstanding Debt Securities the terms and conditions of the obligations of
the Guarantor in respect of the due and punctual payment of principal thereof
(and premium, if any) and interest, if any, thereon or any additional amounts
or any sinking fund payments provided in respect thereof."
SECTION 10.3 Amendment to Section 906 "Reference in Debt Securities to
Supplemental Indentures".
Section 906 is amended to insert "and the Guarantor" after "Company"
in the fourth line of the first paragraph, and is further amended to insert "of
the Company and the Guarantor" after "Directors" in the sixth line of the first
paragraph, and is further amended to insert ", the Guarantees may be executed
by the Guarantor" after "Company" in the seventh line of the first paragraph.
ARTICLE ELEVEN
COVENANTS
SECTION 11.1 Amendment to Section 1002 "Maintenance of Office or Agency".
Section 1002 is amended to insert "and the Guarantor" after "Company"
in the first and eleventh lines in the first paragraph, and is further amended
to insert "or the Guarantor" after "Company" in the fourth, fifth and seventh
lines of the first paragraph, and the first, fifth and seventh lines of the
second paragraph.
SECTION 11.2 Amendment to Section 1003 "Money for Debt Securities Payments to
Be Held in Trust".
Section 1003 is amended to insert the "or the Guarantor" after
"Company" in the first line of the first paragraph and in the second, sixth and
ninth lines of the last paragraph, and is further amended to insert "and the
Guarantor" after "Company" in the first line of the second paragraph and is
further amended to delete "it will" from the second line of the second
paragraph and replace it with "the Company will" , and is further amended to
delete "shall be paid to the Company on Company Request" and to replace it with
"shall be paid to the Company or the Guarantor, as the case may be, on a
Company Request or a Guarantor Request, as the case may be," in the first line
of the last paragraph and is further amended to insert the letter "s" at the
end of "trust" in the sixth line of the last paragraph, and is further amended
to insert "(or to the Guarantor pursuant to its Guarantee)" after "Company" in
the eighth line of the last paragraph, and is further amended to insert "or the
Guarantor, as the case may be" after "Company" in the last line of the last
paragraph.
SECTION 11.3 Amendment to Section 1011 "Waiver of Certain Covenants".
Section 1011 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first line of the first paragraph, and is further
amended to insert "and the Guarantor, as the case may be," after "Company" in
the ninth line of the first paragraph.
ARTICLE TWELVE
REDEMPTION OF DEBT SECURITIES
SECTION 12.1 Amendment to Section 1103 "Selection by Trustee of Debt
Securities to be Redeemed".
Section 1103 is amended to insert "and the Guarantor" after "Company"
in the first line of the second paragraph.
SECTION 12.2 Amendment to Section 1105 "Deposit of Redemption Price".
Section 1105 is amended to insert "or the Guarantor" after "Company"
in the first and second lines of the first paragraph.
SECTION 12.3 Amendment to Section 1106 "Debt Securities Payable on Redemption
Date".
Section 1106 is amended to insert "and the Guarantor" after "Company"
in the fourth line of the first paragraph.
SECTION 12.4 Amendment to Section 1107 "Debt Security Redeemed in Part".
Section 1107 is amended to insert ", each having endorsed thereon the
Guarantee executed by the Guarantor" after "surrendered" in the last line of
the first paragraph.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.1 Amendment to Section 1202 "Satisfaction of Sinking Fund Payments
with Debt Securities".
Section 1202 is amended to insert "or the Guarantor" after "Company"
in the first line of the first paragraph.
ARTICLE FOURTEEN
GUARANTEES
SECTION 14.1 New Article Thirteen.
"ARTICLE THIRTEEN
GUARANTEES
The provisions of this Article shall be applicable to all Debt
Securities whether issued previous to or after the date of this Fifth
Supplemental Indenture.
SECTION 1301. Guarantees.
The Guarantor hereby irrevocably and unconditionally guarantees to
each Holder of any Debt Security issued under this Indenture by the Company and
to the Trustee on behalf of each such Holder, the due and punctual payment of
the principal of (and premium, if any, on) and interest, if any, on each such
Debt Security (including any additional amounts payable in accordance with the
terms of any such Debt Security and this Indenture) and the due and punctual
payment of any sinking fund payments provided for pursuant to the terms of any
such Debt Security when and as the same shall become due and payable, whether
at the Stated Maturity, if any, by declaration of acceleration, call for
redemption, request for redemption, repayment at the option of the Holder or
otherwise, in accordance with the terms of such Debt Security and of this
Indenture. In case of the failure of the Company punctually to make any such
payment of principal (or premium, if any) or interest, if any, (including any
additional amounts as referred to above) or sinking fund payment, the Guarantor
hereby agrees to cause any such payment to be made punctually when and as the
same shall become due and payable, whether at the Stated Maturity, if any, by
declaration of acceleration, call for redemption, request for redemption,
repayment at the option of the Holder or otherwise, and as if such payment were
made by the Company.
The Guarantor will pay to the Holder of such Debt Security such
additional amounts as may be necessary in order that every net payment of the
principal of (and premium, if any, on) and interest, if any, on such Debt
Security after deduction or other withholding for or on account of any present
or future tax, assessment, duty or other governmental charge of any nature
whatsoever imposed, levied or collected by or on behalf of the country in which
the Guarantor is organized or any political subdivision or taxing authority
thereof or therein having power to tax, will not be less than the amount
provided for in such Debt Security to be then due and payable; provided,
however, that the foregoing obligation to pay additional amounts will not apply
on account of any tax, assessment, duty or other governmental charge which is
payable (a) otherwise than by deduction or withholding from payments of
principal of (or premium, if any, on) or interest, if any, on such Debt
Security; or (b) by reason of the Holder having, or having had, some personal
or business connection with the country in which the Guarantor is organized and
not merely by reason of the fact that payments are, or for the purposes of
taxation are deemed to be, from sources in, or secured in, the country in which
the Guarantor is organized; or (c) by reason of a change in law or official
practice of any relevant taxing authority that becomes effective on or after
the date hereof for payment of principal (or premium, if any), or interest, if
any, in respect of such Debt Security; or (d) by reason of any estate, excise,
inheritance, gift, sales, transfer, wealth, personal property tax or any
similar assessment or governmental charge; or (e) as a result of the failure of
the Holder to satisfy any statutory requirements or make a declaration of
nonresidence or other similar claim for exemption to the relevant tax
authority; or (f) owing to any combination of clauses (a) through (e) above.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of the validity, regularity or enforceability of
any such Debt Security, this Indenture or this guarantee, the absence of any
action to enforce the same, any waiver or consent by the Holder of any such
Debt Security or by the Trustee or the Paying Agent with respect to any
provisions thereof or of this Indenture or this guarantee, the existence of any
judgment against the Company, as the Company, or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Debt Security or the indebtedness evidenced thereby or with respect to any
sinking fund payment required pursuant to the terms of any such Debt Security
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by complete performance of all of the obligations of the
Guarantor contained in this Indenture and any such Debt Securities and in the
Guarantees. If the Trustee or the Holder of any such Debt Security is required
by any court or otherwise to return (and does so return) to the Company or the
Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or
other similar official acting in relation to the Company or the Guarantor, any
amount paid to the Trustee or such Holder in respect of any such Debt Security,
this Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. The Guarantor further agrees, to the fullest extent that
it lawfully may do so, that, as between the Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, the Maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 502 hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition extant under any applicable bankruptcy, insolvency, reorganization
or other similar law of the United States or Germany or any other applicable
country or jurisdiction preventing such acceleration in respect of the
obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the Holders of such
Debt Securities of a particular series against the Company in respect of any
amounts paid to such Holders by the Guarantor pursuant to the provisions of the
Guarantees under this Indenture; provided however, that the Guarantor shall not
be entitled to receive any payments arising out of the subrogation from the
Company (i) while any Event of Default shall have occurred and be continuing
with respect to any Debt Securities issued by the Company under Sections
501(l), 501(2), 501(3), 501(5), 501(6), or 501(4) (but only to the extent such
Event of Default under Section 501(4) arises out of a default by the Company
under the covenants set forth in Sections 1001 or 1004),or (ii) any default
(which with the passage of time would become an Event of Default) with respect
to any Debt Securities issued by the Company, under Section 501(1) or 501(2)
shall have occurred and be continuing.
SECTION 1302. Execution and Delivery of Guarantees.
Outstanding Debt Securities issued prior to the date hereof shall be
guaranteed pursuant to the terms of Section 1301 hereof and no endorsement,
authentication or other evidence of such Guarantee shall be necessary on any
such Outstanding Debt Security and no separate Guarantee need be executed and
delivered by the Guarantor to the Holder of a Debt Security Outstanding on the
date hereof.
To evidence its Guarantee provided in Section 1301 for Debt Securities
issued after the date hereof, the Guarantor hereby agrees to execute the
Guarantee, in a form established pursuant to Section 202, to be endorsed on
each Debt Security issued hereunder by the Company and authenticated and
delivered by the Paying Agent. Each such Guarantee shall be executed on behalf
of the Guarantor by any two of its authorized representatives. The signature of
any authorized representative on each Guarantee may be manual or facsimile.
Any Guarantee bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Guarantor shall
bind the Guarantor, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of the
Debt Securities upon which any such Guarantee is endorsed or did not hold such
offices at the date of such Debt Securities.
The delivery of any such Debt Security by the Paying Agent, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee. The Guarantor hereby agrees that its Guarantee set forth in Section
1301 shall remain in full force and effect notwithstanding any failure to
endorse on each such Security a notation of such Guarantee."
IN WITNESS WHEREOF, the parties hereby have caused this Fifth
Supplemental Indenture to be duly executed, and their respective seals to be
hereunto affixed and attested all as of the day and year first above written.
CHRYSLER FINANCIAL COMPANY L.L.C.
By: /s/ D.M. Cantwell
Name: D.M. Cantwell
Title: Vice President and Treasurer
[Seal]
Attest:
/s/ B.C. Babbish
Name: B.C. Babbish
Title: Assistant Secretary
DAIMLERCHRYSLER AG,
as Guarantor
By: /s/ Horst Eidermuller
Name: Horst Eidermuller
Title: Vice President
By: /s/ Siegfried Schwung
Name: Siegfried Schwung
Title: Associate General Counsel
UNITED STATES TRUST COMPANY OF NEW YORK,
as successor Trustee
By: /s/ Patricia Stermer
Name: Patricia Stermer
Title: Assistant Vice President
[Seal]
Attest:
/s/ Jason G. Gregory
Name: Jason G. Gregory
Title: Assistant Secretary
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On this 9th day of February, 1999, before me appeared D. M. Cantwell,
to me personally known, who, being by me duly sworn, did say that he is the
Vice President and Treasurer of CHRYSLER FINANCIAL COMPANY L.L.C., one of the
parties described in and which executed the above instrument, and that the seal
affixed to such instrument is the seal of such company, and that such
instrument was signed and sealed on behalf of such company by authority of its
Managers, and such Vice President and Treasurer acknowledged such instrument to
be the free act and deed of such company.
/s/ Juanita M. Hendrick
[NOTARIAL SEAL] Notary Public, Wayne County, MI
My Commission Expires
February 27, 2003
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 9th day of February, 1999, before me appeared Patricia Stermer
to me personally known, who, being by me duly sworn, did say that he or she is
Assistant Vice President of UNITED STATES TRUST COMPANY OF NEW YORK, one of the
parties described in and which executed the above instrument, and that he or
she knows the corporate seal of such company, and that the seal affixed to such
instrument is such company seal; and that it was so affixed pursuant to
authority of the Board of Directors of such company, and that he or she signed
his or her name thereto pursuant to like authority.
/s/ Christine C. Collins
[NOTARIAL SEAL] Notary Public, State of New York
No. 03-4624735
Qualified Bronx County
Commission Expires March 30, 2000
Exhibit 4.2
CHRYSLER FINANCIAL COMPANY L.L.C.
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS SUCCESSOR TRUSTEE
SECOND SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 15, 1999
SUPPLEMENT TO INDENTURE
DATED AS OF SEPTEMBER 15, 1986
SENIOR DEBT SECURITIES
GUARANTEE BY DAIMLERCHRYSLER AG
Table of Contents
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.............................................................................2
SECTION 1.2 Effect of Headings......................................................................2
SECTION 1.3 Successors and Assigns..................................................................2
SECTION 1.4 Severability Clause.....................................................................2
SECTION 1.5 Benefits of Second Supplemental Indenture...............................................2
SECTION 1.6 Governing Law...........................................................................3
SECTION 1.7 Effectiveness...........................................................................3
SECTION 1.8 Counterparts............................................................................3
ARTICLE TWO
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 2.1 Amendment to Section 101 "Definitions"..................................................3
SECTION 2.2 Amendment to Section 102 "Compliance Certificate and Opinions"..........................5
SECTION 2.3 Amendment to Section 103 "Form of Documents Delivered to Trustee".......................5
SECTION 2.4 Amendment to Section 104 "Acts of Holders"..............................................5
SECTION 2.5 Amendment to Section 105 "Notices, etc..................................................5
SECTION 2.6 Amendment to Section 109 "Successors and Assigns".......................................5
SECTION 2.7 New Section 114 "Appointment of Agent for Service"......................................5
SECTION 2.8 Applicability of Inclusion of References to Guarantor...................................7
ARTICLE THREE
DEBT SECURITY FORMS
SECTION 3.1 Amendment to Section 201 "Forms Generally"..............................................7
SECTION 3.2 Amendment to Section 202 "Forms of Debt Securities".....................................7
ARTICLE FOUR
THE DEBT SECURITIES
SECTION 4.1 Amendment to Section 301 "Amount Unlimited; Issuable in Series".........................8
SECTION 4.2 Amendment to Section 303 "Execution, Authentication, Delivery and Dating"...............8
SECTION 4.3 Amendment to Section 304 "Temporary Debt Securities"....................................8
SECTION 4.4 Amendment to Section 305 "Registration; Registration of Transfer and Exchange"..........9
SECTION 4.5 Amendment to Section 306 "Mutilated, Destroyed, Lost and Stolen Debt Securities"........9
SECTION 4.6 Amendment to Section 307 "Payment of Interest; Interest Rights Preserved"...............9
SECTION 4.7 Amendment to Section 308 "Persons Deemed Owners"........................................9
SECTION 4.8 Amendment to Section 309 "Cancellation".................................................9
SECTION 4.9 Amendment to Section 311 "Payment in Currencies".......................................10
SECTION 4.10 Amendment to Section 313 "Judgments"...................................................10
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.1 Amendment to Section 401 "Satisfaction and Discharge of Indenture".....................10
SECTION 5.2 Amendment to Section 402 "Application of Trust Money"..................................10
Article Six
REMEDIES
SECTION 6.1 Amendment to Section 501 "Events of Default"...........................................10
SECTION 6.2 Amendment to Section 502 "Acceleration of Maturity; Rescission and Annulment"..........11
SECTION 6.3 Amendment to Section 503 "Collection of Indebtedness and Suits for Enforcement by Trustee".11
SECTION 6.4 Amendment to Section 504 "Trustee May File Proofs of Claim"............................11
SECTION 6.5 Amendment to Section 509 "Restoration of Rights and Remedies"..........................11
SECTION 6.6 Amendment to Section 515 "Waiver of Stay or Extension Laws"............................11
Article Seven
THE TRUSTEE
SECTION 7.1 Amendment to Section 603 "Certain Rights of Trustee"...................................11
SECTION 7.2 Amendment to Section 604 "Not Responsible for Recitals or Issuance of Debt Securities".12
SECTION 7.3 Amendment to Section 605 "May Hold Debt Securities or Coupons".........................12
SECTION 7.4 Amendment to Section 606 "Money Held in Trust".........................................12
SECTION 7.5 Amendment to Section 607 "Compensation and Reimbursement"..............................12
SECTION 7.6 Amendment to Section 608 "Disqualification; Conflicting Interests".....................12
SECTION 7.7 Amendment to Section 610 "Resignation and Removal; Appointment of Successor"...........12
SECTION 7.8 Amendment to Section 611 "Acceptance of Appointment by Successor"......................12
SECTION 7.9 Amendment to Section 613 "Preferential Collection of Claims Against Company"...........13
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.1 Amendment to Title of Article..........................................................13
SECTION 8.2 Amendment to Section 701 "Company to Furnish Trustee Names and Addresses of Holders"...13
SECTION 8.3 Amendment to Section 702 "Preservation of Information; Communications to Holders"......13
SECTION 8.4 Amendment to Section 703 "Reports by Trustee"..........................................13
SECTION 8.5 Amendment to Section 704 "Reports by Company"..........................................13
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.1 Amendment to Section 801 "Company May Consolidate, etc.................................14
SECTION 9.2 Amendment to Section 802 "Successor Corporation Substituted"...........................14
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1 Amendment to Section 901 "Supplemental Indentures Without Consent of Holders"..........14
SECTION 10.2 Amendment to Section 902 "Supplemental Indentures with Consent of Holders".............15
SECTION 10.3 Amendment to Section 903 "Execution of Supplemental Indentures"........................15
SECTION 10.4 Amendment to Section 906 "Reference in Debt Securities to Supplemental Indentures".....15
Article Eleven
COVENANTS
SECTION 11.1 Amendment to Section 1002 "Maintenance of Office or Agency"............................15
SECTION 11.2 Amendment to Section 1003 "Money for Debt Securities Payments to Be Held in Trust".....16
SECTION 11.3 Amendment to Section 1009 "Payment of Additional Amounts"..............................16
SECTION 11.4 Amendment to Section 1011 "Waiver of Certain Covenants"................................16
ARTICLE TWELVE
REDEMPTION OF DEBT SECURITIES
SECTION 12.1 Amendment to Section 1103 "Selection by Trustee of Debt Securities to be Redeemed".....16
SECTION 12.2 Amendment to Section 1105 "Deposit of Redemption Price"................................16
SECTION 12.3 Amendment to Section 1106 "Debt Securities Payable on Redemption Date".................17
SECTION 12.4 Amendment to Section 1107 "Debt Security Redeemed in Part".............................17
Article Thirteen
SINKING FUNDS
SECTION 13.1 Amendment to Section 1202 "Satisfaction of Sinking Fund Payments with Debt Securities".17
Article Fourteen
DEFEASANCE
SECTION 14.1 Amendment to Section 1301 "Termination of Company's Obligations".......................17
SECTION 14.2 Amendment to Section 1302 "Repayment to Company".......................................17
SECTION 14.3 Amendment to Section 1303 "Indemnity for Government Obligations".......................18
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 15.1 Amendment to Section 1402 "Call, Notice and Place of Meetings".........................18
SECTION 15.2 Amendment to Section 1403 "Persons Entitled to Vote at Meetings".......................18
SECTION 15.3 Amendment to Section 1405 "Determination of Voting Rights; conduct and Adjournment of Meetings". 18
SECTION 15.4 Amendment to Section 1406 "Counting Votes and Recording Action of Meetings"............18
Article Sixteen
GUARANTEES
SECTION 16.1 New Article Fifteen....................................................................18
SECOND SUPPLEMENTAL INDENTURE, dated as of February 15, 1999, among,
CHRYSLER FINANCIAL COMPANY L.L.C., a Michigan limited liability company (the
979720986"Company"), having its principal place of business at 27777 Franklin
Road, Southfield, Michigan 48034, DAIMLERCHRYSLER AG, a German corporation in
its capacity as guarantor of the securities issued by the Company (the
"Guarantor"), having its principal place of business at Epplestrasse 225,
Stuttgart, Germany, and UNITED STATES TRUST COMPANY OF NEW YORK, a New York
corporation, as successor trustee (the "Trustee"), having its Corporate Trust
Office at 114 West 47th Street, New York, New York 10036, as Trustee under the
Amended and Restated Indenture of the Company dated as of September 15, 1986,
as heretofore amended and supplemented by the First Supplemental Indenture
dated as of October 1, 1998.
RECITALS
WHEREAS, the Indenture provides that the Company and the Trustee may,
without the consent of any Holders, at any time and from time to time, enter
into one or more supplemental indentures, in form satisfactory to the Trustee,
for the purpose of supplementing the provisions of the Indenture with respect
to matters that are not inconsistent with any provision of the Indenture,
provided that such provisions shall not adversely affect the interests of the
Holders of the Debt Securities in any material respect.
WHEREAS, on November 10, 1998, Chrysler Corporation (which later
changed its name to DaimlerChrysler Corporation), the direct parent of the
Company, became a direct, wholly-owned subsidiary of the Guarantor.
WHEREAS, the Company desires to obtain an exemption from the
requirements of filing with the Securities and Exchange Commission an annual
report and such periodic information, documents and other reports as are
required by Sections 13 and 15(d) of the Securities Exchange Act of 1934 with
respect to the Company during and for its current fiscal year and thereafter,
and for that purpose the Company and the Guarantor are willing to supplement
the provisions of the Indenture by adding thereto the Guarantee set forth in
this Second Supplemental Indenture pursuant to Article Nine of the Indenture.
Such Guarantee is for the benefit, and will not adversely affect the interests,
of the Holders of Outstanding Securities.
WHEREAS, the Company and the Guarantor have each duly authorized the
execution and delivery of this Second Supplemental Indenture, and all things
necessary have been done to make this Second Supplemental Indenture a valid
agreement of the Company and the Guarantor, in accordance with its terms.
NOW, THEREFORE, THIS SECOND SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, it
is mutually convenanted and agreed, for the equal and proportionate benefit of
all Holders of the Company's Debt Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of the Indenture and this Second Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
1. The terms defined in this Second Supplemental Indenture have
the meanings assigned to them in this Second Supplemental
Indenture, and include the plural as well as the singular;
2 The words, "herein," "hereof," and "hereunder" and other
words of similar import refer to the Indenture and this
Second Supplemental Indenture as a whole and not to any
particular Article, Section, or other subdivision; and
3. Capitalized terms used herein and not otherwise defined
herein have the meanings ascribed to them in the Indenture.
SECTION 1.2 Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 1.3 Successors and Assigns.
All covenants and agreements in this Second Supplemental Indenture by
the Company and the Guarantor shall bind their successors and assigns, whether
expressed or not.
SECTION 1.4 Severability Clause.
In case any provision in this Second Supplemental Indenture 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 1.5 Benefits of Second Supplemental Indenture.
Nothing in this Second Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder, and the Holders, any benefit or any legal or equitable right,
remedy, or claim under this Second Supplemental Indenture.
SECTION 1.6 Governing Law.
THIS SECOND SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS THOUGH FULLY PERFORMED
THEREIN, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS.
SECTION 1.7 Effectiveness.
This Second Supplemental Indenture shall take effect on the date
hereof and shall amend the provisions of the Indenture with respect to each
series of Debt Securities issued under the Indenture, including each series of
Debt Securities issued under the Indenture prior to the date hereof.
SECTION 1.8 Counterparts.
This Second Supplemental 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 one and the same instrument.
ARTICLE TWO
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Amendment to Section 101 "Definitions".
Section 101 of the Indenture is hereby amended as follows:
(a) The definition of "Board of Directors" is deleted and replaced in
its entirety with the following:
""Board of Directors" means the board of directors, supervisory board,
management board or board of managers or managing directors of the Company or
the Guarantor, as the case may be, or any duly authorized committee of that
board or any director or directors and/or officer or officers of the Company or
the Guarantor to whom that board or committee shall have duly delegated its
authority."
(b) The definition of "Board Resolution" is deleted and replaced in
its entirety with the following:
""Board Resolution" means a copy of a resolution certified by the Secretary, an
Assistant Secretary or a managing director or other officer of the Company or
the Guarantor, as the case may be, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification.
Where any provision of this Indenture refers to action to be taken pursuant to
a Board Resolution (including establishment thereof), such action may be taken
by any committee, officer or employee of the Company or the Guarantor, as the
case may be, authorized to take such action by a Board Resolution (including,
without limitation, in any Officers' Certificate of officers authorized to act
in connection with such matter by or pursuant to such Board Resolution)".
(c) A new definition "Guarantee" is added as follows:
""Guarantee" means any guarantee of the Guarantor with regard to each Debt
Security issued by the Company pursuant to this Indenture and shall include the
Guarantee set forth in Article Sixteen of this Second Supplemental Indenture
and all other obligations and covenants of the Guarantor contained in this
Indenture and any Debt Securities whether issued previous to or after the date
of this Supplemental Indenture."
(d) A new definition "Guarantor" is added as follows:
""Guarantor" means the Person named as the "Guarantor" in the first paragraph
of this Second Supplemental Indenture until a successor shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor."
(e) A new definition "Guarantor Request" and "Guarantor Order" is
added as follows:
""Guarantor Request" and "Guarantor Order" mean a written request or order
signed in the name of the Guarantor by its Chairman of the Board, President, a
Vice President, director, managing director or other authorized officer and by
its Treasurer, Assistant Treasurer, its Secretary, Assistant Secretary,
director, managing director or other authorized officer and delivered to the
Trustee."
(f) The definition of "Officers' Certificate" is deleted and replaced
in its entirety with the following:
""Officers' Certificate" means with respect to the Company or the Guarantor a
certificate of the Company or the Guarantor signed by its Chairman of the
Board, Vice Chairman of the Board, President or an Executive Vice President or
Vice President, director, managing director or other authorized officer, and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary, director, managing director or other
authorized officer of the Company or the Guarantor, as the case may be, and
delivered to the Trustee."
(g) The definition of "Opinion of Counsel" is amended to insert "or
the Guarantor, as the case may be," after "Company" in the first line thereof.
(h) The definition of "Outstanding" is amended to insert "or the
Guarantor, as the case may be," after "Company" in the second line and both
appearances in the third line of clause (ii) and after "Company" in the last
line of clause (iii), and is further amended to insert ", the Guarantor" after
"Company" in the third, fourth, ninth and tenth lines of the remainder of the
definition.
SECTION 2.2 Amendment to Section 102 "Compliance Certificate and Opinions".
Section 102 is amended to insert "or the Guarantor" after "Company" in
the first line of the first paragraph and is further amended to insert "or the
Guarantor, as the case may be," after "Company" in the second line of the first
paragraph.
SECTION 2.3 Amendment to Section 103 "Form of Documents Delivered to Trustee".
Section 103 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first and sixth lines of the second paragraph, and
is further amended to insert "or the Guarantor, as the case may be" after
"Company" in the seventh line of the second paragraph.
SECTION 2.4 Amendment to Section 104 "Acts of Holders".
Section 104 is amended to insert "or the Guarantor or both of them"
after "Company" in the eleventh line of paragraph (a), and is further amended
to insert "and the Guarantor" after "Company" in the fifteenth line of
paragraph (a) and in the eighth line of paragraph (d), and is further amended
to insert "or the Guarantor" after "Company" in the fourth line of paragraph
(f).
SECTION 2.5 Amendment to Section 105 "Notices, etc., to Trustee and Company".
Section 105 is amended to insert ", Guarantor" after "Trustee" in the
title of the Section, and is further amended to insert "or the Guarantor" after
"Company" in the first line of clause (1) and in the first line of clause (2),
and is further amended to insert "or the Guarantor, as the case may be," after
"Company" in the third and fourth lines of clause (2), and is further amended
to replace "instrument" in the last line of clause (2) with "Second
Supplemental Indenture", and is further amended to add a second paragraph as
follows:
"Any request, demand, authorization, direction, notice, consent,
waiver or other action required or permitted under this Indenture
shall be in the English language, and any published notice may also be
in an official language of the country or province of publication."
SECTION 2.6 Amendment to Section 109 "Successors and Assigns".
Section 109 is amended to insert "or the Guarantor" after "Company",
and is further amended to delete "its" and replace it with "their respective,"
and is further amended to insert "so" after "whether."
SECTION 2.7 New Section 114 "Appointment of Agent for Service".
A new Section 114 is added as follows:
"SECTION 114. Appointment of Agent for Service.
By the execution and delivery of this Second Supplemental
Indenture, the Guarantor designates and appoints DaimlerChrysler North
America Holding Corporation, in the Borough of Manhattan, City and
State of New York, as its authorized agent upon which process may be
served in any suit or proceeding arising out of or relating to the
Debt Securities, the Guarantees or this Indenture which may be
instituted in any Federal or New York State Court located in the
Borough of Manhattan, City and State of New York, but for that purpose
only, and agrees that service of process upon said DaimlerChrysler
North America Holding Corporation, directed to the attention of
Treasurer, and written notice of said service given by the Person
serving the same to it, addressed to DaimlerChrysler North America
Holding Corporation, 375 Park Avenue, Suite 3001, New York, New York
10152, shall be deemed in every respect effective service of process
upon it in any such suit or proceeding in any Federal or State court
in such Borough, City and State. The Guarantor hereby submits (for the
purposes of any such suit or proceeding) to the jurisdiction of any
such court in which any such suit or proceeding is so instituted, and
irrevocably waives, to the fullest extent it may lawfully do so, any
objection it may have now or hereafter to the laying of the venue of
any such suit, action or proceeding in any such court and irrevocably
waives, to the fullest extent it may lawfully do so, any claim that
any such suit, action or proceeding brought in any such court has been
brought in an inconvenient forum. Such submission and waiver shall be
irrevocable so long as any of the Debt Securities remain outstanding
and such appointment shall be irrevocable until the appointment of a
successor by the Guarantor, with the consent of the Trustee and such
successor's acceptance of such appointment. Upon such acceptance, the
Guarantor shall notify the Trustee, in writing, of the name and
address of such successor. The Guarantor further agrees to take any
and all action, including the execution and filing of any and all such
documents and instruments, as may be necessary to continue such
designation and appointment of said DaimlerChrysler North America
Holding Corporation or its successor in full force and effect so long
as any of the applicable Debt Securities shall be outstanding. The
Trustee shall not be obligated and shall have no responsibility with
respect to any failure by the Guarantor to take any such action above.
The Guarantor agrees to the fullest extent that it lawfully
may do so, that final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon the
Guarantor and may be enforced in the courts of Germany (or any other
courts to the jurisdiction of which the Guarantor is subject) by a
suit upon such judgment, provided that service of process is effected
upon the Guarantor in the manner specified in the foregoing paragraph
or as otherwise permitted by law; provided, however, that the
Guarantor does not waive, and the foregoing provisions of this
sentence shall not constitute or be deemed to constitute a waiver of,
(1) any right to appeal any such judgment, to seek any stay or
otherwise to seek reconsideration or review of any such judgment, (2)
any stay of execution or levy pending an appeal from, or a suit,
action or proceeding for reconsideration of, any such judgment, (3)
any defense to a claim for punitive damages and the like, (4) the
defense of payment, or (5) any other right or remedy of the Guarantor
to the extent not expressly waived in accordance with this Section
114.
Nothing in this Section shall affect the right of the Trustee
or any Holder of any Debt Security to serve process in any manner
permitted by applicable law or limit the right of the Trustee or any
Holder of any Debt Security to bring proceedings against the Company
and/or the Guarantor, in the courts of any other jurisdiction or
jurisdictions."
SECTION 2.8 Applicability of Inclusion of References to Guarantor.
Notwithstanding any provision hereof to the contrary, references to
the Guarantor in Article Five and in Articles Eight through Fifteen of the
Indenture shall only be considered to be included in the Indenture and shall
only be applicable in connection with any Debt Securities issued after February
15, 1999.
ARTICLE THREE
DEBT SECURITY FORMS
SECTION 3.1 Amendment to Section 201 "Forms Generally".
Section 201 is amended to insert the following paragraphs after the
first paragraph:
"For Debt Securities issued after the date hereof, the Guarantee shall
be endorsed on each Debt Security and such Guarantee for the Debt Securities of
a particular series shall be in such form as is established pursuant to Section
202.
Outstanding Debt Securities issued prior to the date hereof shall be
Guaranteed pursuant to the terms of Article Sixteen hereof and no endorsement,
authentication or other evidence of such Guarantee shall be necessary on any
Outstanding Debt Security and no separate Guarantee need be executed and
delivered by the Guarantor to the Holder of an Outstanding Debt Security."
SECTION 3.2 Amendment to Section 202 "Forms of Debt Securities".
Section 202 is amended to insert "and Guarantees" after "Securities"
in the title to the Section and is further amended to insert the following
paragraph after the first paragraph of the Section:
"Except for Outstanding Debt Securities issued prior to the date
hereof, which shall be Guaranteed as set forth in Section 201 hereof, the
Guarantee of the Guarantor shall be endorsed on each Debt Security and for each
particular series of Debt Securities shall be in substantially such form or
forms as shall be established by or pursuant to a Board Resolution (including,
without limitation, in any Officers' Certificate of an officer authorized to
act in connection with such matter or pursuant to such Board Resolution) of the
Guarantor or an indenture supplemental hereto, with such appropriate
insertions, omissions, substitutions and other corrections as are required or
permitted by this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Guarantees. Such execution of such Guarantees shall be
conclusive evidence as regards the Guarantor as to any such determination made
by the Guarantor."
ARTICLE FOUR
THE DEBT SECURITIES
SECTION 4.1 Amendment to Section 301 "Amount Unlimited; Issuable in Series".
Section 301 is amended to insert "and related Guarantees" after "Debt
Securities" in the first line of the second paragraph.
SECTION 4.2 Amendment to Section 303 "Execution, Authentication, Delivery and
Dating".
Section 303 is amended to insert "from the Company and the Guarantor"
after "receive" in the seventh line of the third paragraph and is further
amended to add "and the related Guarantee" after "Debt Securities" in the ninth
line of the third paragraph and is further amended to add "by the Company and
the Guarantor, respectively" after "approved" in the ninth line of the third
paragraph, and is further amended to add "and the Guarantor" after "Company" in
the first line of clause (1), in the third, fourth and fifth lines of clause
(4), in the second and third lines of clause (5), and in all three places in
the fourth line of clause (5), and is further amended to insert "and the
related Guarantees" after "coupons" in the second line of clause (1), the first
line of clause (2), the first line of clause (3), the first line of clause (4)
and the first and second lines of clause (5), after "Debt Securities" in the
fourth line of clause (1), and is further amended to insert "including the
Guarantee," after "Indenture" in the fifth line of clause (5), and is further
amended to insert "or the Guarantee endorsed thereon" after "thereto" in the
first line of the last paragraph, and is further amended to insert a new
paragraph at the end of the Section as follows: "Reference is made to Section
1502 concerning the execution and delivery of the Guarantees."
SECTION 4.3 Amendment to Section 304 "Temporary Debt Securities".
Section 304 is amended to insert "and each having endorsed thereon the
Guarantee executed by the Guarantor, substantially of the tenor of the
definitive Guarantee" after "without coupons," in the fifth line of the first
paragraph, and is further amended to insert "and such Guarantees" after
"coupons" in both places in the seventh line of the first paragraph, and is
further amended to insert ", having endorsed thereon Guarantees executed by the
Guarantor" after "tenor" in the ninth line of the second paragraph.
SECTION 4.4 Amendment to Section 305 "Registration; Registration of Transfer
and Exchange".
Section 305 is amended to insert "Guarantor and the" after "by the" in
the last line of the first paragraph, and is further amended to insert ", each
having endorsed thereon the Guarantee executed by the Guarantor" after "amount"
in the last line of the second paragraph and in the third line of the fourth
paragraph, and after "receive" in the last line of the fifth paragraph, and is
further amended by adding ", the Guarantor shall guarantee" after "execute" in
the first line of the fifth paragraph, and is further amended to insert "and
the Guarantor" after "Company" in the second line in the sixth paragraph.
SECTION 4.5 Amendment to Section 306 "Mutilated, Destroyed, Lost and Stolen
Debt Securities".
Section 306 is amended to insert ", the Guarantor" after "Company" in
the second, third and fifth lines of the first paragraph, and is further
amended to insert ", having endorsed thereon the Guarantee executed by the
Guarantor" after "principal amount" in the tenth line of the first paragraph,
and is further amended to delete "in its discretion" in the second line of the
second paragraph and replace it with: "and the Guarantor in their discretion,"
and is further amended to insert "and the Guarantee endorsed thereon" after "if
any," in the first line of the fourth paragraph, and is further amended to
insert "and the Guarantor, respectively" after "Company" in the third line of
the fourth paragraph, and is further amended to insert "and the Guarantee
endorsed thereon, if any," after "if any," in the last line of the fourth
paragraph.
SECTION 4.6 Amendment to Section 307 "Payment of Interest; Interest Rights
Preserved".
Section 307 is amended to insert "or the Guarantor, as the case may
be" after "Company" in the fourth line of the second paragraph and in the
eighteenth line of clause (1), and is further amended to insert "or the
Guarantor, as the case may be," in the first, fourth, sixth, thirteenth and
fifteenth lines of clause (1) and in the first and fourth lines of clause (2).
SECTION 4.7 Amendment to Section 308 "Persons Deemed Owners".
Section 308 is amended to insert "the Guarantor," after "Company" in
the first, second, fifth and last lines of the first paragraph and the first
line (both places), fourth, and last lines of the second paragraph.
SECTION 4.8 Amendment to Section 309 "Cancellation".
Section 309 is amended to insert "or the Guarantor" after "Company" in
the third and fifth lines of the first paragraph and is further amended to
insert "and the Guarantor" after the first appearance of "Company" in the ninth
line of the first paragraph.
SECTION 4.9 Amendment to Section 311 "Payment in Currencies".
Section 311 is amended to insert ", the Guarantor" after "Company" in
the fourth line of paragraph (e).
SECTION 4.10 Amendment to Section 313 "Judgments".
Section 313 is amended to delete "covenants" and replace it with "and
the Guarantor covenant," and is further amended to insert "or the Guarantor"
after "Company" in the second appearance in the first line of the first
paragraph, and is further amended to insert "and any Guarantees" after
"appurtenant coupons" in the second line of the first paragraph, and is further
amended to insert "or such Guarantees" after "Securities" in the sixth line and
after "appurtenant coupons" in the eighth line of the first paragraph, and is
further amended to insert "or the Guarantor, as the case may be," after
"Company" in the sixth, fifteenth and sixteenth lines of the first paragraph.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.1 Amendment to Section 401 "Satisfaction and Discharge of
Indenture".
Section 401 is amended to insert "or the Guarantor" after "Company" in
both places in the ninth line of paragraph (1)(A), in the seventh line of
paragraph (1)(B), in both places in the first line of clause (2), in the first
line of clause (3) and in the first line of the last sentence of the Section.
SECTION 5.2 Amendment to Section 402 "Application of Trust Money".
Section 402 is amended to insert "or the Guarantor" after "Company"
in the fourth line of the first paragraph.
ARTICLE SIX
REMEDIES
SECTION 6.1 Amendment to Section 501 "Events of Default".
Section 501 is amended to insert "or the Guarantor" after "Company" in
the first line of clause (4), in the first and fourth lines of clause (6), and
in the first, fifth and seventh lines of clause (7), and is further amended to
insert "and the Guarantor" after "Company" in the fifth line of clause (4), and
is further amended to insert ", the Guarantor" after "Company" in the sixth
line of clause (4), and is further amended to replace "by it" in the third,
fifth and sixth lines of clause (7) with "by the Company or the Guarantor".
SECTION 6.2 Amendment to Section 502 "Acceleration of Maturity; Rescission and
Annulment".
Section 502 is amended to insert "and the Guarantor" after "Company"
in the sixth line of the first paragraph, and is further amended to insert ",
the Guarantor" after "Company" in the fourth line of the second paragraph, and
is further amended to insert "or the Guarantor" after "Company" in the first
line of clause (1).
SECTION 6.3 Amendment to Section 503 "Collection of Indebtedness and Suits
for Enforcement by Trustee".
Section 503 is amended to insert "and the Guarantor each," after
"Company" in the first line of the first paragraph, and is further amended to
insert "and the Guarantor" after "Company" in the seventh line of the first
paragraph and in the fourth and fifth lines of the second paragraph, and is
further amended to insert "or the Guarantor, as the case may be," after
"Company" in the first line of the second paragraph.
SECTION 6.4 Amendment to Section 504 "Trustee May File Proofs of Claim".
Section 504 is amended to insert ", the Guarantor" after "Company" in
the third and fourth lines of the first paragraph, and is further amended to
insert "or the Guarantor" after "Company" in the seventh line of the first
paragraph.
SECTION 6.5 Amendment to Section 509 "Restoration of Rights and Remedies".
Section 509 is amended to insert ", the Guarantor" after "Company" in
the third line of the first paragraph.
SECTION 6.6 Amendment to Section 515 "Waiver of Stay or Extension Laws".
Section 515 is amended to insert "and the Guarantor each" after
"Company" in the first and fourth lines of the first paragraph.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.1 Amendment to Section 603 "Certain Rights of Trustee".
Section 603 is amended to insert "or the Guarantor" after "Company" in
the first line of clause (b), and is further amended by inserting "or a
Guarantor Request or Guarantor Order" after "Order" in the second line of
clause (b), and is further amended by inserting "of the Company or the
Guarantor" after "Directors" in the second line of clause (b) , and it is
further amended to insert "or the Guarantor or both of them" after "Company" in
the sixth line of clause (f).
SECTION 7.2 Amendment to Section 604 "Not Responsible for Recitals or
Issuance of Debt Securities".
Section 604 is amended to insert "or the Guarantor, as the case may
be" after "Company" in the second line of the first paragraph, and is further
amended to insert "or of the Guarantees" after "coupons" in the fourth line of
the first paragraph.
SECTION 7.3 Amendment to Section 605 "May Hold Debt Securities or Coupons".
Section 605 is amended to insert "or the Guarantor" after "Company" in
the first line of the first paragraph, and is further amended to insert "or the
Guarantor, as the case may be," after "Company" in the third line of the first
paragraph.
SECTION 7.4 Amendment to Section 606 "Money Held in Trust".
Section 606 is amended to insert "or the Guarantor, as the case may
be" after "Company" in the last line of the first paragraph.
SECTION 7.5 Amendment to Section 607 "Compensation and Reimbursement".
Section 607 is amended to insert "and the Guarantor each, jointly and
severally," after "Company" in the first line of the first paragraph, and is
further amended to insert "and the Guarantor" after "Company" in the first line
of the last paragraph.
SECTION 7.6 Amendment to Section 608 "Disqualification; Conflicting Interests".
Section 608 is amended to insert "(including the Guarantor)" after
"obligor" in clause (5) of paragraph (d).
SECTION 7.7 Amendment to Section 610 "Resignation and Removal; Appointment of
Successor".
Section 610 is amended to insert "and the Guarantor" after "Company"
in the second line of paragraph (b), and is further amended to insert ", the
Guarantor" after "Trustee" in the last line of paragraph (c), and is further
amended to insert "or the Guarantor" after "Company" in the second line of
paragraph (d)(1) and in the second line of paragraph (d)(2), and is further
amended to insert ", the Guarantor" after "Company" in the tenth line of
paragraph (e).
SECTION 7.8 Amendment to Section 611 "Acceptance of Appointment by Successor".
Section 611 is amended to insert ", the Guarantor" after "Company" in
the second and sixth lines of paragraph (a), and the second and twentieth lines
of paragraph (b), and is further amended to insert "and the Guarantor" after
"Company" in the first line of paragraph (c).
SECTION 7.9 Amendment to Section 613 "Preferential Collection of Claims
Against Company".
Section 613 is amended to insert "(including the Guarantor)" after
"obligor" in paragraph (c)(5).
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.1 Amendment to Title of Article.
The title of the Article is amended to insert ", GUARANTOR" after
"TRUSTEE."
SECTION 8.2 Amendment to Section 701 "Company to Furnish Trustee Names and
Addresses of Holders".
Section 701 is amended to insert "and the Guarantor" after "Company"
in the title of the Section and in the first line of paragraph (a), and is
further amended to insert "or the Guarantor" after "Company" in the second line
of paragraph (b).
SECTION 8.3 Amendment to Section 702 "Preservation of Information;
Communications to Holders".
Section 702 is amended to insert ", the Guarantor" after "Company" in
both places in the second line of paragraph (c).
SECTION 8.4 Amendment to Section 703 "Reports by Trustee".
Section 703 is amended to insert "and the Guarantor" after "Company"
in the first line of paragraph (a) (3), and is further amended to insert "and
the Guarantor" after the first use of "Company" in the third line of paragraph
(d).
SECTION 8.5 Amendment to Section 704 "Reports by Company".
Section 704 is amended to insert "and the Guarantor" after "Company"
in the title of the Section and in the first line of the first paragraph, and
is further amended to insert "or the Guarantor" after "Company" in the first,
fourth and fifth lines of clause (1), and is further amended to insert the
following after "regulations;" in the last line of clause (1):
"provided that no such supplementary and periodic information,
documents and reports need to be filed by the Company if, pursuant to
the rules and regulations of the Commission, it is exempt from such
filing requirements by virtue of the existence of the Guarantees;"
and is further amended to insert "or the Guarantor, or both," after
"Company" in the third line of clause (2), and is further amended to insert "or
the Guarantor, as the case may be," after "Company" in the fourth line of
clause (3).
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.1 Amendment to Section 801 "Company May Consolidate, etc.,
Only on Certain Terms".
Section 801 is amended to insert "and Guarantor" after "Company" in
the title of the Section, and is further amended to add a new final paragraph
as follows:
"The Guarantor may merge with or into any corporation or sell,
transfer, lease or convey all or substantially all of its assets
substantially as an entirety to any corporation; provided that (a) the
corporation formed by such merger or consolidation or the corporation
which acquired such assets expressly assumes all of the obligations of
the Guarantor hereunder (including the additional amounts, if any, as
set forth in Section 1009 and Article Fifteen), and (b) immediately
after giving effect to such transaction, no Event of Default with
respect to such Debt Securities and no event which, after notice or
lapse of time or both, would become an Event of Default with respect
to such Debt Securities, shall have occurred and be continuing."
SECTION 9.2 Amendment to Section 802 "Successor Corporation Substituted".
Section 802 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the second, third, fifth and sixth lines of the first
paragraph.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1 Amendment to Section 901 "Supplemental Indentures Without Consent
of Holders".
Section 901 is amended to insert "and the Guarantor" after "Company in
the first line of the first paragraph, and is further amended to insert "or the
Guarantor," after "Company" in the first and second lines of clause (1) and the
first and last lines of clause (2), and is further amended to insert "or the
Guarantees" after "Debt Securities" in the second line of clause (1), and is
further amended by deleting "contained" at the end of clause (1), and is
further amended to insert "or related Guarantee, if any" after "coupons" in the
second line of clause (2), and is further amended to insert "or related
Guarantee, if any," after "coupons" in the third line of clause (2), and is
further amended to insert "and related Guarantee, if any" after "Securities" in
the second line of clause (3), and is further amended to insert "and related
Guarantee, if any," after "Securities" in the fifth line of clause (4), the
first line of clause (6), the second line of clause (7), in clause (8) and in
the last line of clause (9), and is further amended to insert "(and related
Guarantee)" after "Security" in the second line of clause (5).
SECTION 10.2 Amendment to Section 902 "Supplemental Indentures with Consent of
Holders".
Section 902 is amended to insert ", the Guarantor" after "Company" in
the second line of the first paragraph, and is further amended to insert "and
the Guarantor" after "Company" in the third line of the first paragraph, and is
further amended to insert "not" after "shall" in the seventh line of the first
paragraph, and is further amended to add a new clause (4) as follows:
"(4) change in any manner adverse to the interests of the Holders of
any Outstanding Debt Securities the terms and conditions of the
obligations of the Guarantor in respect of the due and punctual
payment of the principal thereof (and premium, if any) and interest,
if any, thereon or any additional amounts or any sinking fund payments
provided in respect thereof."
SECTION 10.3 Amendment to Section 903 "Execution of Supplemental Indentures".
Section 903 is amended to insert "and the Guarantor" after "Company"
in the fifth line of the first paragraph.
SECTION 10.4 Amendment to Section 906 "Reference in Debt Securities to
Supplemental Indentures".
Section 906 is amended to insert "and the Guarantor" after "Company"
in the third line of the first paragraph, and is further amended to insert "of
the Company and the Guarantor" after "Directors" in the fifth line of the first
paragraph, and is further amended to insert ", the Guarantees may be executed
by the Guarantor" after "Company" in the sixth line of the first paragraph.
ARTICLE ELEVEN
COVENANTS
SECTION 11.1 Amendment to Section 1002 "Maintenance of Office or Agency".
Section 1002 is amended to insert "and the Guarantor" after "Company"
in the first line of the first paragraph, and is further amended to delete
"hereby appoints" and replace it with "and Guarantor hereby appoint" in the
twenty-second line of the first paragraph, and is further amended to insert "or
the Guarantor" after "Company" in the fifth, sixth, thirteenth, fifteenth and
sixteenth lines of the first paragraph, the second line of the second
paragraph, and the first, fifth and sixth lines of the third paragraph.
SECTION 11.2 Amendment to Section 1003 "Money for Debt Securities Payments
to Be Held in Trust".
Section 1003 is amended to insert "or the Guarantor" after "Company"
in the first line of the first paragraph and in the first, fifth and eighth
lines of the last paragraph, and is further amended to insert "and the
Guarantor" after "Company" in the first line of the second paragraph, and is
further amended to delete "it will" from the second line of the second
paragraph and replace it with: "the Company will," and is further amended to
delete "shall be paid to the Company on Company Request" in the fourth line of
the last paragraph and to replace it with: "shall be paid to the Company or the
Guarantor, as the case may be, on a Company Request or a Guarantor Request, as
the case may be," in the fourth line of the last paragraph and is further
amended to insert the letter "s" at the end of "trust" in the fifth line of the
last paragraph, and is further amended to insert "(or to the Guarantor pursuant
to its Guarantee)" after "Company" in the sixth line of the last paragraph, and
is further amended to insert "or the Guarantor, as the case may be" after
"Company" in the last line of the last paragraph.
SECTION 11.3 Amendment to Section 1009 "Payment of Additional Amounts".
Section 1009 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first line of the first paragraph and in the sixth
and thirteenth lines of the second paragraph, and is further amended to insert
"and the Guarantor each " after "Company" in the fifteenth line of the second
paragraph.
SECTION 11.4 Amendment to Section 1011 "Waiver of Certain Covenants".
Section 1011 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first line of the first paragraph, and is further
amended to insert "and the Guarantor, as the case may be," after "Company" in
the seventh line of the first paragraph.
ARTICLE TWELVE
REDEMPTION OF DEBT SECURITIES
SECTION 12.1 Amendment to Section 1103 "Selection by Trustee of Debt
Securities to be Redeemed".
Section 1103 is amended to insert "and the Guarantor" after "Company"
in the first line of the second paragraph.
SECTION 12.2 Amendment to Section 1105 "Deposit of Redemption Price".
Section 1105 is amended to insert "or the Guarantor" after "Company"
in the first and second lines of the first paragraph.
SECTION 12.3 Amendment to Section 1106 "Debt Securities Payable on Redemption
Date".
Section 1106 is amended to insert "and the Guarantor" after "Company"
in the third line of the first paragraph.
SECTION 12.4 Amendment to Section 1107 "Debt Security Redeemed in Part".
Section 1107 is amended to insert ", each having endorsed thereon the
Guarantee executed by the Guarantor" after "surrendered" in the eighth line of
the first paragraph.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.1 Amendment to Section 1202 "Satisfaction of Sinking Fund Payments
with Debt Securities".
Section 1202 is amended to insert "or the Guarantor" after "Company"
in the first line of the first paragraph.
ARTICLE FOURTEEN
DEFEASANCE
SECTION 14.1 Amendment to Section 1301 "Termination of Company's Obligations".
Section 1301 is amended to delete "Company's" from the title of the
Section, and is further amended to insert "or the Guarantor, as the case may
be," after "Company" in the first and eighth lines of the first paragraph, and
the third line of the third paragraph and is further amended to insert "and the
Guarantor's" after "Company's" in the third line of the first paragraph, the
second line of the third paragraph, and the second line of the last paragraph,
and is further amended to insert "or Guarantor Request, as the case may be"
after "Request" in the first line of the last paragraph.
SECTION 14.2 Amendment to Section 1302 "Repayment to Company".
Section 1302 is amended to insert "or the Guarantor" after "Company"
in the title of the Section, and is further amended to insert "or Guarantor
Request" after "Request" in the first line of the first paragraph and the first
line of the second paragraph, and is further amended to insert "or the
Guarantor, as the case may be," after "Company" in the first use in the first
line of the first paragraph, the first use in the first line in the second
paragraph, the fourth line of the second paragraph and the last line of the
second paragraph.
SECTION 14.3 Amendment to Section 1303 "Indemnity for Government Obligations".
Section 1303 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first line of the first paragraph.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 15.1 Amendment to Section 1402 "Call, Notice and Place of Meetings".
Section 1402 is amended to insert "or the Guarantor" after "Company"
in the first line of paragraph (b), and is further amended to insert ", the
Guarantor" after "Company" in the seventh line of paragraph (b).
SECTION 15.2 Amendment to Section 1403 "Persons Entitled to Vote at Meetings".
Section 1403 is amended to insert ", any representatives of the
Guarantor and its counsel" after "Trustee and its counsel" in the sixth line of
the first paragraph.
SECTION 15.3 Amendment to Section 1405 "Determination of Voting Rights;
conduct and Adjournment of Meetings".
Section 1405 is amended to insert ", the Guarantor" after "Company" in
the second and third lines of paragraph (b).
SECTION 15.4 Amendment to Section 1406 "Counting Votes and Recording Action of
Meetings".
Section 1406 is amended to insert ", one such copy shall be delivered
to the Guarantor" after "Company" in the thirteenth line of the first
paragraph.
ARTICLE SIXTEEN
GUARANTEES
SECTION 16.1 New Article Fifteen.
"ARTICLE FIFTEEN
GUARANTEES
The provisions of this Article shall be applicable to all Debt
Securities whether issued previous to or after the date of this Second
Supplemental Indenture.
SECTION 1501. Guarantee.
The Guarantor hereby irrevocably and unconditionally guarantees to
each Holder of any Debt Security issued under this Indenture by the Company,
and to the Trustee on behalf of each such Holder, the due and punctual payment
of the principal of (and premium, if any, on) and interest, if any, on each
such Debt Security (including any additional amounts payable in accordance with
the terms of any such Debt Security and this Indenture) and the due and
punctual payment of any sinking fund payments provided for pursuant to the
terms of any such Debt Security when and as the same shall become due and
payable, whether at the Stated Maturity, if any, by declaration of
acceleration, call for redemption, request for redemption, repayment at the
option of the Holder or otherwise, in accordance with the terms of such Debt
Security and of this Indenture. In case of the failure of the Company
punctually to make any such payment of principal (or premium, if any) or
interest, if any, (including any additional amounts as referred to above) or
sinking fund payment, the Guarantor hereby agrees to cause any such payment to
be made punctually when and as the same shall become due and payable, whether
at the Stated Maturity, if any, by declaration of acceleration, call for
redemption, request for redemption, repayment at the option of the Holder or
otherwise, and as if such payment were made by the Company.
The Guarantor will pay to the Holder of such Debt Security such
additional amounts as may be necessary in order that every net payment of the
principal of (and premium, if any, on) and interest, if any, on such Debt
Security after deduction or other withholding for or on account of any present
or future tax, assessment, duty or other governmental charge of any nature
whatsoever imposed, levied or collected by or on behalf of the country in which
the Guarantor is organized or any political subdivision or taxing authority
thereof or therein having power to tax, will not be less than the amount
provided for in such Debt Security to be then due and payable; provided,
however, that the foregoing obligation to pay additional amounts will not apply
on account of any tax, assessment, duty or other governmental charge which is
payable (a) otherwise than by deduction or withholding from payments of
principal of (or premium, if any, on) or interest, if any, on such Debt
Security; or (b) by reason of the Holder having, or having had, some personal
or business connection with the country in which the Guarantor is organized and
not merely by reason of the fact that payments are, or for the purposes of
taxation are deemed to be, from sources in, or secured in, the country in which
the Guarantor is organized; or (c) by reason of a change in law or official
practice of any relevant taxing authority that becomes effective on or after
the date hereof for payment of principal (or premium, if any), or interest, if
any, in respect of such Debt Security; or (d) by reason of any estate, excise,
inheritance, gift, sales, transfer, wealth, personal property tax or any
similar assessment or governmental charge; or (e) as a result of the failure of
the Holder to satisfy any statutory requirements or make a declaration of
nonresidence or other similar claim for exemption to the relevant tax
authority; or (f) owing to any combination of clauses (a) through (e) above.
The Guarantor hereby agrees that its obligations hereunder shall be as
if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of the validity, regularity or enforceability of
any such Debt Security, this Indenture or this guarantee, the absence of any
action to enforce the same, any waiver or consent by the Holder of any such
Debt Security or by the Trustee or the Paying Agent with respect to any
provisions thereof or of this Indenture or this guarantee, the existence of any
judgment against the Company, as the Company, or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Debt Security or the indebtedness evidenced thereby or with respect to any
sinking fund payment required pursuant to the terms of any such Debt Security
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by complete performance of all of the obligations of the
Guarantor contained in this Indenture and any such Debt Securities and in the
Guarantees. If the Trustee or the Holder of any such Debt Security is required
by any court or otherwise to return (and does so return) to the Company or the
Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or
other similar official acting in relation to the Company or the Guarantor, any
amount paid to the Trustee or such Holder in respect of any such Debt Security,
this Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. The Guarantor further agrees, to the fullest extent that
it lawfully may do so, that, as between the Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, the Maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 502 hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition extant under any applicable bankruptcy, insolvency, reorganization
or other similar law of the United States or Germany or any other applicable
country or jurisdiction preventing such acceleration in respect of the
obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the Holders of such
Debt Securities of a particular series against the Company in respect of any
amounts paid to such Holders by the Guarantor pursuant to the provisions of the
Guarantees under this Indenture; provided however, that the Guarantor shall not
be entitled to receive any payments arising out of the subrogation from the
Company (i) while any Event of Default shall have occurred and be continuing
with respect to any Debt Securities issued by the Company under Sections
501(l), 501(2), 501(3), 501(5), 501(6), or 501(4) (but only to the extent such
Event of Default under Section 501(4) arises out of a default by the Company
under the covenants set forth in Sections 1001, 1004 or 1009),or (ii) any
default (which with the passage of time would become an Event of Default) with
respect to any Debt Securities issued by the Company, under Section 501(1) or
501(2) shall have occurred and be continuing.
SECTION 1502. Execution and Delivery of Guarantees.
Outstanding Debt Securities issued prior to the date hereof shall be
guaranteed pursuant to the terms of Section 1501 hereof and no endorsement,
authentication or other evidence of such Guarantee shall be necessary on any
such Outstanding Debt Security and no separate Guarantee need be executed and
delivered by the Guarantor to the Holder of a Debt Security Outstanding on the
date hereof.
To evidence its Guarantee provided in Section 1501 for Debt Securities
issued after the date hereof, the Guarantor hereby agrees to execute the
Guarantee, in a form established pursuant to Section 202, to be endorsed on
each Debt Security issued hereunder by the Company and authenticated and
delivered by the Paying Agent. Each such Guarantee shall be executed on behalf
of the Guarantor by any two of its authorized representatives. The signature of
any authorized representative on each Guarantee may be manual or facsimile.
Any Guarantee bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Guarantor shall
bind the Guarantor, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of the
Debt Securities upon which any such Guarantee is endorsed or did not hold such
offices at the date of such Debt Securities.
The delivery of any such Debt Security by the Paying Agent, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee. The Guarantor hereby agrees that its Guarantee set forth in Section
1501 shall remain in full force and effect notwithstanding any failure to
endorse on each such Security a notation of such Guarantee."
IN WITNESS WHEREOF, the parties hereby have caused this Second
Supplemental Indenture to be duly executed, and their respective seals to be
hereunto affixed and attested all as of the day and year first above written.
CHRYSLER FINANCIAL COMPANY L.L.C.
By: /s/ D.M. Cantwell
Name: D.M. Cantwell
Title: Vice President and Treasurer
[Seal]
Attest:
/s/ B.C. Babbish
Name: B.C. Babbish
Title: Assistant Secretary
DAIMLERCHRYSLER AG,
as Guarantor
By: /s/ Horst Eidermuller
Name: Horst Eidermuller
Title: Vice President
By: /s/ Siegfried Schwung
Name: Siegfried Schwung
Title: Associate General Counsel
UNITED STATES TRUST COMPANY OF
NEW YORK, as successor Trustee
By: /s/ Patricia Stermer
Name: Patricia Stermer
Title: Assistant Vice President
[Seal]
Attest:
/s/ Jason G. Gregory
Name: Jason G. Gregory
Title: Assistant Secretary
STATE OF MICHIGAN )
) ss.:
COUNTY OF OAKLAND )
On this 9th day of February, 1999, before me appeared D. M. Cantwell,
to me personally known, who, being by me duly sworn, did say that he is the
Vice President and Treasurer of CHRYSLER FINANCIAL COMPANY L.L.C., one of the
parties described in and which executed the above instrument, and that the seal
affixed to such instrument is the seal of such company, and that such
instrument was signed and sealed on behalf of such company by authority of its
Managers, and such Vice President and Treasurer acknowledged such instrument to
be the free act and deed of such company.
/s/ Juanita M. Hedrick
[NOTARIAL SEAL] Notary Public, Wayne County, MI
My Commission Expires
February 27, 2003
STATE OF NEW YORK )
) ss.:
COUNTY OF NEW YORK )
On this 9th day of February, 1999, before me appeared Patricia Stermer
to me personally known, who, being by me duly sworn, did say that he or she is
Assistant Vice President of UNITED STATES TRUST COMPANY OF NEW YORK, one of the
parties described in and which executed the above instrument, and that he or
she knows the corporate seal of such company, and that the seal affixed to such
instrument is such company seal; and that it was so affixed pursuant to
authority of the Board of Directors of such company, and that he or she signed
his or her name thereto pursuant to like authority.
/s/ Christine C. Collins
[NOTARIAL SEAL] Notary Public, State of New York
No. 03-4624735
Qualified Bronx County
Commission Expires March 30, 2000
Exhibit 4.3
CHRYSLER FINANCIAL COMPANY L.L.C.
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS SUCCESSOR TRUSTEE
-------------------
FIFTH SUPPLEMENTAL INDENTURE
DATED AS OF FEBRUARY 15, 1999
SUPPLEMENT TO INDENTURE
DATED AS OF FEBRUARY 15, 1988
SENIOR DEBT SECURITIES
GUARANTEE BY DAIMLERCHRYSLER AG
Table of Contents
Page
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 Definitions.............................................................................2
SECTION 1.2 Effect of Headings......................................................................2
SECTION 1.3 Successors and Assigns..................................................................2
SECTION 1.4 Severability Clause.....................................................................2
SECTION 1.5 Benefits of Fifth Supplemental Indenture................................................3
SECTION 1.6 Governing Law...........................................................................3
SECTION 1.7 Effectiveness...........................................................................3
SECTION 1.8 Counterparts............................................................................3
ARTICLE TWO
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 2.1 Amendment to Section 101 "Definitions"..................................................3
SECTION 2.2 Amendment to Section 102 "Compliance Certificate and Opinions"..........................5
SECTION 2.3 Amendment to Section 103 "Form of Documents Delivered to Trustee".......................5
SECTION 2.4 Amendment to Section 104 "Acts of Holders"..............................................5
SECTION 2.5 Amendment to Section 105 "Notices, etc., to Trustee and Company"........................5
SECTION 2.6 Amendment to Section 109 "Successors and Assigns".......................................6
SECTION 2.7 New Section 114 "Appointment of Agent for Service"......................................6
SECTION 2.8 Applicability of Inclusion of References to Guarantor...................................7
ARTICLE THREE
DEBT SECURITY FORMS
SECTION 3.1 Amendment to Section 201 "Forms Generally"..............................................7
SECTION 3.2 Amendment to Section 202 "Forms of Debt Securities".....................................8
ARTICLE FOUR
THE DEBT SECURITIES
SECTION 4.1 Amendment to Section 301 "Amount Unlimited; Issuable in Series".........................8
SECTION 4.2 Amendment to Section 303 "Execution, Authentication, Delivery and Dating"...............8
SECTION 4.3 Amendment to Section 304 "Temporary Debt Securities"....................................9
SECTION 4.4 Amendment to Section 305 "Registration; Registration of Transfer and Exchange"..........9
SECTION 4.5 Amendment to Section 306 "Mutilated, Destroyed, Lost and Stolen Debt Securities"........9
SECTION 4.6 Amendment to Section 307 "Payment of Interest; Interest Rights Preserved"...............9
SECTION 4.7 Amendment to Section 308 "Persons Deemed Owners".......................................10
SECTION 4.8 Amendment to Section 309 "Cancellation"................................................10
SECTION 4.9 Amendment to Section 311 "Payment in Currencies".......................................10
SECTION 4.10 Amendment to Section 313 "Judgments"...................................................10
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.1 Amendment to Section 401 "Satisfaction and Discharge of Indenture".....................10
SECTION 5.2 Amendment to Section 402 "Application of Trust Money"..................................10
ARTICLE SIX
REMEDIES
SECTION 6.1 Amendment to Section 501 "Events of Default"...........................................11
SECTION 6.2 Amendment to Section 502 "Acceleration of Maturity; Rescission and Annulment"..........11
SECTION 6.3 Amendment to Section 503 "Collection of Indebtedness and Suits for Enforcement by Trustee".11
SECTION 6.4 Amendment to Section 504 "Trustee May File Proofs of Claim"............................11
SECTION 6.5 Amendment to Section 509 "Restoration of Rights and Remedies"..........................11
SECTION 6.6 Amendment to Section 515 "Waiver of Stay or Extension Laws"............................11
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.1 Amendment to Section 603 "Certain Rights of Trustee"...................................12
SECTION 7.2 Amendment to Section 604 "Not Responsible for Recitals or Issuance of Debt Securities".12
SECTION 7.3 Amendment to Section 605 "May Hold Debt Securities or Coupons".........................12
SECTION 7.4 Amendment to Section 606 "Money Held in Trust".........................................12
SECTION 7.5 Amendment to Section 607 "Compensation and Reimbursement"..............................12
SECTION 7.6 Amendment to Section 608 "Disqualification; Conflicting Interests".....................12
SECTION 7.7 Amendment to Section 610 "Resignation and Removal; Appointment of Successor"...........12
SECTION 7.8 Amendment to Section 611 "Acceptance of Appointment by Successor"......................13
SECTION 7.9 Amendment to Section 613 "Preferential Collection of Claims Against Company"...........13
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.1 Amendment to Title of Article..........................................................13
SECTION 8.2 Amendment to Section 701 "Company to Furnish Trustee Names and Addresses of Holders"...13
SECTION 8.3 Amendment to Section 702 "Preservation of Information; Communications to Holders"......13
SECTION 8.4 Amendment to Section 703 "Reports by Trustee"..........................................13
SECTION 8.5 Amendment to Section 704 "Reports by Company"..........................................13
ARTICLE NINE
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 9.1 Amendment to Section 801 "Company May Consolidate, etc., Only on Certain Terms"........14
SECTION 9.2 Amendment to Section 802 "Successor Corporation Substituted"...........................14
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1 Amendment to Section 901 "Supplemental Indentures Without Consent of Holders"..........15
SECTION 10.2 Amendment to Section 902 "Supplemental Indentures with Consent of Holders".............15
SECTION 10.3 Amendment to Section 903 "Execution of Supplemental Indentures"........................15
SECTION 10.4 Amendment to Section 906 "Reference in Debt Securities to Supplemental Indentures".....15
ARTICLE ELEVEN
COVENANTS
SECTION 11.1 Amendment to Section 1002 "Maintenance of Office or Agency"............................16
SECTION 11.2 Amendment to Section 1003 "Money for Debt Securities Payments to Be Held in Trust".....16
SECTION 11.3 Amendment to Section 1009 "Payment of Additional Amounts"..............................16
SECTION 11.4 Amendment to Section 1011 "Waiver of Certain Covenants"................................16
ARTICLE TWELVE
REDEMPTION OF DEBT SECURITIES
SECTION 12.1 Amendment to Section 1103 "Selection by Trustee of Debt Securities to Be Redeemed".....17
SECTION 12.2 Amendment to Section 1105 "Deposit of Redemption Price"................................17
SECTION 12.3 Amendment to Section 1106 "Debt Securities Payable on Redemption Date".................17
SECTION 12.4 Amendment to Section 1107 "Debt Security Redeemed in Part".............................17
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.1 Amendment to Section 1202 "Satisfaction of Sinking Fund Payments with Debt Securities".17
ARTICLE FOURTEEN
DEFEASANCE
SECTION 14.1 Amendment to Section 1301 "Termination of Company's Obligations".......................17
SECTION 14.2 Amendment to Section 1302 "Repayment to Company".......................................18
SECTION 14.3 Amendment to Section 1303 "Indemnity for Government Obligations".......................18
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 15.1 Amendment to Section 1402 "Call, Notice and Place of Meetings".........................18
SECTION 15.2 Amendment to Section 1403 "Persons Entitled to Vote at Meetings".......................18
SECTION 15.3 Amendment to Section 1405 "Determination of Voting Rights; Conduct and Adjournment of Meetings". 18
SECTION 15.4 Amendment to Section 1406 "Counting Votes and Recording Action of Meetings"............18
ARTICLE SIXTEEN
GUARANTEES
SECTION 16.1 New Article Sixteen....................................................................19
FIFTH SUPPLEMENTAL INDENTURE, dated as of February 15, 1999, among,
CHRYSLER FINANCIAL COMPANY L.L.C., a Michigan limited liability company (the
979721371"Company"), having its principal place of business at 27777 Franklin
Road, Southfield, Michigan 48034, DAIMLERCHRYSLER AG, a German corporation in
its capacity as guarantor of the securities issued by the Company (the
"Guarantor"), having its principal place of business at Epplestrasse 225,
Stuttgart, Germany, and UNITED STATES TRUST COMPANY OF NEW YORK, a New York
corporation, as successor trustee (the "Trustee"), having its Corporate Trust
Office at 114 West 47th Street, New York, New York 10036, as Trustee under the
indenture of the Company dated as of February 15, 1988, as heretofore amended
and supplemented by the First Supplemental Indenture dated as of March 1, 1988,
the Second Supplemental Indenture dated as of September 7, 1990, the Third
Supplemental Indenture dated as of May 4, 1992, and the Fourth Supplemental
Indenture dated as of October 1, 1998.
RECITALS
WHEREAS, the Indenture provides that the Company and the Trustee may,
without the consent of any Holders, at any time and from time to time, enter
into one or more supplemental indentures, in form satisfactory to the Trustee,
for the purpose of supplementing the provisions of the Indenture with respect
to matters that are not inconsistent with any provision of the Indenture,
provided that such provisions shall not adversely affect the interests of the
Holders of the Debt Securities in any material respect.
WHEREAS, on November 10, 1998, Chrysler Corporation (which later
changed its name to DaimlerChrysler Corporation), the direct parent of the
Company, became a direct, wholly-owned subsidiary of the Guarantor.
WHEREAS, the Company desires to obtain an exemption from the
requirements of filing with the Securities and Exchange Commission an annual
report and such periodic information, documents and other reports as are
required by Sections 13 and 15(d) of the Securities Exchange Act of 1934 with
respect to the Company during and for its current fiscal year and thereafter,
and for that purpose the Company and the Guarantor are willing to supplement
the provisions of the Indenture by adding thereto the Guarantee set forth in
this Fifth Supplemental Indenture pursuant to Article Nine of the Indenture.
Such Guarantee is for the benefit, and will not adversely affect the interests,
of the Holders of Outstanding Securities.
WHEREAS, the Company and the Guarantor have each duly authorized the
execution and delivery of this Fifth Supplemental Indenture, and all things
necessary have been done to make this Fifth Supplemental Indenture a valid
agreement of the Company and the Guarantor, in accordance with its terms.
NOW, THEREFORE, THIS FIFTH SUPPLEMENTAL INDENTURE WITNESSETH:
For and in consideration of the premises and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, it
is mutually convenanted and agreed, for the equal and proportionate benefit of
all Holders of the Company's Debt Securities, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of the Indenture and this Fifth Supplemental
Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
1. The terms defined in this Fifth Supplemental Indenture
have the meanings assigned to them in this Fifth
Supplemental Indenture, and include the plural as well as the
singular;
2 The words, "herein," "hereof," and "hereunder" and other
words of similar import refer to the Indenture and this
Fifth Supplemental Indenture as a whole and not to any
particular Article, Section, or other subdivision; and
3. Capitalized terms used herein and not otherwise defined herein
have the meanings ascribed to them in the Indenture.
SECTION 1.2 Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 1.3 Successors and Assigns.
All covenants and agreements in this Fifth Supplemental Indenture by
the Company and the Guarantor shall bind their successors and assigns, whether
expressed or not.
SECTION 1.4 Severability Clause.
In case any provision in this Fifth Supplemental Indenture 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 1.5 Benefits of Fifth Supplemental Indenture.
Nothing in this Fifth Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto, their successors
hereunder, and the Holders, any benefit or any legal or equitable right,
remedy, or claim under this Fifth Supplemental Indenture.
SECTION 1.6 Governing Law.
THIS FIFTH SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS THOUGH FULLY PERFORMED
THEREIN, WITHOUT REFERENCE TO ITS CONFLICT OF LAWS PROVISIONS.
SECTION 1.7 Effectiveness.
This Fifth Supplemental Indenture shall take effect on the date
hereof and shall amend the provisions of the Indenture with respect to each
series of Debt Securities issued under the Indenture, including any series of
Debt Securities issued under the Indenture prior to the date hereof.
SECTION 1.8 Counterparts.
This Fifth Supplemental 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 one and the same instrument.
ARTICLE TWO
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 2.1 Amendment to Section 101 "Definitions".
Section 101 of the Indenture is hereby amended as follows:
(a) The definition of "Board of Directors" is deleted and replaced in
its entirety with the following:
""Board of Directors" means the board of directors, supervisory board,
management board or board of managers or managing directors of the Company or
the Guarantor, as the case may be, or any duly authorized committee of that
board or any director or directors and/or officer or officers of the Company or
the Guarantor to whom that board or committee shall have duly delegated its
authority."
(b) The definition of "Board Resolution" is deleted and replaced in
its entirety with the following:
""Board Resolution" means a copy of a resolution certified by the Secretary, an
Assistant Secretary or a managing director or other officer of the Company or
the Guarantor, as the case may be, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification.
Where any provision of this Indenture refers to action to be taken pursuant to
a Board Resolution (including establishment thereof), such action may be taken
by any committee, officer or employee of the Company or the Guarantor, as the
case may be, authorized to take such action by a Board Resolution (including,
without limitation, in any Officers' Certificate of officers authorized to act
in connection with such matter by or pursuant to such Board Resolution)."
(c) A new definition "Guarantee" is added as follows:
""Guarantee" means any guarantee of the Guarantor with regard to each Debt
Security issued by the Company and authenticated and delivered pursuant to this
Indenture and shall include the Guarantee set forth in Article Sixteen of this
Fifth Supplemental Indenture and all other obligations and covenants of the
Guarantor contained in this Indenture and any Debt Securities whether issued
previous to or after the date of this Supplemental Indenture."
(d) A new definition "Guarantor" is added as follows:
""Guarantor" means the Person named as the "Guarantor" in the first paragraph
of this Fifth Supplemental Indenture until a successor shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Guarantor" shall mean such successor."
(e) A new definition "Guarantor Request" and "Guarantor Order" is
added as follows:
""Guarantor Request" and Guarantor Order" mean a written request or order
signed in the name of the Guarantor by its Chairman of the Board, President, a
Vice President, director, managing director or other authorized officer and by
its Treasurer, Assistant Treasurer, its Secretary, Assistant Secretary,
director, managing director or other authorized officer and delivered to the
Trustee."
(f) The definition of "Officers' Certificate" is deleted and replaced
in its entirety with the following:
""Officers' Certificate" means with respect to the Company or the Guarantor a
certificate of the Company or the Guarantor signed by its Chairman of the
Board, Vice Chairman of the Board, President or an Executive Vice President or
Vice President, director, managing director or other authorized officer, and by
the Treasurer, an Assistant Treasurer, the Controller, an Assistant Controller,
the Secretary or an Assistant Secretary, director, managing director or other
authorized officer of the Company or the Guarantor, as the case may be, and
delivered to the Trustee."
(g) The definition of "Opinion of Counsel" is amended to insert "or
the Guarantor, as the case may be," after "Company" in the first line thereof.
(h) The definition of "Outstanding" is amended to insert "or the
Guarantor, as the case may be," after "Company" in the second line and both
appearances in the third line of clause (ii) and after "Company" in the last
line of clause (iii) , and is further amended to insert ",the Guarantor" after
"Company" in the third, fourth, ninth and tenth lines of the remainder of the
definition.
SECTION 2.2 Amendment to Section 102 "Compliance Certificate and
Opinions".
Section 102 is amended to insert "or the Guarantor" after "Company"
in the first line of the first paragraph and is further amended to insert "or
the Guarantor, as the case may be," after "Company" in the second line of the
first paragraph.
SECTION 2.3 Amendment to Section 103 "Form of Documents Delivered to Trustee".
Section 103 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first, sixth and seventh lines of the second
paragraph.
SECTION 2.4 Amendment to Section 104 "Acts of Holders".
Section 104 is amended to insert "or the Guarantor or both of them"
after "Company" in the eleventh line of paragraph (a), and is further amended
to insert "and the Guarantor" after "Company" in the fifteenth line of
paragraph (a) and in the eighth line of paragraph (d), and is further amended
to insert "or the Guarantor" after "Company" in the first line of paragraph (f)
and the fourth line of paragraph (g), and is further amended to insert "or the
Guarantor, as the case may be," after "Company" in the second and fourth lines
of paragraph (f) and in the sixth and tenth lines of paragraph (h), and is
further amended to insert "or the Guarantor's, as the case may be," after
"Company's" in the fifth line of paragraph (f).
SECTION 2.5 Amendment to Section 105 "Notices, etc., to Trustee and Company" .
Section 105 is amended to insert ", Guarantor" after "Trustee" in the
title of the Section, and is further amended to insert ", the Guarantor" after
"Holder" in the first line of clause (1), and is further amended to insert "or
the Guarantor" after "Company" in the first line of clause (2), and is further
amended to insert "or the Guarantor, as the case may be," after "Company" in
the third and fourth lines of clause (2), and is further amended to replace
"instrument" in the last line of clause (2) with "Fifth Supplemental
Indenture", and is further amended to add a second paragraph as follows:
"Any request, demand, authorization, direction, notice, consent,
waiver or other action required or permitted under this Indenture
shall be in the English language, and any published notice may also
be in an official language of the country or province of
publication."
SECTION 2.6 Amendment to Section 109 "Successors and Assigns".
Section 109 is amended to insert "or the Guarantor" after "Company",
and is further amended to delete "its" and replace it with "their respective,"
and is further amended to insert "so" after "whether".
SECTION 2.7 New Section 114 "Appointment of Agent for Service".
A new Section 114 is added as follows:
"SECTION 114......APPOINTMENT OF AGENT FOR SERVICE.
By the execution and delivery of this Fifth Supplemental
Indenture, the Guarantor designates and appoints DaimlerChrysler
North America Holding Corporation, in the Borough of Manhattan, City
and State of New York, as its authorized agent upon which process may
be served in any suit or proceeding arising out of or relating to the
Debt Securities, the Guarantees or this Indenture which may be
instituted in any Federal or New York State Court located in the
Borough of Manhattan, City and State of New York, but for that
purpose only, and agrees that service of process upon said
DaimlerChrysler North America Holding Corporation, directed to the
attention of Treasurer, and written notice of said service given by
the Person serving the same to it, addressed to DaimlerChrysler North
America Holding Corporation, 375 Park Avenue, Suite 3001, New York,
New York 10152, shall be deemed in every respect effective service of
process upon it in any such suit or proceeding in any Federal or
State court in such Borough, City and State. The Guarantor hereby
submits (for the purposes of any such suit or proceeding) to the
jurisdiction of any such court in which any such suit or proceeding
is so instituted, and irrevocably waives, to the fullest extent it
may lawfully do so, any objection it may have now or hereafter to the
laying of the venue of any such suit, action or proceeding in any
such court and irrevocably waives, to the fullest extent it may
lawfully do so, any claim that any such suit, action or proceeding
brought in any such court has been brought in an inconvenient forum.
Such submission and waiver shall be irrevocable so long as any of the
Debt Securities remain outstanding and such appointment shall be
irrevocable until the appointment of a successor by the Guarantor,
with the consent of the Trustee and such successor's acceptance of
such appointment. Upon such acceptance, the Guarantor shall notify
the Trustee, in writing, of the name and address of such successor.
The Guarantor further agrees to take any and all action, including
the execution and filing of any and all such documents and
instruments, as may be necessary to continue such designation and
appointment of said DaimlerChrysler North America Holding Corporation
or its successor in full force and effect so long as any of the
applicable Debt Securities shall be outstanding. The Trustee shall
not be obligated and shall have no responsibility with respect to any
failure by the Guarantor to take any such action above.
The Guarantor agrees to the fullest extent that it lawfully may
do so, that final judgment in any such suit, action or proceeding
brought in such a court shall be conclusive and binding upon the
Guarantor and may be enforced in the courts of Germany (or any other
courts to the jurisdiction of which the Guarantor is subject) by a
suit upon such judgment, provided that service of process is effected
upon the Guarantor in the manner specified in the foregoing paragraph
or as otherwise permitted by law; provided, however, that the
Guarantor does not waive, and the foregoing provisions of this
sentence shall not constitute or be deemed to constitute a waiver of,
(1) any right to appeal any such judgment, to seek any stay or
otherwise to seek reconsideration or review of any such judgment, (2)
any stay of execution or levy pending an appeal from, or a suit,
action or proceeding for reconsideration of, any such judgment, (3)
any defense to a claim for punitive damages and the like, (4) the
defense of payment, or (5) any other right or remedy of the Guarantor
to the extent not expressly waived in accordance with this Section
114.
Nothing in this Section shall affect the right of the Trustee or
any Holder of any Debt Security to serve process in any manner
permitted by applicable law or limit the right of the Trustee or any
Holder of any Debt Security to bring proceedings against the Company
and/or the Guarantor, in the courts of any other jurisdiction or
jurisdictions."
SECTION 2.8 Applicability of Inclusion of References to Guarantor.
Notwithstanding any provision hereof to the contrary, references to
the Guarantor in Article Five and in Articles Eight through Sixteen of the
Indenture shall only be considered to be included in the Indenture and shall
only be applicable in connection with any Debt Securities issued after February
15, 1999.
ARTICLE THREE
DEBT SECURITY FORMS
SECTION 3.1 Amendment to Section 201 "Forms Generally".
Section 201 is amended to insert the following paragraphs after the
first paragraph:
"For Debt Securities issued after the date hereof, the Guarantee
shall be endorsed on each Debt Security and such Guarantee for the Debt
Securities of a particular series shall be in such form as is established
pursuant to Section 202.
Outstanding Debt Securities issued prior to the date hereof shall be
Guaranteed pursuant to the terms of Article Sixteen hereof and no endorsement
of such Guarantee shall be necessary on any Outstanding Debt Security and no
Guarantee need be executed and delivered by the Guarantor to the Holder of an
Outstanding Debt Security."
SECTION 3.2 Amendment to Section 202 "Forms of Debt Securities".
Section 202 is amended to insert "and Guarantees" after "Securities"
in the title to the Section and is further amended to insert the following
paragraph after the first paragraph of the Section:
"Except for Outstanding Debt Securities issued prior to the date
hereof, which shall be Guaranteed as set forth in Section 201 hereof, the
Guarantee of the Guarantor shall be endorsed on each Debt Security and for each
particular series of Debt Securities shall be in substantially such form or
forms as shall be established by or pursuant to a Board Resolution (including,
without limitation, in any Officers' Certificate of an officer authorized to
act in connection with such matter or pursuant to such Board Resolution) of the
Guarantor or an indenture supplemental hereto, with such appropriate
insertions, omissions, substitutions and other corrections as are required or
permitted by this Indenture or any indenture supplemental hereto, and may have
such letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may, consistently herewith, be determined by the
officers executing such Guarantees. Such execution of such Guarantees shall be
conclusive evidence as regards the Guarantor as to any such determination made
by the Guarantor."
ARTICLE FOUR
THE DEBT SECURITIES
SECTION 4.1 Amendment to Section 301 "Amount Unlimited; Issuable in Series".
Section 301 is amended to insert "and related Guarantees" after "Debt
Securities" in the first line of the second paragraph.
SECTION 4.2 Amendment to Section 303 "Execution, Authentication, Delivery and
Dating".
Section 303 is amended to insert "from the Company and the Guarantor"
after "receive" in the eighth line of paragraph (b) and is further amended to
add "and the related Guarantee" after "Debt Securities" in the tenth line of
paragraph (b) and is further amended to add "by the Company and the Guarantor,
respectively" after "approved" in the tenth line of paragraph (b), and is
further amended to add "and the Guarantor" after "Company" in the first line of
clause (1), in the third, fourth and fifth lines of clause (4) and in the
second, third, and fourth lines in clause (5), and is further amended to insert
"and the related Guarantees" after "if any," in the second line of clause (1),
the first line of clause (2), the first line of clause (3), the first line of
clause (4) and the first and second lines of clause (5), after "Debt
Securities" in the fourth line of clause (1), and after "thereto" in the first
line of paragraph (g), and is further amended to insert "including the
Guarantee," after "Indenture" in the fifth line of clause (5), and is further
amended by adding ", the Guarantor shall endorse thereon the Guarantee in the
form established pursuant to Section 202 hereof" after "execute" in the second
line of paragraph (c), and is further amended to insert a new subsection (h) as
follows: "(h) Reference is made to Section 1602 concerning the execution and
delivery of the Guarantees."
SECTION 4.3 Amendment to Section 304 "Temporary Debt Securities".
Section 304 is amended to insert "and each having endorsed thereon
the Guarantee executed by the Guarantor, substantially of the tenor of the
definitive Guarantee" after "without coupons," in the fifth line of the first
paragraph, and is further amended to insert "and Guarantees" after "coupons" in
the seventh and eighth lines of the first paragraph, and is further amended to
insert "having endorsed thereon Guarantees executed by the Guarantor" after
"tenor" in the tenth line of the second paragraph.
SECTION 4.4 Amendment to Section 305 "Registration; Registration of Transfer
and Exchange".
Section 305 is amended to insert "Guarantor and the" after "by the"
in the last line of the first paragraph, and is further amended to insert ",
each having endorsed thereon the Guarantee executed by the Guarantor" after
"amount" in the last line of the second paragraph and in the third line of the
fourth paragraph, and is further amended to insert "having endorsed thereon the
Guarantee executed by the Guarantor," after "same series," in the fourth line
of the fifth paragraph, and is further amended by adding ", the Guarantor shall
guarantee" after "execute" in the first line of the sixth paragraph, and is
further amended by adding ", the Guarantor will guarantee" after "execute" in
the first line of the tenth paragraph, and is further amended to insert ",
having endorsed thereon the Guarantee executed by the Guarantor," after
"definitive form" in the ninth line of the seventh paragraph and in the fifth
line of the eighth paragraph and after "same series" in the second line of
clause (i) of the ninth paragraph and is further amended to insert "and the
Guarantor" after "Company" in the second line of the twelfth paragraph.
SECTION 4.5 Amendment to Section 306 "Mutilated, Destroyed, Lost and Stolen
Debt Securities".
Section 306 is amended to insert ", the Guarantor" after "Company" in
the second, third and fifth lines of the first paragraph, and is further
amended to insert ", having endorsed thereon the Guarantee executed by the
Guarantor" after "principal amount" in the tenth line of the first paragraph,
and is further amended to delete "in its discretion" in the second line of the
second paragraph and replace it with "and the Guarantor in their discretion,"
and is further amended to insert "and the Guarantee endorsed thereon" after "if
any," in the first line of the fourth paragraph, and is further amended to
insert "and the Guarantor, respectively" after "Company" in the third line of
the fourth paragraph, and is further amended to insert "and the Guarantee
endorsed thereon, if any," after "if any," in the last line of the fourth
paragraph.
SECTION 4.6 Amendment to Section 307 "Payment of Interest; Interest Rights
Preserved".
Section 307 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first, fourth, sixth, thirteenth and fifteenth
lines of clause (1) and in the first and fourth lines of clause (2), and is
further amended to insert "or the Guarantor, as the case may be" in the fourth
line of the second paragraph and in the eighteenth line of clause (1).
SECTION 4.7 Amendment to Section 308 "Persons Deemed Owners".
Section 308 is amended to insert "the Guarantor," after "Company" in
the first, second, fifth and last lines of the first paragraph, the first line
(both places), fourth, and last lines of the second paragraph, and in the first
line of the third paragraph.
SECTION 4.8 Amendment to Section 309 "Cancellation".
Section 309 is amended to insert "or the Guarantor" after "Company"
in the third and fifth lines of the first paragraph, and is further amended to
insert "and the Guarantor" after the first appearance of "Company" in the ninth
line of the first paragraph.
SECTION 4.9 Amendment to Section 311 "Payment in Currencies".
Section 311 is amended to insert ", the Guarantor" after "Company" in
the fourth line of paragraph (e).
SECTION 4.10 Amendment to Section 313 "Judgments".
Section 313 is amended to insert "or the Guarantor" after "Company"
in the second line of the first paragraph, and is further amended to insert
"and any Guarantees" after "appurtenant coupons" in the third line of the first
paragraph, and is further amended to insert "or such Guarantees" after "Debt
Securities" in the sixth line and after "appurtenant coupons" in the eighth
line of the first paragraph, and is further amended to insert "or the
Guarantor, as the case may be," after "Company" in the seventh, sixteenth and
seventeenth lines of the first paragraph.
ARTICLE FIVE
SATISFACTION AND DISCHARGE
SECTION 5.1 Amendment to Section 401 "Satisfaction and Discharge of Indenture".
Section 401 is amended to insert "or the Guarantor" after "Company"
in both places in the ninth line of paragraph (1)(A), in the seventh line of
paragraph (1)(B), in both places in the first line of clause (2), in the first
line of clause (3) and in the first line of the last sentence of the Section.
SECTION 5.2 Amendment to Section 402 "Application of Trust Money".
Section 402 is amended to insert "or the Guarantor" after "Company"
in the fourth line of the first paragraph.
ARTICLE SIX
REMEDIES
SECTION 6.1 Amendment to Section 501 "Events of Default".
Section 501 is amended to insert "or the Guarantor" after "Company"
in the first line of clause (4), in the first and fourth lines of clause (6),
and in the first, fifth and seventh lines of clause (7), and is further amended
to insert "and the Guarantor" after "Company" in the fifth line of clause (4)
and the eighth line of clause (5), and is further amended to insert ", the
Guarantor" after "Company" in the sixth line of clause (4), the third and ninth
lines of clause (5), and is further amended to replace "by it" in the fifth and
sixth lines of clause (7) with "by the Company or the Guarantor", and is
further amended to insert "or the Guarantor, as the case may be," in the
seventh line of clause (5).
SECTION 6.2 Amendment to Section 502 "Acceleration of Maturity; Rescission and
Annulment".
Section 502 is amended to insert "and the Guarantor" after "Company"
in the sixth line of the first paragraph, and is further amended to insert ",
the Guarantor" after "Company" in the fourth line of the second paragraph, and
is further amended to insert "or the Guarantor" after "Company" in the first
line of clause (1).
SECTION 6.3 Amendment to Section 503 "Collection of Indebtedness and Suits for
Enforcement by Trustee".
Section 503 is amended to insert "and the Guarantor each" after
"Company" in the first line of the first paragraph, and is further amended to
insert "and the Guarantor" after "Company" in the seventh line of the first
paragraph, and is further amended to insert "or the Guarantor" after "Company"
in the first, fourth and fifth lines of the second paragraph.
SECTION 6.4 Amendment to Section 504 "Trustee May File Proofs of Claim".
Section 504 is amended to insert ", the Guarantor" after "Company" in
the third and fourth lines of the first paragraph, and is further amended to
insert "or the Guarantor" after "Company" in the seventh line of the first
paragraph.
SECTION 6.5 Amendment to Section 509 "Restoration of Rights and Remedies".
Section 509 is amended to insert ", the Guarantor" after "Company" in
the third line of the first paragraph.
SECTION 6.6 Amendment to Section 515 "Waiver of Stay or Extension Laws".
Section 515 is amended to insert "and the Guarantor each" after
"Company" in the first and fourth lines of the first paragraph.
ARTICLE SEVEN
THE TRUSTEE
SECTION 7.1 Amendment to Section 603 "Certain Rights of Trustee".
Section 603 is amended to insert "or the Guarantor" after "Company"
in the first sentence of clause (b), and is further amended by inserting "or a
Guarantor Request or Guarantor Order" after "Order" in the second sentence of
clause (b), and is further amended by inserting "of the Company or the
Guarantor" after "Directors" in the second line of clause (b) , and it is
further amended to insert "or the Guarantor or both of them" after "Company" in
the sixth line of clause (f).
SECTION 7.2 Amendment to Section 604 "Not Responsible for Recitals or
Issuance of Debt Securities".
Section 604 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the second line of the first paragraph, and is further
amended to insert "or of the Guarantees" after "coupons" in the fourth line of
the first paragraph.
SECTION 7.3 Amendment to Section 605 "May Hold Debt Securities or Coupons".
Section 605 is amended to insert "or the Guarantor" after "Company"
in the first line of the first paragraph, and is further amended to insert "or
the Guarantor, as the case may be," after "Company" in the third line of the
first paragraph.
SECTION 7.4 Amendment to Section 606 "Money Held in Trust".
Section 606 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the last line of the first paragraph.
SECTION 7.5 Amendment to Section 607 "Compensation and Reimbursement".
Section 607 is amended to insert "and the Guarantor each, jointly and
severally," after "Company" in the first line of the first paragraph, and is
further amended to insert "and the Guarantor" after "Company" in the first line
of the last paragraph.
SECTION 7.6 Amendment to Section 608 "Disqualification; Conflicting
Interests".
Section 608 is amended to insert "(including the Guarantor)" after
"obligor" in clause (5) of paragraph (d).
SECTION 7.7 Amendment to Section 610 "Resignation and Removal; Appointment of
Successor".
Section 610 is amended to insert "and the Guarantor" after "Company"
in the second line of paragraph (b), and is further amended to insert ", the
Guarantor" after "Trustee" in the last line of paragraph (c), and is further
amended to insert "or the Guarantor," after "Company" in the second line of
paragraph (d)(1) and in the second line of paragraph (d)(2), and is further
amended to insert ", the Guarantor" after "Company" in the tenth line of
paragraph (e).
SECTION 7.8 Amendment to Section 611 "Acceptance of Appointment by Successor".
Section 611 is amended to insert ", the Guarantor" after "Company" in
the second and sixth lines of paragraph (a), and the second and twentieth lines
of paragraph (b), and is further amended to insert "and the Guarantor" after
"Company" in the first line of paragraph (c).
SECTION 7.9 Amendment to Section 613 "Preferential Collection of Claims
Against Company".
Section 613 is amended to insert "(including the Guarantor)" after
"obligor" in paragraph (c)(5).
ARTICLE EIGHT
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 8.1 Amendment to Title of Article.
The title of the Article is amended to insert ", GUARANTOR" after
"TRUSTEE."
SECTION 8.2 Amendment to Section 701 "Company to Furnish Trustee Names and
Addresses of Holders".
Section 701 is amended to insert "and the Guarantor" after "Company"
in the title of the Section and in the first line of the first paragraph, and
is further amended to insert "or the Guarantor" after "Company" in the second
line of paragraph (b).
SECTION 8.3 Amendment to Section 702 "Preservation of Information;
Communications to Holders".
Section 702 is amended to insert ", the Guarantor" after "Company" in
both places in the second line of paragraph (c).
SECTION 8.4 Amendment to Section 703 "Reports by Trustee".
Section 703 is amended to insert "and the Guarantor" after "Company"
in the first line of paragraph (a)(3), and is further amended to insert "and
the Guarantor" after the first use of "Company" in the third line of paragraph
(d).
SECTION 8.5 Amendment to Section 704 "Reports by Company".
Section 704 is amended to insert "and the Guarantor" after "Company"
in the title of the Section and in the first line of the first paragraph, and
is further amended to insert "or the Guarantor" after "Company" in the first,
fourth and fifth lines of clause (1), and is further amended to insert the
following after "regulations;" in the last line of clause (1):
"provided that no such supplementary and periodic information,
documents and reports need to be filed by the Company if, pursuant to
the rules and regulations of the Commission, it is exempt from such
filing requirements by virtue of the existence of the Guarantees;"
and is further amended to insert "or the Guarantor, or both," after "Company"
in the third line of clause (2), and is further amended to insert "or the
Guarantor, as the case may be," after "Company" in the fourth line of clause
(3).
ARTICLE NINE
CONSOLIDATION, MERGER,
CONVEYANCE, TRANSFER OR LEASE
SECTION 9.1 Amendment to Section 801 "Company May Consolidate, etc., Only on
Certain Terms".
Section 801 is amended to insert "and Guarantor" after "Company" in
the title of the Section, and is further amended to add a new final paragraph
as follows:
"The Guarantor may merge with or into any corporation or sell,
transfer, lease or convey all or substantially all of its assets
substantially as an entirety to any corporation; provided that (a)
the corporation formed by such merger or consolidation or the
corporation which acquired such assets expressly assumes all of the
obligations of the Guarantor hereunder (including the additional
amounts, if any, set forth in Section 1009 of the Indenture and as
set forth in Article Sixteen hereof), and (b) immediately after
giving effect to such transaction, no Event of Default with respect
to such Debt Securities and no event which, after notice or lapse of
time or both, would become an Event of Default with respect to such
Debt Securities, shall have occurred and be continuing."
SECTION 9.2 Amendment to Section 802 "Successor Corporation Substituted".
Section 802 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the second, third, fifth and sixth lines of the first
paragraph.
ARTICLE TEN
SUPPLEMENTAL INDENTURES
SECTION 10.1 Amendment to Section 901 "Supplemental Indentures Without
Consent of Holders".
Section 901 is amended to insert "and the Guarantor" after "Company"
in the first line of the first paragraph, and is further amended to insert "or
the Guarantor," after "Company" in the first and second lines of clause (1) and
the first and last lines of clause (2), and is further amended to insert "or
the Guarantees" after "Debt Securities" in the second line of clause (1), and
is further amended to insert "contained" after "and" in the second line of
clause (1), and is further amended by deleting "contained" at the end of clause
(1), and is further amended to insert "or related Guarantee, if any" after
"coupons" in the second and third lines of clause (2), and is further amended
to insert "and related Guarantee, if any" after "Securities" in the second line
of clause (3), and is further amended to insert "and related Guarantee, if
any," after "Securities" in the fifth line of clause (4), the first line of
clause (6), the second line of clause (7), in clause (8) and in the last line
of clause (10), and is further amended to insert "(and related Guarantee)"
after "Security" in the second line of clause (5).
SECTION 10.2 Amendment to Section 902 "Supplemental Indentures with Consent of
Holders".
Section 902 is amended to insert ", the Guarantor" after "Company" in
the second line of the first paragraph, and is further amended to insert "and
the Guarantor" after "Company" in the third line of the first paragraph, and is
further amended to insert "not" after "shall" in the seventh line of the first
paragraph, and is further amended to add a new clause (4) as follows:
"(4) change in any manner adverse to the interests of the Holders of
any Outstanding Debt Securities the terms and conditions of the
obligations of the Guarantor in respect of the due and punctual
payment of the principal thereof (and premium, if any) and interest,
if any, thereon or any additional amounts or any sinking fund
payments provided in respect thereof."
SECTION 10.3 Amendment to Section 903 "Execution of Supplemental Indentures".
Section 903 is amended to insert "and the Guarantor" after "Company"
in the fifth line of the first paragraph.
SECTION 10.4 Amendment to Section 906 "Reference in Debt Securities to
Supplemental Indentures".
Section 906 is amended to insert "and the Guarantor" after "Company"
in the third line of the first paragraph, and is further amended to insert "of
the Company and the Guarantor" after "Directors" in the fifth line of the first
paragraph, and is further amended to insert ", the Guarantees may be executed
by the Guarantor" after "Company" in the sixth line of the first paragraph.
ARTICLE ELEVEN
COVENANTS
SECTION 11.1 Amendment to Section 1002 "Maintenance of Office or Agency".
Section 1002 is amended to insert "and the Guarantor" after "Company"
in the first and twenty-third lines in the first paragraph, and is further
amended to insert "or the Guarantor" after "Company" in the fifth, seventh,
thirteenth, fifteenth and seventeenth lines of the first paragraph, the second
line of the second paragraph, and the first, fifth and sixth lines of the third
paragraph.
SECTION 11.2 Amendment to Section 1003 "Money for Debt Securities Payments to
Be Held in Trust".
Section 1003 is amended to insert "or the Guarantor" after "Company"
in the first line of the first paragraph and in the first, fifth and eighth
lines of the last paragraph, and is further amended to insert "and the
Guarantor" after "Company" in the first line of the second paragraph, and is
further amended to delete "it will" from the second line of the second
paragraph and replace it with "the Company will", and is further amended to
delete "shall be paid to the Company on Company Request" and to replace it with
"shall be paid to the Company or the Guarantor, as the case may be, on a
Company Request or a Guarantor Request, as the case may be," in the fourth line
of the fifth paragraph, and is further amended to insert the letter "s" at the
end of "trust" in the fifth line of the last paragraph, and is further amended
to insert "(or to the Guarantor pursuant to its Guarantee)" after "Company" in
the sixth line of the last paragraph, and is further amended to insert "or the
Guarantor, as the case may be" after "Company" in the last line of the last
paragraph.
SECTION 11.3 Amendment to Section 1009 "Payment of Additional Amounts".
Section 1009 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first line of the first paragraph and in the sixth
and thirteenth lines of the second paragraph, and is further amended to insert
"and the Guarantor each" after "Company" in the fifteenth line of the second
paragraph.
SECTION 11.4 Amendment to Section 1011 "Waiver of Certain Covenants".
Section 1011 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first line of the first paragraph, and is further
amended to insert "and the Guarantor, as the case may be," after "Company" in
the seventh line of the first paragraph.
ARTICLE TWELVE
REDEMPTION OF DEBT SECURITIES
SECTION 12.1 Amendment to Section 1103 "Selection by Trustee of Debt
Securities to Be Redeemed".
Section 1103 is amended to insert "and the Guarantor" after "Company"
in the first line of the second paragraph.
SECTION 12.2 Amendment to Section 1105 "Deposit of Redemption Price".
Section 1105 is amended to insert "or the Guarantor" after "Company"
in the first and second lines of the first paragraph.
SECTOPM 12.3 Amendment to Section 1106 "Debt Securities Payable on Redemption
Date".
Section 1106 is amended to insert "and the Guarantor" after "Company"
in the third line of the first paragraph.
SECTION 12.4 Amendment to Section 1107 "Debt Security Redeemed in Part".
Section 1107 is amended to insert ", each having endorsed thereon the
Guarantee executed by the Guarantor" after "surrendered" in the eighth,
fifteenth and last lines of the first paragraph.
ARTICLE THIRTEEN
SINKING FUNDS
SECTION 13.1 Amendment to Section 1202 "Satisfaction of Sinking Fund Payments
with Debt Securities".
Section 1202 is amended to insert "or the Guarantor" after "Company"
in the first line of the first paragraph.
ARTICLE FOURTEEN
DEFEASANCE
SECTION 14.1 Amendment to Section 1301 "Termination of Company's Obligations".
Section 1301 is amended to delete "Company's" from the title of the
Section, and is further amended to insert "or the Guarantor, as the case may
be," after "Company" in the first and eighth lines of the first paragraph, the
third line of the third paragraph and the fourth line of the fourth paragraph,
and is further amended to insert "and the Guarantor's" after "Company's" in the
third line of the first paragraph, the second line of the third paragraph, the
second line of the fourth paragraph, and the second line of the last paragraph,
and is further amended to insert "or Guarantor Request, as the case may be,"
after "Request" in the first line of the last paragraph.
SECTION 14.2 Amendment to Section 1302 "Repayment to Company".
Section 1302 is amended to insert "or the Guarantor" after "Company"
in the title of the Section, and is further amended to insert "or Guarantor
Request" after "Request" in the first line of the first paragraph and the first
line of the second paragraph, and is further amended to insert "or the
Guarantor, as the case may be," after "Company" in the first use in the first
line of the first paragraph, the first use in the first line in the second
paragraph, the fourth line of the second paragraph and the last line of the
second paragraph.
SECTION 14.3 Amendment to Section 1303 "Indemnity for Government Obligations".
Section 1303 is amended to insert "or the Guarantor, as the case may
be," after "Company" in the first line of the first paragraph.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF DEBT SECURITIES
SECTION 15.1 Amendment to Section 1402 "Call, Notice and Place of Meetings".
Section 1402 is amended to insert "or the Guarantor" after "Company"
in the first line of paragraph (b), and is further amended to insert ", the
Guarantor" after "Company" in the seventh line of paragraph (b).
SECTION 15.2 Amendment to Section 1403 "Persons Entitled to Vote at Meetings".
Section 1403 is amended to insert ", any representatives of the
Guarantor and its counsel" after "Trustee and its counsel" in the sixth line of
the first paragraph.
SECTION 15.3 Amendment to Section 1405 "Determination of Voting Rights;
Conduct and Adjournment of Meetings".
Section 1405 is amended to insert ", the Guarantor" after "Company"
in the second and third lines of paragraph (b).
SECTION 15.4 Amendment to Section 1406 "Counting Votes and Recording
Action of Meetings".
Section 1406 is amended to insert ", one such copy shall be delivered
to the Guarantor" after "Company" in the thirteenth line of the first
paragraph.
ARTICLE SIXTEEN
GUARANTEES
SECTION 16.1 New Article Sixteen.
"ARTICLE SIXTEEN
GUARANTEES
The provisions of this Article shall be applicable to all Debt
Securities whether issued previous to or after the date of this Fifth
Supplemental Indenture.
Section 1601 Guarantee.
The Guarantor hereby irrevocably and unconditionally guarantees to
each Holder of any Debt Security issued under this Indenture by the Company and
authenticated and delivered by the Paying Agent, and to the Trustee on behalf
of each such Holder, the due and punctual payment of the principal of (and
premium, if any, on) and interest, if any, on each such Debt Security
(including any additional amounts payable in accordance with the terms of any
such Debt Security and this Indenture) and the due and punctual payment of any
sinking fund payments provided for pursuant to the terms of any such Debt
Security when and as the same shall become due and payable, whether at the
Stated Maturity, if any, by declaration of acceleration, call for redemption,
request for redemption, repayment at the option of the Holder or otherwise, in
accordance with the terms of such Debt Security and of this Indenture. In case
of the failure of the Company punctually to make any such payment of principal
(or premium, if any) or interest, if any, (including any additional amounts as
referred to above) or sinking fund payment, the Guarantor hereby agrees to
cause any such payment to be made punctually when and as the same shall become
due and payable, whether at the Stated Maturity, if any, by declaration of
acceleration, call for redemption, request for redemption, repayment at the
option of the Holder or otherwise, and as if such payment were made by the
Company.
The Guarantor will pay to the Holder of such Debt Security such
additional amounts as may be necessary in order that every net payment of the
principal of (and premium, if any, on) and interest, if any, on such Debt
Security after deduction or other withholding for or on account of any present
or future tax, assessment, duty or other governmental charge of any nature
whatsoever imposed, levied or collected by or on behalf of the country in which
the Guarantor is organized or any political subdivision or taxing authority
thereof or therein having power to tax, will not be less than the amount
provided for in such Debt Security to be then due and payable; provided,
however, that the foregoing obligation to pay additional amounts will not apply
on account of any tax, assessment, duty or other governmental charge which is
payable (a) otherwise than by deduction or withholding from payments of
principal of (or premium, if any, on) or interest, if any, on such Debt
Security; or (b) by reason of the Holder having, or having had, some personal
or business connection with the country in which the Guarantor is organized and
not merely by reason of the fact that payments are, or for the purposes of
taxation are deemed to be, from sources in, or secured in, the country in which
the Guarantor is organized; or (c) by reason of a change in law or official
practice of any relevant taxing authority that becomes effective on or after
the date hereof for payment of principal (or premium, if any), or interest, if
any, in respect of such Debt Security; or (d) by reason of any estate, excise,
inheritance, gift, sales, transfer, wealth, personal property tax or any
similar assessment or governmental charge; or (e) as a result of the failure of
the Holder to satisfy any statutory requirements or make a declaration of
nonresidence or other similar claim for exemption to the relevant tax
authority; or (f) owing to any combination of clauses (a) through (e) above.
The Guarantor hereby agrees that its obligations hereunder shall be
as if it were principal debtor and not merely surety, and shall be absolute and
unconditional, irrespective of the validity, regularity or enforceability of
any such Debt Security, this Indenture or this guarantee, the absence of any
action to enforce the same, any waiver or consent by the Holder of any such
Debt Security or by the Trustee or the Paying Agent with respect to any
provisions thereof or of this Indenture or this guarantee, the existence of any
judgment against the Company, as the Company, or any action to enforce the same
or any other circumstances which might otherwise constitute a legal or
equitable discharge or defense of a guarantor. The Guarantor hereby waives
diligence, presentment, demand of payment, filing of claims with a court in the
event of insolvency or bankruptcy of the Company, any right to require a
proceeding first against the Company, protest or notice with respect to such
Debt Security or the indebtedness evidenced thereby or with respect to any
sinking fund payment required pursuant to the terms of any such Debt Security
and all demands whatsoever, and covenants that this Guarantee will not be
discharged except by complete performance of all of the obligations of the
Guarantor contained in this Indenture and any such Debt Securities and in the
Guarantees. If the Trustee or the Holder of any such Debt Security is required
by any court or otherwise to return (and does so return) to the Company or the
Guarantor, or any custodian, receiver, liquidator, trustee, sequestrator or
other similar official acting in relation to the Company or the Guarantor, any
amount paid to the Trustee or such Holder in respect of any such Debt Security,
this Guarantee, to the extent theretofore discharged, shall be reinstated in
full force and effect. The Guarantor further agrees, to the fullest extent that
it lawfully may do so, that, as between the Guarantor, on the one hand, and the
Holders and the Trustee, on the other hand, the Maturity of the obligations
guaranteed hereby may be accelerated as provided in Section 502 hereof for the
purposes of this Guarantee, notwithstanding any stay, injunction or other
prohibition extant under any applicable bankruptcy, insolvency, reorganization
or other similar law of the United States or Germany or any other applicable
country or jurisdiction preventing such acceleration in respect of the
obligations guaranteed hereby.
The Guarantor shall be subrogated to all rights of the Holders of
such Debt Securities of a particular series against the Company in respect of
any amounts paid to such Holders by the Guarantor pursuant to the provisions of
the Guarantees under this Indenture; provided however, that the Guarantor shall
not be entitled to receive any payments arising out of the subrogation from the
Company (i) while any Event of Default shall have occurred and be continuing
with respect to any Debt Securities issued by the Company under Sections
501(l), 501(2), 501(3), 501(5), 501(6), or 501(4) (but only to the extent such
Event of Default under Section 501(4) arises out of a default by the Company
under the covenants set forth in Sections 1001, 1004 or 1009),or (ii) any
default (which with the passage of time would become an Event of Default) with
respect to any Debt Securities issued by the Company, under Section 501(1) or
501(2) shall have occurred and be continuing.
Section 1602 Execution and Delivery of Guarantees.
Outstanding Debt Securities issued prior to the date hereof shall be
guaranteed pursuant to the terms of Section 1601 hereof and no endorsement of
such Guarantee shall be necessary on any such Outstanding Debt Security and no
Guarantee need be executed and delivered by the Guarantor to the Holder of a
Debt Security Outstanding on the date hereof.
To evidence its Guarantee provided in Section 1601 for Debt
Securities issued after the date hereof, the Guarantor hereby agrees to execute
the Guarantee, in a form established pursuant to Section 202, to be endorsed on
each Debt Security issued hereunder by the Company and authenticated and
delivered by the Paying Agent. Each such Guarantee shall be executed on behalf
of the Guarantor by any two of its authorized representatives. The signature of
any authorized representative on each Guarantee may be manual or facsimile.
Any Guarantee bearing the manual or facsimile signatures of
individuals who were at any time the proper officers of the Guarantor shall
bind the Guarantor, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of the
Debt Securities upon which any such Guarantee is endorsed or did not hold such
offices at the date of such Debt Securities.
The delivery of any such Debt Security by the Paying Agent, after the
authentication thereof hereunder, shall constitute due delivery of the
Guarantee. The Guarantor hereby agrees that its Guarantee set forth in Section
1601 shall remain in full force and effect notwithstanding any failure to
endorse on each such Security a notation of such Guarantee."
IN WITNESS WHEREOF, the parties hereby have caused this Fifth
Supplemental Indenture to be duly executed, and their respective seals to be
hereunto affixed and attested all as of the day and year first above written.
CHRYSLER FINANCIAL COMPANY L.L.C.
By: /s/ D.M. Cantwell
Name: D.M. Cantwell
Title: Vice President and
Treasurer
[Seal]
Attest:
/s/ B.C. Babbish
Name: B.C. Babbish
Title: Assistant Secretary
DAIMLERCHRYSLER AG,
as Guarantor
By: /s/ Horst Eidermuller
Name: Horst Eidermuller
Title: Vice President
By: /s/ Siegfried Schwung
Name: Siegfried Schwung
Title: Associate General Counsel
UNITED STATES TRUST COMPANY OF NEW YORK,
as successor Trustee
By: /s/ Patricia Stermer
Name: Patricia Stermer
Title: Assistant Vice President
[Seal]
Attest:
/s/ Jason G. Gregory
Name: Jason G. Gregory
Title: Assistant Secretary
STATE OF MICHIGAN )
ss.:
COUNTY OF OAKLAND )
On this 9th day of February, 1999, before me appeared D. M. Cantwell,
to me personally known, who, being by me duly sworn, did say that he is the
Vice President and Treasurer of CHRYSLER FINANCIAL COMPANY L.L.C., one of the
parties described in and which executed the above instrument, and that the seal
affixed to such instrument is the seal of such company, and that such
instrument was signed and sealed on behalf of such company by authority of its
Managers, and such Vice President and Treasurer acknowledged such instrument to
be the free act and deed of such company.
/s/ Juanita M. Hedrick
[NOTARIAL SEAL] Notary Public, Wayne County, MI
My Commission Expires
February 27, 2003
STATE OF NEW YORK )
ss.:
COUNTY OF NEW YORK )
On this 9th day of February, 1999, before me appeared Patricia
Stermer to me personally known, who, being by me duly sworn, did say that he or
she is Assistant Vice President of UNITED STATES TRUST COMPANY OF NEW YORK, one
of the parties described in and which executed the above instrument, and that
he or she knows the corporate seal of such company, and that the seal affixed
to such instrument is such company seal; and that it was so affixed pursuant to
authority of the Board of Directors of such company, and that he or she signed
his or her name thereto pursuant to like authority.
/s/ Christine C. Collins
[NOTARIAL SEAL] Notary Public, State of New York
No. 03-4624735
Qualified Bronx County
Commission Expires March 30, 2000