EXHIBIT INDEX
Exhibit
Number Description of Exhibit
------ ----------------------
**1.1 Form of Underwriting Agreement for Common Stock.
**1.2 Form of Underwriting Agreement for Other Securities.
2.1 Share Purchase Agreement dated October 3, 2001 by and among the
shareholders of Ivron Systems Ltd. and Gentner Ventures, Inc. and
Clearone (incorporated by reference from ClearOne's current report
on Form 8-K dated October 18, 2001).
2.2 First Amendment to the Share Purchase Agreement among ClearOne
and the former shareholders of Ivron Systems Ltd. dated as of
April 8, 2002 (incorporated by reference from ClearOne's
current report on Form 8-K dated April 10, 2002).
2.3 Agreement and Plan of Merger, by and among ClearOne, E.mergent,
Inc. and Tundra Acquisition Inc. (incorporated by reference from
ClearOne's registration statement on Form S-4 dated February 6,
2002).
2.4 Amendment No. 1 to Agreement and Plan of Merger dated as of
March 29, 2002, by and among ClearOne, E.mergent, Inc. and Tundra
Acquisition Inc. (incorporated by reference from ClearOne's
registration statement on Form S-4/A dated April 15, 2002).
3.1 Articles of Incorporation dated July 7, 1983.
3.2 Amendment to Articles of Incorporation dated March 26, 1985.
3.3 Corrected Amendment to Articles of Incorporation dated
September 10, 1986.
3.4 Amendment to Articles of Incorporation dated July 1, 1991.
3.5 Amendment to Articles of Incorporation dated December 12, 2001.
3.6 Bylaws, as adopted on August 24, 1993.
4.1 Form of Senior Debt Indenture.
4.2 Form of Subordinated Debt Indenture.
*4.3 Form of Stock Warrant Agreement.
*4.4 Form of Debt Warrant Agreement.
*5.1 Opinion of Clyde, Snow Sessions & Swenson, PC.
*5.2 Opinion of Shearman & Sterling.
12.1 Computation of Ratio of Earnings to Fixed Charges.
*23.1 Consent of Clyde, Snow Sessions & Swenson, PC included in
Exhibit 5.1.
*23.2 Consent of Shearman & Sterling, included in Exhibit 5.1.
23.3 Consent of Ernst & Young LLP, as independent accountants for
ClearOne Communications, Inc.
23.4 Consent of Deloitte & Touche LLP, as independent accountants for
E.mergent, Inc.
*24.1 Powers of Attorney (included on signature pages to this
registration statement).
*25.1 Form T-1 Statement of Eligibility of the Senior Indenture Trustee
and Subordinated Indenture Trustee
.
- ---------------
* Previously filed with the registration statement filed on July 23, 2002.
** To be filed as an exhibit to a report on Form 8-K.
Exhibit 3.1
ARTICLES OF INCORPORATION
OF
INSULAR, INC.
We, the undersigned, natural persons of twenty-one (21) years or more,
acting as incorporators of a corporation under the Utah Business Corporation
Act, adopt the following Articles of Incorporation for such corporation;
ARTICLE I
Corporate Name
--------------
The name of this corporation is
INSULAR, INC.
ARTICLE II
Duration of the Corporation
---------------------------
The Corporation shall have perpetual existence.
ARTICLE III
Purposes
--------
The general purposes and objectives for which the corporation is
organized are:
(a) To engage in the business of producing, manufacturing and
marketing of air-conditioner covers.
(b) To have and to exercise all powers now or hereafter
conferred by the laws of the State of Utah upon corporations organized pursuant
to the laws under which the corporation is organized and any and all acts
amendatory thereof and supplemental thereto, and to engage in any other lawful
activities.
(c) The above enumerated powers shall not be construed as
limiting or restricting in any manner the powers of this corporation which shall
always have such incidental powers as may be connected with or related to any
specific power herein enumerated, but are in furtherance of, and in addition to
and not in limitation of, said general powers.
ARTICLE IV
Shares
------
The aggregate number of shares which this corporation shall have
authority to issue is fifty million (50,000,000) shares of common stock of a par
value of one mil ($0.001) per share. All shares of common stock of this
corporation shall be of the same class and shall have the same rights and
preferences. Fully paid shares of common stock of this corporation shall not be
liable to any further call or assessment.
ARTICLE V
Pre-emptive Rights
------------------
The authorized shares of common stock of this corporation may be issued
at such time, upon such terms and conditions, and for such consideration as the
Board of Directors of this corporation shall determine; provided, however, that
the share-holders shall have pre-emptive rights to acquire unissued shares of
common stock of this corporation.
ARTICLE VI
Voting of Shares
----------------
As to all actions to be voted on by the shareholders, each holder of
common stock of the corporation shall be entitled to one vote for each share of
such stock standing in his name on the books of the corporation, and shall not
be entitled to accumulate votes for the purpose of electing directors.
ARTICLE VII
Commencing Business
-------------------
This corporation shall not commence business until consideration of a
value of at least One Thousand Dollars ($1,000.000) shall have been received by
this corporation for the issuance of its shares of common stock.
ARTICLE VIII
By-Laws
-------
The Directors shall and the shareholders may adopt By-Laws which are
not inconsistent with law or these Articles of Incorporation for the regulation
and management of the affairs of this corporation. These By-Laws may be amended
from time to time, or repealed, pursuant to law.
ARTICLE IX
Registered Office and Agent
---------------------------
The address of this corporation's initial registered office and the
name of its original registered agent at such address is:
NAME ADDRESS
---- -------
Jace N. Green 4048 Barker Road
West Valley City, Utah 84119
ARTICLE X
Directors
---------
The number of Directors constituting the initial Board of Directors of
this corporation is three (3), and subsequent to the organizational meeting of
this corporation, the number of Directors shall be determined by the By-Laws of
this corporation. The names and addresses of the persons who are to serve as
Directors until the First Meeting of Shareholders of this Corporation or until
their successors are elected and qualified, are:
NAME ADDRESS
---- -------
Joseph Y. Hornsby 1132 Montgomery Street
Salt Lake City, Utah 84104
Elaine Avilez 4048 Barker Road
West Valley City, Utah 84119
Jace N. Green 4048 Barker Road
West Valley City, Utah 84119
ARTICLE XI
INCORPORATORS
-------------
The name and address of each incorporator is:
NAME ADDRESS
---- -------
Joseph Y. Hornsby 1132 Montgomery Street
Salt Lake City, Utah 84104
Elaine Avilez 4048 Barker Road
West Valley City, Utah 84119
Jace N. Green 4048 Barker Road
West Valley City, Utah 84119
ARTICLE XII
OFFICER AND DIRECTORS CONTRACT
------------------------------
No contract or other transaction between this Corporation and any other
corporation shall be affected by the fact that a Director or Officer of this
Corporation is interested in, or is a Director or other Officer of such other
Corporation. Any Director, individually or with others, may be a party to, or
may be interested in any transaction of this Corporation or any transaction in
which this Corporation is interested. No contract or other transaction of this
Corporation with any person, firm or corporation shall be affected by the fact
that any Director of this Corporation (a) is a party to, or is interested in,
such contract, act or transaction, or (b) is in some way connected with such
person, firm or corporation. Each person who is now or may become a Director of
this Corporation is hereby relieved from and indemnified against liability that
might otherwise obtain in the event such Director contracts with this
Corporation for the benefit of himself or any firm, association or corporation
in which he may be interested in any way, provided said Directors acts in good
faith.
DATED this 7th day of July , 1983
------------ -------------
/s/ Joseph Y. Hornsby
---------------------------
Joseph Y. Hornsby
/s/ Elaine Avilez
---------------------------
Elaine Avilez
/s/ Jace N. Green
---------------------------
Jace N. Green
STATE OF UTAH )
:
COUNTY OF SALTE LAKE )
I, the undersigned Notary Public, hereby certify that Joseph Y.
Hornsby, Elaine Avilex, and Jace N. Green personally appeared before me, and
being duly sworn by me, severally declared that they are the persons who signed
the foregoing instrument as incorporators and that the statements therein
contained are true
/s/ Judith R. Willard
---------------------------
NOTARY PUBLIC
Residing at Salt Lake
---------------------
My Commission Expires:
6-15-85
- ---------------------
Exhibit 3.2
ARTICLES OF AMENDMENT
TO THE
ARTICLES OF INCORPORATION
OF
INSULAR, INC.
WE, THE UNDERSIGNED, pursuant to the Utah Business Corporation Act,
hereby adopt the following Articles of Amendment as a revision of the Articles
of Incorporation of Insular, Inc.
ARTICLE I
---------
The name of the corporation is Insular, Inc.
ARTICLE II
----------
The duration of the corporation is perpetual.
ARTICLE III
-----------
The following amendments to the Articles of Incorporation were approved
by the shareholders:
Article I of the Articles of Incorporation of this Corporation is
amended so that it will read in its entirety as follows:
The name of this Corporation is Gentner Electronics Company.
Article III of the Articles of Incorporation of this Corporation is
amended so that it will read in its entirety as follows:
The purpose for which this Corporation is organized is the engineering,
designing, consulting, servicing, maintaining and repairing and
manufacturing of electronic equipment and all matters related or
ancillary thereto and to do all things and engage in all lawful
transactions which a corporation organized under the laws of the State
of Utah might do or engage in, even though not expressly stated herein.
Article V of the Articles of Incorporation of this Corporation is
amended so that it will read in its entirety as follows:
The authorized and treasury stock of this Corporation may be issued at
such time, upon such terms and conditions and for such consideration as
the Board of Directors shall determine. Shareholders shall not have
pre-emptive rights to acquire unissued shares of the stock of this
Corporation.
Articles X of the Articles of Incorporation of this Corporation is
amended so that it will read in its entirety as follows:
The Board of Directors shall consist of not less than three (3) nor
more than nine (9) members as the Board of Directors may itself from
time to time determine.
ARTICLE IV
----------
The amendments set forth in Article III were adopted March 26, 1985.
ARTICLE V
---------
The number of shares issued and outstanding and entitled to vote on
said amendments on March 26, 1985 was 5,763,200.
ARTICLE VI
----------
4,121,900 shares voted for said amendments, and 0 shares voted against
said amendments.
DATED this 26th day of March, 1985.
INSULAR, INC.
By: /s/ Craig Niebuhr
------------------------------------
Craig Niebuhr, President
By: /s/ Jace Green
------------------------------------
Jace Green, Secretary
STATE OF UTAH }
: ss.
County of Salt Lake }
I, THE UNDERSIGNED, a Notary Public, hereby certify that on the 26th
day of March, 1985, Craig Niebuhr and Jace Green personally appeared before me
who being by me first duly sworn severally declared that they are the persons
who signed the foregoing document as corporate officers and that the statements
therein contained are true.
DATED this 26th day of March, 1985.
/s/ Notary Public
------------------------------------
NOTARY PUBLIC
My commission expires: Residing at:
5-29-88 Salt Lake City, Utah
- ---------------------- ------------------------------------
CONSENT TO USE OF NAME
The undersigned officer of Gentner Engineering Company hereby consents
to Insular, Inc. changing its name to Gentner Electronics Company. Concurrent
with such change Gentner Engineering Company has become a wholly owned
subsidiary of Insular, Inc.
Dated: March 26, 1985.
GENTNER ENGINEERING COMPANY
/s/ Russell D. Gentner
-------------------------------------
By: Russell D. Gentner, President
Exhibit 3.3
CORRECTED
---------
ARTICLES OF AMENDMENT
---------------------
TO
--
ARTICLES OF INCORPORATION
-------------------------
OF GENTNER ELECTRONICS COMPANY
------------------------------
(formerly Insular, Inc.)
------------------------
We, the undersigned, pursuant to the Utah Business Corporation Act,
hereby file and adopt the following Corrected Articles of Amendment correcting
those certain Articles of Amendment filed and approved by the Division of
Corporations and Commercial Code of the Utah State Department of Business
Regulation on the 26th day of March, 1985. These Corrected Articles of Amendment
correct a typographical error in the previous Articles of Amendment which
erroneously set forth the name of the corporation as Gentner Electronics
Company, rather than the propertly and duly adopted name of Gentner Electronics
Corporation. Accordingly, Article I of the Articles of Incorporation shall be
amended to read as follows:
ARTICLE I
---------
The name of the Corporation is Gentner Electronics Corporation.
This amendment of the corporate name was adopted by majority vote of
the stockholders of the corporation at the annual meeting of stockholders held
March 26, 1985. The number of shares issues and outstanding and entitled to vote
on said amendment on March 26, 1985 was 5,763,200, and 4,121,900 shares voted
for said amendment and 0 shares voted against said amendment.
DATED this 10th day of September, 1986.
GENTNER ELECTRONICS COMPANY
A Utah corporation
By: /s/ Russell D. Gentner
-------------------------------
RUSSELL D. GENTNER
President
By: /s/ William H. Gillman
-------------------------------
WILIAM H. GILLMAN
Secretary
VERIFICATION
------------
Sate of Utah )
: ss.
County of Salt Lake )
RUSSELL D. GENTNER, being first duly sworn upon oath, deposes and says
that he is the President of Gentner Electronics Company herein; that he has read
the above and foregoing Corrected Articles of Amendment of Articles to
Incorporation of Gentner Electronics Company, formerly Insular, Inc., knows the
contents thereof; and that the same are true of his own knowledge, except as to
matters therein alleged upon information and belief and as to those matters he
believes them to be true.
/s/ Russell D. Gentner
-----------------------------
RUSSELL D. GENTNER
SUBSCRIBED AND SWORN to before me this 10th day of September, 1986.
My Commission Expires: /s/ Willie Steed
-----------------------------
NOTARY PUBLIC
10-6-86 Residing at: Utah
- ----------------------
VERIFICATION
------------
Sate of Utah )
: ss.
County of Salt Lake )
WILLIAM H. GILLMAN, being first duly sworn upon oath, deposes and says
that he is the President of Gentner Electronics Company herein; that he has read
the above and foregoing Corrected Articles of Amendment of Articles to
Incorporation of Gentner Electronics Company, formerly Insular, Inc., knows the
contents thereof; and that the same are true of his own knowledge, except as to
matters therein alleged upon information and belief and as to those matters he
believes them to be true.
/s/ William H. Gillman
------------------------------
WILLIAM H. GILLMAN
SUBSCRIBED AND SWORN to before me this 10th day of September, 1986.
My Commission Expires: /s/ Willie Steed
------------------------------
NOTARY PUBLIC
10-6-85 Residing at: Utah
- ----------------------
Exhibit 3.4
ARTICLES OF AMENDMENT
TO
ARTICLES OF INCORPORATION
OF
GENTNER ELECTRONICS CORPORATION
The undersigned, being the President and Secretary of respectively of
Gentner Electronics Corporation (the "Company"), a Utah corporation, hereby
verify the following:
1. The name of the Company is Gentner Electronics Corporation;
2. Article I of the Articles of Incorporation of the Company has been
amended to read in its entirety as follows: "The name of the Corporation is
Gentner Communications Corporation."
3. This amendment was adopted by the shareholders on July 1, 1991.
4. The number of shares of common stock that were outstanding on July
1, 1991 was 2,979,400 shares, all of which shares were entitled to vote on this
amendment.
5. The number of shares that were voted for this amendment was
2,076,473 shares. The number of shares that were voted against this amendment
were 0 shares.
IN WITNESS WHEREOF, these Articles of Amendment have been executed on
this 1st day of July, 1991, and the President and Secretary each verify that
they have each read these Articles of Amendment and that the same are true.
By: /s/ William V. Trowbridge, Jr.
----------------------------------
William V. Trowbridge, Jr.
President
By: /s/ David L. Harmon
----------------------------------
David L. Harmon
Secretary
Exhibit 3.5
ARTICLES OF AMENDMENT TO
THE ARTICLES OF INCORPORATION
OF GENTNER COMMUNICATIONS CORPORATION
(hereafter ClearOne Communications, Inc.)
Pursuant to Sections 16-10a-1003 and 16-10a-1006 of the Utah Revised
Business Corporation Act, the undersigned, James A. Valeo, being the Vice
President of Gentner Communications Corporation, a Utah corporation (the
"Corporation"), hereby certifies the following:
1. Articles I of the Articles of Incorporation of the Corporation is deleted
in its entirety and the following is substituted therefore:
ARTICLES I
NAME
The name of this corporation is ClearOne Communications Inc.
[End of Article I]
2. This Amendment to the Articles of Incorporation (the "Amendment") was
adopted (i) by the Board of Directors of the Corporation as of September
17, 2001, and (ii) with the recommendation of the Board of Directors, at
a meeting of the shareholders of the Corporation held on November 14,
2001.
3. As of the date of the record date for the shareholders meeting referenced
in paragraph 2, the Corporation had 8,628,478 shares of outstanding
Common Stock all of which were entitled to vote on the above noted
Amendment and 5,544,252 of which were indisputably present at the
shareholder's meeting at which the vote was taken. Common Stock is the
only class of stock of the Corporation. The Amendment was approved,
receiving 5,468,778 votes, which constituted a majority of the
outstanding shares of Common Stock of the Corporation.
4. These Articles of Amendment to the Articles of Incorporation shall become
effective on January 1, 2002.
IN WITNESS WHEREOF, the undersigned has executed these Articles of
Amendment to the Articles of Incorporation as of this 12th day of December,
2001.
GENTNER COMMUNICATIONS
CORPORATION, a Utah corporation
By: /s/ James A. Valeo
--------------------------------
James A. Valeo, Vice President
Exhibit 3.6
Gentner Communications Corporation
----------------------------------
BYLAWS
------
Adopted by Resolution dated August 24, 1993
ARTICLE I. OFFICES
1.1 Business Offices. The principal office of the corporation shall be
located in such place as shall be designated by the board of directors. The
corporation may have such other offices as the board of directors may designate
or as the business of the corporation may require from time to time.
1.2 Registered Office. The registered office of the corporation required to
be kept by the Utah Revised Business Corporation Act (as it may be amended from
time to time, the "Act") shall be located within the State of Utah and may be,
but need not be, identical with the principal office. The address of the
registered office may be changed from time to time.
ARTICLE II. SHAREHOLDERS
2.1 Annual Meeting. The annual meeting of the shareholders shall be held at
such date and time as shall be fixed by the board of directors, for the purpose
of electing directors and for the transaction of such other business as may come
before the meeting.
2.2 Special Meetings. Special meetings of the shareholders, for any purpose
or purposes described in the meeting notice, may be called by the chairman of
the board of directors or by the president, and shall be called by the president
at the written request of the directors of not less than one-tenth of all the
votes entitled to be cast on any issue proposed to be considered at the meeting.
2.3 Place of Meeting. The board of directors may designate any place as the
place of meeting for any annual or any special meeting of the shareholders. If
no designation is made by the directors, the place of meeting shall be the
principal office of the corporation.
2.4 Notice of Meeting
(a) Content and Mailings Requirements. Written notice stating the
date, time and place of each annual or special shareholder meeting shall be
delivered no fewer than 10 nor more than 40 days before the date of the meeting,
either personally or by mail, by or at the direction of the president, the board
of directors, or other persons calling the meeting, to each shareholder of
record entitled to vote at such meeting and to any other shareholder entitled by
the Act or the articles of incorporation to receive notice of the meeting.
Notice of special shareholder meetings shall include a description of the
purpose or purposes for which the meeting is called.
(b) Effective Date. Written notice shall be deemed to be effective at
the earlier of (1) when mailed, if addressed to the shareholder's address shown
in the corporation's current record of shareholders; or (2) when received, if
hand delivered or sent by electronic or facsimile transmission.
(c) Effect of Adjournment. If any shareholder meeting is adjourned to
a different date, time or place, notice need not be given of the new date, time
and place, if the new date, time and place is announced at the meeting before
adjournment. If a new record date for the adjourned meeting is or must be fixed,
then notice must be given pursuant to the requirements of this Section to
shareholders of record.
2.5 Waiver of Notice
(a) Written Waiver. A shareholder may waive any notice required by the
Act, the articles of incorporation or the bylaws, by a writing signed by the
shareholder, entitled to the notice, which is delivered to the corporation
(either before or after the date and time stated in the notice) for inclusion in
the minutes or filing with the corporate records.
(b) Attendance at Meetings. A shareholder's attendance at a meeting:
(1) waives objection to lack of notice or defective notice of the meeting,
unless the shareholder at the beginning of the melting objects to holding the
meeting or transacting business at the meeting because of lack of notice or
effective notice; and (2) waives objection to consideration of a particular
matter at the meeting that is not within the purpose or purposes described in
the meeting notice, unless the shareholder objects to considering the matter
when it is presented.
2.6 Record Date
(a) Fixing of Record Date. For the purpose of determining shareholders
entitled to notice of or to vote at any meeting of shareholders, or shareholders
entitled to receive payment of any distribution, or in order to make a
determination of shareholders for any other proper purpose, the board of
directors may fix in advance a date as the record date. Such record date shall
not be more than 70 days prior to the date on which the particular action
requiring such determination of shareholders is to be taken. If no record date
is so fixed by the board for the determination of shareholders entitled to
notice of, or to vote at, a meeting of, shareholders, the record date for
determination of such shareholders shall be at the close of business on the day
before the first notice is delivered to shareholders. If no record date is fixed
by the board for the determination of shareholders entitled to receive a
distribution, the record date shall be the date the board authorizes the
distribution. If no record date is fixed by the board for the determination of
shareholders entitled to take action without a meeting, the record date shall be
the date the first shareholder signs a consent.
(b) Effect of Adjournment. When a determination of shareholders
entitled to vote at any meeting of shareholders has been made as provided in
this section, such determination shall apply to any adjournment thereof unless
the board of directors fixes a new record date, which it must do if the meeting
is adjourned to a date more than 120 days after the date fixed for the original
meeting.
2.7 Shareholder List. After fixing a record date for a shareholders'
meeting, the corporation shall prepare a list of the names of its shareholders
entitled to be given notice of the meeting. The list must be arranged by voting
group and within each young group by class or series of shares, must be
alphabetical within each class or series, and must show the address of, and the
number of shares held by, each shareholder. The shareholder list must be
available for inspection by any shareholder, beginning on the earlier of ten
days before the meeting for which the list was prepared or two business days
after notice of the meeting is given for which the list was prepared and
continuing through the meeting and any adjournment thereof. The list shall be
available at the corporation's principal office or at a place identified in the
meeting notice in the city where the meeting will be held.
2.8 Shareholder Quorum and Voting Requirements
(a) Quorum. Shares entitled to vote as a separate voting group may
take action on a matter at a meeting only if a quorum of those shares exists
with respect to that matter. Unless the articles of incorporation or the Act
provide otherwise, the number of shares of a voting group that is present at a
meeting shall constitute a quorum of that voting group for action on that
matter. Once a share is represented for any purpose at a meeting, it is deemed
present for quorum purposes for the remainder of the meeting and for any
adjournment of that meeting unless a new record date is or must be set for that
adjourned meeting.
(b) Voting Groups. If the articles of incorporation or the Act provide
for voting by a single voting group on a matter, action on that matter is taken
when voted upon by that voting group. If the articles of incorporation or the
Act provide for voting by two or more voting groups on a matter, action on that
matter is taken only when voted upon by each of those voting groups counted
separately. Action may be taken by one voting group on a matter even though no
action is taken by another voting group entitled to vote on the matter.
(c) Shareholder Action. If a quorum exists, action on a matter, other
than the election of directors, by a voting group is approved if the votes cast
within the voting group favoring the action exceed the votes cast opposing the
action, unless the articles of incorporation or the Act require a greater number
of affirmative votes. Directors are elected by a plurality of the votes cast by
the shares entitled to vote in the election at a meeting at which a quorum is
present.
2.9 Proxies. At all meetings of shareholders, a shareholder may vote in
person or by proxy which is executed in writing by the shareholder or which is
executed by his or her duly authorized attorney-in-fact. Such proxy shall be
filed with the secretary of the corporation or other person authorized to
tabulate votes before or at the time of the meeting. No proxy shall be valid
after 11 months from the date of its execution unless otherwise provided in the
proxy.
2.10 Voting of Shares. Unless otherwise provided in the articles of
incorporation or by applicable law, each outstanding share, regardless of class,
is entitled to one vote upon each matter submitted to a vote at a meeting of
shareholders. Except as provided by specific court order, no shares of the
corporation owned, directly or indirectly, by a second corporation, domestic or
foreign, shall be voted at any meeting or counted in determining the total
number of outstanding shares at any given time for purposes of any meeting if a
majority of the shares entitled to vote for the election of directors of such
second corporation arc held by the corporation. The prior sentence shall not
limit the power of the corporation to vote any shares, including its own shares,
held by it in a fiduciary capacity.
2.11 Meetings by Telecommunications. Any or all shareholders may
participate in an annual of special meeting by, or conduct the meeting through
the use of, any means of communication by which all shareholders participating
may hear each other during the meeting. A shareholder participating in a meeting
by this means is deemed to be present in person at the meeting.
2.12 Action Without a Meeting
(a) Written Consent. Any action which may be taken at a meeting of the
shareholders may be taken without a meeting and without prior notice if one or
more consents in writing, setting forth the action so taken, shall be signed by
the holders of outstanding shares having not lass than the minimum number of
votes that would be necessary to authorize or take such action at a meeting at
which all shareholders entitled to vote with respect to the subject matter
thereof were present and voted. Action taken under this Section has the same
effect as action taken at a meeting of shareholders and may be described as such
in any document.
(b) Post-Consent Notice. Unless the written consents of all
shareholders entitled to vote have been obtained, notice of any shareholder
approval without a meeting shall be given at least ten days before the
consummation of the action authorized by such approval to: (1) those
shareholders entitled to vote who have not consented in writing; and (2) those
shareholders not entitled to vote and to whom the Act requires that notice of
the proposed action be given. Any such notice must contain or be accompanied by
the same material that is required under the Act to be sent in a notice of
meeting at which the proposed action would have been submitted to the
shareholders for action.
(c) Effective Date and Revocation of Consents. No action taken
pursuant to this Section 2.12 shall be effective unless all written consents on
which the corporation relies for the taking of an action are received by the
corporation within a 60-day period and not revoked. Such action is effective as
of the date the last written consent. necessary to effect the action is
received, unless all of the written consents specify a later date as the
effective date of the action. If the corporation has received written consents
signed by all shareholders entitled to vote with respect to the action, the
effective date of the action may be any date that is specified in all the
written consents as the effective date of the action. Any such writing may be
received by the corporation by electronically transmitted facsimile or other
form of communication providing the corporation with a complete copy thereof,
including a copy of the signatures thereto. Any shareholder giving a written
consent pursuant to this Section may revoke the consent by a signed writing
describing the action and stating that the consent is revoked, provided that
such writing is received by the corporation prior to the effective date of the
action.
(d) Unanimous Consent for Election of Directors. Notwithstanding
subsection (a) of this Section 2.12, directors may not be elected by written
consent unless such consent is unanimous by all shares entitled to vote for the
election of directors.
ARTICLE III. BOARD OF DIRECTORS
3.1 General Powers. All corporate powers shall be exercised by or under the
authority of, and the business and affairs of the corporation shall be managed
under the direction of, the board of directors.
3.2 Number, Tenure and Qualifications. The authorized number of directors
shall be not less than three nor more than nine. The current number of directors
shall be within the limits specified above, as determined (or as amended from
time-to-time) by resolution adopted by either the shareholders or the directors.
Each director shall hold office until the next annual mating of shareholders or
until, the director's earlier death, resignation or removal. However, if a
director's term expires, the director shall continue to serve until his or her
successor shall have been elected and qualified, or until there is a decrease in
the number of directors.
3.3 Regular Meetings. The board of directors may provide, by resolution,
the time and place for the holding of regular meetings without other notice than
such resolution.
3.4 Special Meetings. Special meetings of the board of directors may be
called by or at the request of the chairman of the board of directors or the
president. The person authorized to call special meetings of the board of
directors may fix any place as the place for holding any special meeting of the
board of directors.
3.5 Notice of Special Meetings. Notice of the date, time and place of any
special director meeting shall be given at least two days previously thereto
either orally or in writing. Oral notice shall be effective when communicated in
a comprehensive manner. Written notice is effective as to each director at the
earlier of: (1) two days after mailing, if sent to the address of the director
shown on the records of the corporation; or (2) when received, if sent by
electronic or facsimile transmission. Any director may waive notice of any
meeting before or after the dace and time of the meeting stated in the notice.
Except as provided in the next sentence, the waiver must be in writing and
signed by the director entitled to the notice. A director's attendance at or
participation in a meeting shall constitute a waiver of notice of such meeting,
unless the director at the beginning of the meeting, or promptly upon his or her
arrival, objects to holding the meeting or transacting business at the meeting
because of lack of or defective notice; and does not thereafter vote for or
assent to action taken at the meeting. Unless required by the articles of
incorporation, neither the business to be transacted at, nor the purpose of, any
special meeting of the board of directors need be specified in the notice or
waiver of notice of such meeting.
3.6 Quorum and Voting
(a) Quorum. A majority of the number of directors prescribed by
resolution adopted pursuant to Section 3.2 of these Bylaws, or if no number is
prescribed, the number in office immediately before the meeting begins, shall
constitute a quorum for the transaction of business at any meeting of the board
of directors, unless the articles of incorporation require a greater number.
(b) Voting. The act of the majority of the directors present at a
meeting at which a quorum is present when the vote a taken shall be the act of
the board of directors unless the articles of incorporation require a greater
percentage.
(c) Presumption of Assent. A director who is present at a meeting of
the board of directors or a committee of the board of directors when corporate
action is taken is deemed to have assented to the action taken unless: (1) the
director objects at the beginning of the meeting, or promptly upon his or her
arrival, to holding or transacting business at the meeting and does not
thereafter vote for or assent to any action taken at the meeting; (2) the
director contemporaneously requests that his or her dissent or abstention as to
any specific action be entered in the minutes of the meeting; or (3) the
director causes written notice of his or her dissent or abstention as to any
specific action be received by the presiding officer of the meeting before its
adjournment of to the corporation immediately after adjournment of the meeting.
The right of dissent or abstention is nor available to a director who votes in
favor of the action taken.
3.7 Meetings by Telecommunications. Any or all directors may participate in
a regular or special meeting by, or conduct the meeting through the use of, any
means of communication by which all directors participating may hear each other
during the meeting. A director participating in a meeting by this means is
deemed to be present in person at the meeting.
3.8 Action Without a Meeting. Any action required or permitted to be taken
by the board of directors at a meeting may be taken without a meeting if all,
the directors consent to such action in writing. Action taken by written consent
is effective when the last director signs the consent, unless, prior to such
time, any director has revoked a consent by a signed writing received by the
corporation, or unless the consent specifies a different effective date. A
signed consent has the effect of an action taken at a meeting of directors and
may be described as such in any document.
3.9 Resignation. A director may resign at any time by giving a written
notice of resignation to the corporation. Such a resignation is effective when
the notice is received by the corporation unless the notice specifies a later
effective date, and the acceptance of such resignation shall not be necessary to
make it effective.
3.10 Removal. The shareholders may remove one or more directors at a
meeting called for that purpose if notice has been given that a purpose of the
meeting is such removal. The removal may be with or without cause unless the
articles of incorporation provide that directors may only be removed with cause.
If a director is elected by a voting group of shareholders, only the
shareholders of that voting group may participate in the vote to remove that
director. A director may be removed only if the number of votes cast to remove
him or her exceeds the number of votes cast not to remove him or her.
3.11 Vacancies. Unless the articles of incorporation provide otherwise, if
a vacancy occurs on the board of directors, including a vacancy resulting from
an increase in the number of directors; the shareholders may fill the vacancy.
During such time that the shareholders fail or are unable to fill such vacancies
then and until the shareholders act: (1) the board of directors may fill the
vacancy; or (2) if the directors remaining in office constitute fewer than a
quorum of the board, they may fill the vacancy by the affirmative vote of a
majority of all the directors remaining in office. If the vacant office was held
by a director elected by a voting group of shareholders; (1) if one or more
directors are elected by the same voting group, only such directors are entitled
to vote to fill the vacancy if it is filled by the directors; and (2) only the
holders of shares of that voting group are entitled to vote to fill the vacancy
if it is filled by the shareholders. A vacancy that will occur at a specific
later date (by reason of a resignation effective at a later date) may be filled
before the vacancy occurs but the new director may not take office until the
vacancy occurs.
3.12 Compensation. By resolution of the board of directors, each director
may be paid his or her expenses, if any, of attendance at each meeting of the
board of directors and may be paid a stated salary as director or a fixed sum
for attendance at each meeting of the board of directors or both. No such
payment shall preclude any director from serving the corporation in any other
capacity and receiving compensation therefor.
3.13 Committees. The board of directors may create one or more committees
and appoint members of the board of directors to serve on them. Each committee
must have two or more members, who serve at the pleasure of the board of
directors. Those sections of this Article 3 which govern meetings, action
without meetings, notice and waiver of notice, and quorum and voting
requirements of the board of directors, apply to committees and their members.
ARTICLE IV. OFFICERS
4.1 Number. The officers of the corporation shall be a chief executive
officer, a chief operating officer, a president, a chief financial officer, and
a secretary, each of whom shall be appointed by the board of directors. Such
other officers and assistant officers as may be deemed necessary, including any
vice presidents, may also be appointed by the board of directors. If
specifically authorized by the board of directors, an officer may appoint one or
more officers or assistant officers. The same individual may simultaneously hold
more than one office in the corporation.
4.2 Appointment and Term of Office. The officers of the corporation shall
be appointed by the board of directors, for a term as determined by the board of
directors. The designation of a specified term does not grant to the officer any
contract rights, and the board can remove the officer at any time prior to the
termination of such term. If no term is specified, the officer shall hold office
until he or she resigns, dies or until he or she is removed in the manner
provided in Section 4.3 of these Bylaws.
4.3 Removal. Any officer or agent may be removed by the board of directors
at any time, with or without cause. Such removal shall be subject to any rights
and obligations that such person may have under any contract with the
corporation.
4.4 Resignation. Any officer may resign at any time, subject to any rights
or obligation under any existing contracts between the officer and the
corporation, by giving notice to the president or board of directors. An
officer's resignation shall be effective when received by the corporation,
unless the notice specifies a later effective date, and the acceptance of such
resignation shall not be necessary to make it effective.
4.5 Authority and Duties of Officers. The officers of the corporation shall
have the authority and shall exercise the powers and perform the duties
specified below and as may be additionally specified by the board of directors
or these Bylaws, except that in each event each officer shall exercise such
powers and perform such duties as may be required by law.
(a) Chief Executive Officer. The chief executive officer shall
supervise and control all the business and affairs of the corporation, subject
to the direction of the board of directors. Unless a chairman of the board has
been appointed, the chief executive officer shall preside at all meetings of the
board of directors or shareholders.
(b) Chief Operating Officer. The chief operating officer shall be
responsible for overseeing all the operations of the corporation, subject to the
direction of the chief executive officer.
(c) President. The president shall manage the day-to-day affairs of
the corporation, subject to the direction of the chief executive and chief
operating officers. The president may sign, with the secretary or any other
proper officer of the corporation thereunto authorized by the board of
directors, certificates for shares of the corporation and deeds, mortgages,
bonds, contracts, or other instruments which the board of directors has
authorized to be executed, except in cases where the signing and execution
thereof shall be expressly delegated by the board of directors or by these
Bylaws to some other officer or agent of the corporation, or shall be required
by law to be otherwise signed or executed. In general, the president shall
perform all duties incident to the office of president and such other duties as
may be prescribed by the board of directors from time to time.
(d) Vice-President. If appointed, the vice-president (or if there is
more than one, each vice-president) shall assist the president and shall perform
such duties as may be assigned to him or her by the president or by the board of
directors. If appointed, in the absence of the president or in the event of his
death, inability or refusal to act, the vice-president (or in the event there is
more than one vice-president, the vice presidents in the order designated at the
time of their election, or in the absence of, any designation, then in the order
of their appointment) shall perform the duties of the president, and when so
acting, shall have all the powers of and be subject to all the restrictions upon
the president. (If there is no vice-president, then the chief financial officer
shall perform such duties of the president.)
(e) Chief Financial Officer. The chief financial officer shall: (i)
have charge and custody of and be responsible for all funds and securities of
the corporation; (ii) receive and give receipts for moneys due and payable to
the corporation from any source whatsoever, and deposit all such moneys in the
name of the corporation in such banks, trust companies, or other depositaries as
shall be selected by the board of directors; and (iii) in general, perform all
of the duties incident to the office of chief financial officer and such other
duties as from time to time may be assigned by the president or by the board of
directors. If required by the board of directors, the chief financial officer
shall give a bond for the faithful discharge of his or her duties in such sum
and with such surety or sureties as the board of directors shall determine. A
controller may be appointed to assist the chief financial officer.
(f) Secretary. The secretary shall: (i) keep the minutes of the
proceedings of the shareholders, the board of directors and any committees of
the board in one or more books provided for that purpose; (ii) see that all
notices are duly given in accordance with the provisions of these bylaws or as
required by law; (iii) be custodian of the corporate records; (iv) when
requested or required, authenticate any records of the corporation; (v) keep a
register of the post office address of each shareholder which shall be furnished
to the secretary by such shareholder; (vi) sign with the president, or a
vice-president, certificates for shares of the corporation, the issuance of
which shall have been authorized by resolution of the board of directors; (vii)
have general charge of the stock transfer books of the corporation; and (viii)
in general, perform all duties incident to the office of secretary and such
other duties as from time to time may be assigned by the president or by the
board of directors. Assistant secretaries if any, shall have the same duties and
powers, subject to the supervision of the secretary.
4.6 Compensation. The salaries, bonuses, and other benefits of the officers
shall be fixed from time to time by the board of directors.
ARTICLE V. INDEMNIFICATION OF DIRECTORS, OFFICERS, AGENTS AND EMPLOYEES
5.1 Indemnification of Directors. The corporation shall indemnify any
individual made a party to a proceeding because the individual is or was a
director of the corporation, against liability incurred in the proceeding, but
only if such indemnification is both (i) determined permissible and (ii)
authorized, as such are defined in subsection (a) of this Section 5.1. Such
indemnification is further subject to the limitation specified in subsection
5.1(c).
(a) Determination and Authorization. The corporation shall not
indemnify a director under this section unless:
(1) a determination has been made in accordance with the procedures
set forth in Section 16-10a-906(2) of the Act that the director met the
standard of conduct set forth in subsection (b) below; and
(2) payment has been authorized in accordance with the procedures set
forth in Section 16-10a-906(4) of the Act based on a conclusion that the
expenses are reasonable, the corporation has the financial ability to make
the payment, and the financial resources of-the corporation should be
devoted to this use rather than some other use by the corporation.
(b) Standard of Conduct. The individual shall demonstrate that:
(1) his or her conduct was in good faith; and
(2) he or she reasonably believed that his or her conduct was in, or
not opposed to, the corporation's best interests; and
(3) in the case of any criminal proceeding, he or she had no
reasonable cause to believe his or her conduct was unlawful.
(c) No Indemnification in Certain Circumstances. The corporation shall
not indemnify a director under this Section 5.1:
(1) in connection with a proceeding by or in the right of the
corporation in which the director was adjudged liable to the corporation;
or
(2) in connection with any other proceeding charging that the director
derived an improper personal benefit, whether or not involving action in
his or her official capacity, in which proceeding he or she was adjudged
liable on the basis that he or she derived an improper personal benefit.
(d) Indemnification in Derivative Actions Limited. Indemnification
permitted under this Section 5.1 in connection with a proceeding by or in the
right of the corporation is limited to reasonable expenses incurred in
connection with the proceeding.
5.2 Advance of Expenses for Directors. If a determination is made,
following the procedures of Section 16-10a-906(2) of the Act, that the director
has met the following requirements and if an authorization of payment is made
following the procedures and standards set forth in Section 16-10a-906(4) of the
Act, then the corporation shall pay for or reimburse the reasonable expenses
incurred by a director who is a party to a proceeding in advance of final
disposition of the proceeding, if:
(a) the director furnishes the corporation a written affirmation of
his or her good faith belief that he or she has met, the standard of conduct
described in Section 5.1;
(b) the director furnishes the corporation a written undertaking,
executed personally or on his or her behalf, to repay the advance if it is
ultimately determined that he or she did not meet the standard of conduct; and
(c) a determination is made that the facts then known to those making
the determination would not preclude indemnification under Section 5.1 of these
Bylaws or Part 9 of the Act.
5.3 Indemnification of Officers, Agents and Employee Who Are Not Directors.
The board of directors may indemnify and advance expenses to any officer,
employee or agent of the corporation who is not a director of the corporation to
any extent consistent with public policy, as determined by the general or
specific actions of the board of directors.
5.4 Insurance. By action of the board of directors, notwithstanding any
interest of the directors in such action, the corporation may purchase and
maintain liability insurance on behalf of a person who is or was a director,
officer, employee, fiduciary or agent of the corporation, against any liability
asserted against or incurred by such person in that capacity or arising from
such person's status as a director, officer, employee, fiduciary or agent,
whether or not the corporation would have the power to indemnify such person
under the applicable provisions of the Act.
ARTICLE VI. STOCK
6.1 Issuance of Shares. The corporation may issue the number of shares of
each class or series of capital stock authorized by the articles of
incorporation. The issuance or sale by the corporation of any shares of its
authorized capital stock of any class shall be made only upon authorization by
the board of directors, unless otherwise provided by statute. The board of
directors may authorize the issuance of shares for consideration consisting of
any tangible or intangible properly or benefit to the corporation, including
cash, promissory notes, services performed, contracts or arrangements for
services to be performed, or other securities of the corporation. Shares shall
be issued for such consideration as shall be fixed from time to time by the
board of directors. The terms of any issuance of stock in exchange for property
or services to be received by the corporation in the future shall be set forth
in writing.
6.2 Certificates for Shares
(a) Content. Shares may but need not be represented by certificates in
such form as determined by the board of directors and stating on their face, at
a minimum, the name of the corporation and that it is formed under the laws of
the State of Utah, the name of the person to whom issued, and the number and
class of shares and the designation of the series, if any, the certificate
represents. Such certificates shall be signed (either manually or by facsimile)
by the president or a vice-president and by the secretary or an assistant
secretary and may be sealed with a corporate seal or a facsimile thereof. Each
certificate for shares shall be consecutively numbered or otherwise identified.
(b) Legend as to Class or Series. If the corporation is authorized to
issue different classes of shares or different series within a class, the
designations, relative rights, preferences and limitations applicable to each
class and the variations in rights, preferences and limitations determined for
each series (and the authority of the board of directors to determine variations
for future series) must be summarized on the front or back of each certificate.
Alternatively, each certificate may state conspicuously on its front or back
that the corporation will furnish the shareholder this information on request in
writing and without charge.
(c) Shareholder List. The name and address of the person to whom the
shares represented thereby are issued, with the number of shares and date of
issue, shall be entered on the stock transfer books of the corporation.
(d) Transferring Shares. All certificates surrendered to the
corporation for transfer shall be cancelled and no new certificate shall be
issued until the former certificate for a like number of shares shall have been
surrendered and cancelled, except that in case of a lost, destroyed, or
mutilated certificate, a new one may be issued therefor upon such terms and
indemnity to the corporation as the board of directors may prescribe.
6.3 Shares Without Certificates. The board of directors may authorize the
issuance of some or all of the shares of any or all of its classes or series
without certificates. Within a reasonable time after the issuance or transfer of
shares without certificates. the corporation shall send the shareholder a
written statement of the information required on certificates under Section 6.2
of these Bylaws.
6.4 Registration of the Transfer of Shares. Registration of the transfer of
shares of the corporation shall be made only on the stock transfer books of the
corporation. In order to register a transfer, the record owner shall surrender
the shares to the corporation for cancellation, properly endorsed by the
appropriate person or persons with reasonable assurances that the endorsements
are genuine and effective. Unless the corporation has established a procedure by
which a beneficial owner of shares held by a nominee is to be recognized by the
corporation as the owner, the person in whose name shares stand in the books of
the corporation shall be deemed by the corporation to be the owner thereof for
all purposes.
ARTICLE VII. MISCELLANEOUS
7.1 Inspection of Records by Shareholders and Directors. A shareholder or
director of a corporation is entitled to inspect and copy, during regular
business hours at the corporation's principal office, any of the records of the
corporation required to be maintained by the corporation under the Act, if such
person gives the corporation written notice of the demand at least five business
days before the date on which such a person wishes to inspect and copy. The
scope of such inspection right shall be as provided under the Act.
7.2 Corporate Seal. The board of directors may provide a corporate seal
which may be circular in form and have inscribed thereon any designation
including the name of the corporation, the state of incorporation, and the words
"Corporate Seal."
7.3 Amendments. The corporation's board of directors may amend or repeal
the corporation's Bylaws at any time unless:
(a) the articles of incorporation or the Act reserve this power
exclusively to the shareholders in whole or part; or
(b) the shareholders, in adopting, amending or repealing a particular
bylaw, provide expressly that the board of directors may not amend or repeal
that bylaw; or
(c) the bylaw either establishes, amends or deletes a greater
shareholder quorum or voting requirement.
Any amendment which changes the voting or quorum requirement for the board must
meet the same quorum requirement and be adopted by the same vote and voting
groups required to take action under the quorum and voting requirements then in
effect or proposed to be adopted, whichever are greater.
7.4 Fiscal Year. The fiscal year of the corporation shall be established by
the board of directors.
[End of Bylaws]
Exhibit 4.1
================================================================================
CLEARONE COMMUNICATIONS, INC.,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Indenture
Dated as of _____ , 200_
Providing for the Issuance
of
Senior Debt Securities
================================================================================
CLEARONE COMMUNICATIONS, INC.
Reconciliation and tie between Trust Indenture Act of 1939
and Indenture dated as of __________ __, 2002
TRUST INDENTURE ACT SECTION INDENTURE SECTION
- ---------------------------------------------------- ---------------------
Section 310(a)(1)................................... 607
(a)(2).................................. 607
(b)..................................... 608
Section 312(c)...................................... 701
Section 314(a)...................................... 703
(a)(4).................................. 1005
(c)(1).................................. 102
(c)(2).................................. 102
(e)..................................... 102
Section 315(b)...................................... 601
Section 316(a) (last sentence)...................... 101 ("Outstanding")
(a)(1)(A)............................... 502, 512
(a)(1)(B)............................... 513
(b)..................................... 508
Section 317(a)(1)................................... 503
(a)(2).................................. 504
Section 318(a)...................................... 111
(c)..................................... 111
- --------------------------------------------------------------------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
----
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions.....................................................1
SECTION 102. Compliance Certificates and Opinions...........................10
SECTION 103. Form of Documents Delivered to Trustee.........................11
SECTION 104. Acts of Holders................................................11
SECTION 105. Notices, Etc., to Trustee and Company..........................13
SECTION 106. Notice to Holders; Waiver......................................13
SECTION 107. Effect of Headings and Table of Contents.......................14
SECTION 108. Successors and Assigns.........................................14
SECTION 109. Separability Clause............................................15
SECTION 110. Benefits of Indenture..........................................15
SECTION 111. Governing Law..................................................15
SECTION 112. Legal Holidays.................................................15
SECTION 113. Conflict of Any Provision of Indenture with Trust
Indenture Act................................................15
SECTION 114. No Recourse against Others.....................................15
SECTION 115. Waiver of Trial by Jury........................................16
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities............................................16
SECTION 202. Form of Trustee's Certificate of Authentication................17
SECTION 203. Securities Issuable in Global Form.............................17
SECTION 204. Form of Legend for Book-Entry Securities.......................18
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series...........................18
SECTION 302. Denominations..................................................23
SECTION 303. Execution, Authentication, Delivery and Dating.................23
SECTION 304. Temporary Securities...........................................25
SECTION 305. Registration, Registration of Transfer and Exchange............28
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities...............31
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
Interest Reset...............................................32
SECTION 308. Optional Extension of Maturity.................................35
SECTION 309. Persons Deemed Owners..........................................36
SECTION 310. Cancellation...................................................36
SECTION 311. Computation of Interest........................................37
SECTION 312. Currency and Manner of Payments in Respect of Securities.......37
SECTION 313. Appointment and Resignation of Successor Exchange Rate
Agent........................................................40
i
SECTION 314. CUSIP Numbers..................................................41
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture........................41
SECTION 402. Application of Trust Funds.....................................43
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default..............................................43
SECTION 502. Acceleration of Maturity; Rescission and Annulment.............44
SECTION 503. Collection of Indebtedness and Suits for Enforcement
by Trustee...................................................45
SECTION 504. Trustee May File Proofs of Claim...............................46
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
or Coupons...................................................47
SECTION 506. Application of Money Collected.................................47
SECTION 507. Limitation on Suits............................................47
SECTION 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and Additional Amounts, if Any..........48
SECTION 509. Restoration of Rights and Remedies.............................48
SECTION 510. Rights and Remedies Cumulative.................................48
SECTION 511. Delay or Omission Not Waiver...................................49
SECTION 512. Control by Holders of Securities...............................49
SECTION 513. Undertaking for Costs..........................................49
SECTION 514. Waiver of Past Defaults........................................49
SECTION 515. Waiver of Usury, Stay or Extension Laws........................50
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults.............................................50
SECTION 602. Certain Rights of Trustee......................................51
SECTION 603. Not Responsible for Recitals or Issuance of Securities.........52
SECTION 604. May Hold Securities............................................53
SECTION 605. Money Held in Trust............................................53
SECTION 606. Compensation and Reimbursement.................................53
SECTION 607. Corporate Trustee Required; Eligibility........................54
SECTION 608. Resignation and Removal; Appointment of Successor..............54
SECTION 609. Acceptance of Appointment by Successor.........................55
SECTION 610. Merger, Conversion, Consolidation or Succession to Business....57
SECTION 611. Appointment of Authenticating Agent............................57
SECTION 612. Conflicting Interests..........................................58
SECTION 613. Appointment of Co-Trustee......................................59
SECTION 614. Trustee's Application for Instructions from the Company........60
ii
ARTICLE SEVEN
HOLDERS' LISTS AND REOPRTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders...................60
SECTION 702. Reports by Trustee.............................................61
SECTION 703. Reports by Company.............................................61
SECTION 704. Calculation of Original Issue Discount.........................62
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms...........62
SECTION 802. Successor Person Substituted...................................62
SECTION 803. Officers' Certificate and Opinion of Counsel...................63
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders.............63
SECTION 902. Supplemental Indentures with Consent of Holders................65
SECTION 903. Execution of Supplemental Indentures...........................66
SECTION 904. Effect of Supplemental Indentures..............................66
SECTION 905. Conformity with Trust Indenture Act............................67
SECTION 906. Reference in Securities to Supplemental Indentures.............67
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest............67
SECTION 1002. Maintenance of Office or Agency................................67
SECTION 1003. Money for Securities Payments to be Held in Trust..............69
SECTION 1004. Corporate Existence............................................70
SECTION 1005. Additional Amounts.............................................70
SECTION 1006. Statement as to Compliance.....................................71
SECTION 1007. Waiver of Certain Covenants....................................71
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article.......................................72
SECTION 1102. Election to Redeem; Notice to Trustee..........................72
SECTION 1103. Selection by Trustee of Securities to be Redeemed..............72
SECTION 1104. Notice of Redemption...........................................73
SECTION 1105. Deposit of Redemption Price....................................74
SECTION 1106. Securities Payable on Redemption Date..........................74
SECTION 1107. Securities Redeemed in Part....................................75
iii
ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article.......................................76
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities..........76
SECTION 1203. Redemption of Securities for Sinking Fund......................76
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article.......................................77
SECTION 1302. Repayment of Securities........................................77
SECTION 1303. Exercise of Option.............................................77
SECTION 1304. When Securities Presented for Repayment Become Due
and Payable..................................................78
SECTION 1305. Securities Repaid in Part......................................79
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance............................79
SECTION 1402. Defeasance and Discharge.......................................79
SECTION 1403. Covenant Defeasance............................................80
SECTION 1404. Conditions to Defeasance or Covenant Defeasance................80
SECTION 1405. Deposited Money and Government Obligations to Be Held
in Trust; Other Miscellaneous Provisions.....................82
SECTION 1406. Reinstatement..................................................83
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called......................83
SECTION 1502. Call, Notice and Place of Meetings.............................83
SECTION 1503. Persons Entitled to Vote at Meetings...........................84
SECTION 1504. Quorum; Action.................................................84
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings..................................................85
SECTION 1506. Counting Votes and Recording Action of Meetings................86
EXHIBIT A - FORMS OF CERTIFICATES
vi
INDENTURE, dated as of , 200 between CLEARONE COMMUNICATIONS,
INC., a Utah corporation (hereinafter called the "Company"), having its
principal office at 1825 Research Way, Salt Lake City, Utah 84119, and THE BANK
OF NEW YORK, a New York banking corporation, as Trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company deems it necessary to issue from time to
time for its lawful purposes senior debt securities (hereinafter called the
"Securities") evidencing its unsecured and unsubordinated indebtedness, which
may or may not be convertible into or exchangeable for any securities of any
Person (including the Company), and has duly authorized the execution and
delivery of this Indenture to provide for the issuance from time to time of the
Securities, to be issued in one or more series, unlimited as to principal
amount, to bear such rates of interest, to mature at such times and to have such
other provisions as provided in this Indenture;
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions;
and
WHEREAS, all things necessary to make this Indenture a valid and
legally binding agreement of the Company, in accordance with its terms, have
been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities and coupons, or
of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 101. Definitions
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(a) For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires or unless such
definition is changed or amended in a supplement or amendment to this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well
as the singular;
(2) all other terms used herein which are defined in the
TIA, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have
the meanings assigned to them in the rules of the Commission
adopted under the TIA;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally
accepted accounting principles, and, except as otherwise herein
expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted in the United States at the date of such computation;
and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and
not to any particular Article, Section or other subdivision.
(b) Certain terms, used principally in Article Three, Article
Five and Article Six are defined in those Articles.
(c) Other terms are defined as follows:
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"Additional Amounts" means any additional amounts which are
required by a Security or by or pursuant to a Board Resolution, under
circumstances specified therein, to be paid by the Company in respect of certain
taxes imposed on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person appointed by the Trustee
to act on behalf of the Trustee pursuant to Section 611 to authenticate
Securities.
"Authorized Newspaper" means a newspaper, in the English language
or in an official language of the country of publication, customarily published
on each Business Day, whether or not published on Saturdays, Sundays or
holidays, and of general circulation in each place in connection with which the
term is used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to
Section 201 which is payable to bearer or that is otherwise not a Registered
Security.
"Board of Directors" means the board of directors of the Company
as the case may be, or the executive committee or any committee of that board
duly authorized to act hereunder.
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"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary or any Vice President of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or
any other particular location referred to in this Indenture or in the
Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in that Place of Payment or
other location are authorized or obligated by law or executive order to close.
"Clearstream" means Clearstream Banking societe anonyme or its
successor.
"Commission" means the Securities and Exchange Commission, as
from time to time constituted, created under the Exchange Act, or, if at any
time after execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the TIA, then the body performing
such duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter,
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a
written request or order signed in the name of the Company by the Chairman, the
President, the Chief Executive Officer, the Chief Financial Officer or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Conversion Date" has the meaning specified in Section 312(d).
"Conversion Event" means the cessation of use of (1) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institutions of or within the international
banking community for the settlement of transactions, (2) the euro for the
settlement of transactions by public institutions of or within the European
Communities or (3) any currency unit (or composite currency) other than the euro
for the purposes for which such currency unit was established.
"Corporate Trust Office" means the office of the Trustee at
which, at any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 101 Barclay Street,
New York, New York 10286.
"Corporation" includes corporations, associations, limited
liability companies, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer
Security.
3
"Currency" means any currency or currencies, composite currency
or currency unit or currency units, including, without limitation, the euro,
issued by the government of one or more countries or by any reorganized
confederation or association of such governments.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307(a).
"Depository Participant" means, with respect to the Depositary
Trust Company (the "Depository") or its nominee, an institution that has an
account therewith.
"Dollar" or "$" means a dollar or other equivalent unit in such
coin or currency of the United States of America as at the time shall be legal
tender for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning
specified in Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning
specified in Section 312(f).
"Election Date" has the meaning specified in Section 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York,
Brussels Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European
Coal and Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or
within any series unless otherwise specified with respect to any Securities
pursuant to Section 301, a New York Clearing House bank designated pursuant to
Section 301 or Section 313.
"Exchange Rate Officer's Certificate" means a certificate setting
forth (1) the applicable Market Exchange Rate or the applicable bid quotation
and (2) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant Currency), payable with respect to a Security of any
series on the basis of such Market Exchange Rate signed by the Chief Financial
Officer, the Treasurer, the Controller, any Vice President or any Assistant
Treasurer or Assistant Controller of the Company.
4
"Foreign Currency" means any Currency, including, without
limitation, the euro, issued by the government of one or more countries other
than the United States or by any recognized confederation or association of such
governments.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are:
(1) direct obligations of the government which issued the
Currency in which the Securities of a particular series are
payable, or
(2) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of such government which
issued the Currency in which the Securities of such series are
payable, the payment of which is unconditionally guaranteed by
such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person
in whose name a Security is registered in the Security Register and, in the case
of a Bearer Security, the bearer thereof and, when used with respect to any
coupon, shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it
may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, that, if at any time more than one Person
is acting as Trustee under this instrument, "Indenture" shall mean, with respect
to any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are determined
by reference to prices, changes in prices, or differences between prices, of
securities, Currencies, intangibles, goods, articles or commodities or by such
5
other objective price, economic or other measures as are specified in Section
301 hereof.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1005 or
otherwise, includes such Additional Amounts.
"Interest Payment Date", when used with respect to any Security,
means the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, (1) for any conversion
involving a currency unit on the one hand and Dollars or any Foreign Currency on
the other, the exchange rate between the relevant currency unit and Dollars or
such Foreign Currency calculated by the method specified pursuant to Section 301
for the Securities of the relevant series, (2) for any conversion of Dollars
into any Foreign Currency, the noon (New York City time) buying rate for such
Foreign Currency for cable transfers quoted in New York City as certified for
customs purposes by the Federal Reserve Bank of New York and (3) for any
conversion of one Foreign Currency into Dollars or another Foreign Currency, the
spot rate at noon local time in the relevant market at which, in accordance with
normal banking procedures, the Dollars or Foreign Currency into which conversion
is being made could be purchased with the Foreign Currency from which conversion
is being made from major banks located in either New York City, London or any
other principal market for Dollars or such purchased Foreign Currency, in each
case determined by the Exchange Rate Agent. Unless otherwise specified with
respect to any Securities pursuant to Section 301, in the event of the
unavailability of any of the exchange rates provided for in the foregoing
clauses (1), (2) and (3), the Exchange Rate Agent shall use, in its sole
discretion and without liability on its part, such quotation of the Federal
Reserve Bank of New York as of the most recent available date, or quotations
from one or more major banks in New York City, London or another principal
market for the Currency in question, or such other quotations as the Exchange
Rate Agent shall deem appropriate. Unless otherwise specified by the Exchange
Rate Agent, if there is more than one market for dealing in any Currency by
reason of foreign exchange regulations or otherwise, the market to be used in
respect of such Currency shall be that upon which a non-resident issuer of
securities designated in such Currency would purchase such Currency in order to
make payments in respect of such securities.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security or an installment of principal
becomes due and payable as therein or herein provided, whether at the Stated
Maturity or by declaration of acceleration, notice of redemption, notice of
option to elect repayment, notice of exchange or conversion or otherwise.
"Officers' Certificate" means a certificate signed by the
Chairman, the President, the Chief Executive Officer, the Chief Financial
Officer and by the Treasurer, the Controller, an Assistant Treasurer, the
Assistant Controller, the Secretary or an Assistant Secretary of the Company and
delivered to the Trustee.
6
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company or who may be an employee of or other counsel for the
Company.
"Original Issue Discount Security" means any Security which
provides for an amount less than the principal amount thereof to be due and
payable upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502.
"Outstanding", when used with respect to Securities or any series
of any Securities, means, as of the date of determination, all Securities or all
Securities of such series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or delivered
to the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as Paying
Agent) for the Holders of such Securities and any coupons appertaining
thereto, provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities, except to the extent provided in Sections 1402
and 1403, with respect to which the Company has effected defeasance
and/or covenant defeasance as provided in Article Fourteen; and
(4) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, that in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security or Indexed Security, the Dollar equivalent as
7
of such date of original issuance of the amount determined as provided in clause
(i) or clause (iii) of this definition, respectively) of such Security, (iii)
the principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any) or interest, if any, on any Securities or coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
"Place of Payment" means, when used with respect to the
Securities of or within any series, the place or places where the principal of
(and premium, if any) and interest, if any, on such Securities are payable as
specified and as contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that evidenced
by such particular Security; and, for the purposes of this definition, any
Security authenticated and delivered under Section 306 in exchange for or in
lieu of a mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security that is registered in
the Security Register.
"Regular Record Date" for the interest payable on any Interest
Payment Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
8
"Repayment Date" means, when used with respect to any Security to
be repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security
to be repaid at the option of the Holder, the price at which it is to be repaid
by or pursuant to this Indenture.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Security" or "Securities" has the meaning stated in the first
recital of this Indenture and, more particularly, means any Security or
Securities authenticated and delivered under this Indenture; provided, that, if
at any time there is more than one Person acting as Trustee under this
Indenture, "Securities" with respect to the Indenture as to which such Person is
Trustee shall have the meaning stated in the first recital of this Indenture and
shall more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Special Record Date" for the payment of any Defaulted Interest
on the Registered Securities of or within any series means a date fixed by the
Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of
1939 as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, that if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean only the Trustee
with respect to Securities of that series.
9
"United States" means, unless otherwise specified with respect to
any Securities pursuant to Section 301, the United States of America (including
the states and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with
respect to any Securities pursuant to Section 301, an individual who is a
citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an
estate the income of which is subject to United States federal income taxation
regardless of its source or a trust whose administration is subject to the
primary supervision of a United States court and which has one or more United
States persons who have the authority to control all of its decisions.
"Valuation Date" has the meaning specified in Section 312(c).
"Vice President" when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of a corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the
time of issuance of a Security (or, if applicable, at the most recent
redetermination of interest on such Security) and as set forth in such Security
in accordance with generally accepted United States bond yield computation
principles.
SECTION 102. Compliance Certificates and Opinions
------------------------------------
(a) Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any provision
of this Indenture relating to such particular application or request, no
additional certificate or opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture (other than pursuant to
Section 1006) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and
the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such certificate or opinion are based;
10
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such condition or covenant has been complied with;
and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 103. Form of Documents Delivered to Trustee
--------------------------------------
(a) In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion of,
only one such Person, or that they be so certified or covered by only one
document, but one such Person may certify or give an opinion as to some matters
and one or more other such Persons as to other matters, and any such Person may
certify or give an opinion with respect to such matters in one or several
documents.
(b) Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon an Opinion of Counsel, or
a certificate or representations by counsel, unless such officer knows, or in
the exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 104. Acts of Holders
---------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed (which may be electronically signed) by such
Holders in person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
11
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive
in favor of the Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems reasonably sufficient.
(c) The principal amount and serial numbers of Registered
Securities held by any Person, and the date of holding the same, shall be proved
by the Security Register.
(d) The principal amount and serial numbers of Bearer Securities
held by any Person, and the date of holding the same, may be proved by the
production of such Bearer Securities or by a certificate executed, as
depositary, by any trust company, bank, banker or other depositary, wherever
situated, if such certificate shall be deemed by the Trustee to be satisfactory,
showing that at the date therein mentioned such Person had on deposit with such
depositary, or exhibited to it, the Bearer Securities therein described; or such
facts may be proved by the certificate or affidavit of the Person holding such
Bearer Securities, if such certificate or affidavit is deemed by the Trustee to
be satisfactory. The Trustee and the Company may assume that such ownership of
any Bearer Security continues until (1) another certificate or affidavit bearing
a later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner that the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
12
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than 180 days after the record
date.
(f) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent, or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
SECTION 105. Notices, Etc., to Trustee and Company
-------------------------------------
(a) Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted by
this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished
or filed in writing (which may be via facsimile) to or with the
Trustee at its Corporate Trust Office, Attention: Corporate Trust
Administration, or at any other address previously furnished in
writing by the Trustee to the Holders or the Company, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of the
Company's principal office specified in the first paragraph of
this Indenture or at any other address previously furnished in
writing to the Trustee by the Company.
SECTION 106. Notice to Holders; Waiver
-------------------------
(a) Where this Indenture provides for notice of any event to
Holders of Registered Securities by the Company or the Trustee, such notice
shall be sufficiently given (unless otherwise herein expressly provided) if in
writing and mailed, first-class postage prepaid, or by email, to each such
Holder affected by such event, at his physical address or email address as such
address appears in the Security Register, not later than the latest date, and
not earlier than the earliest date, prescribed for the giving of such notice. In
any case where notice to Holders of Registered Securities is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders of Registered Securities or the sufficiency of any
notice to Holders of Bearer Securities given as provided herein. Any notice
13
mailed to a Holder in the manner herein prescribed shall be conclusively deemed
to have been received by such Holder, whether or not such Holder actually
receives such notice.
(b) In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause, it shall be impracticable
to mail notice of any event to Holders of Registered Securities when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
(c) Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if published
at least twice in an Authorized Newspaper in The City of New York and in such
other city or cities as may be specified in such Securities on a Business Day,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of the first such
publication.
(d) If by reason of the suspension of publication of any
Authorized Newspaper or Authorized Newspapers or by reason of any other cause it
shall be impracticable to publish any notice to Holders of Bearer Securities as
provided above, then such notification to Holders of Bearer Securities as shall
be given with the approval of the Trustee shall constitute sufficient notice to
such Holders for every purpose hereunder. Neither the failure to give notice by
publication to any Holder of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
(e) Any request, demand, authorization, direction, notice,
consent or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
(f) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 107. Effect of Headings and Table of Contents
----------------------------------------
The Article and Section headings herein and the Table of Contents
are for convenience only and shall not affect the construction hereof.
SECTION 108. Successors and Assigns
----------------------
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
14
SECTION 109. Separability Clause
-------------------
In case any provision in this Indenture or in any Security, or
coupon shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 110. Benefits of Indenture
---------------------
Nothing in this Indenture or in the Securities, or coupons,
express or implied, shall give to any Person, other than the parties hereto, any
Security Registrar, any Paying Agent, any Authenticating Agent and their
successors hereunder and the Holders any benefit or any legal or equitable
right, remedy or claim under this Indenture.
SECTION 111. Governing Law
-------------
This Indenture, the Securities, and coupons shall be governed by
and construed in accordance with the law of the State of New York. This
Indenture is subject to the provisions of the Trust Indenture Act that are
required to be part of this Indenture and shall, to the extent applicable, be
governed by such provisions.
SECTION 112. Legal Holidays
--------------
In any case where any Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security or coupon
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section), payment of principal
(or premium, if any) or interest, if any, need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or
at the Stated Maturity or Maturity; provided that no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
SECTION 113. Conflict of Any Provision of Indenture with Trust
-------------------------------------------------
Indenture Act
-------------
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with any provision (an "incorporated provision") required
by or deemed to be included in this Indenture by operation of the TIA, such
imposed duties or incorporated provisions shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
SECTION 114. No Recourse against Others
--------------------------
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or this Indenture or for any claim based on, in respect of or by
15
reason of such obligations or their creation. Each Holder by accepting any of
the Securities waives and releases all such liability.
SECTION 115. Waiver of Trial by Jury
-----------------------
The Company, the Trustee, and Holders hereby irrevocably and
unconditionally waive the right to trial by jury in connection with any claim
arising out of or relating to the Securities and under this Indenture.
ARTICLE TWO
SECURITIES FORMS
SECTION 201. Forms of Securities
-------------------
(a) The Registered Securities, if any, of each series, the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established in one or more indentures supplemental hereto
or approved from time to time by or pursuant to a Board Resolution in accordance
with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company, as the case may be, may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Securities may be listed, or to conform to usage.
(b) Unless otherwise specified as contemplated by Section 301,
Bearer Securities shall have interest coupons attached.
(c) The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
16
SECTION 202. Form of Trustee's Certificate of Authentication
-----------------------------------------------
Subject to Section 611, the Trustee's certificate of
authentication shall be in substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
THE BANK OF NEW YORK
as Trustee
By
---------------------------
Authorized Signatory
Dated:
-----------------------
SECTION 203. Securities Issuable in Global Form
----------------------------------
(a) If Securities of or within a series are issuable in global
form, as specified as contemplated by Section 301, then, notwithstanding clause
(8) of Subsection 301(b) and the provisions of Section 302, any such Security
shall represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject
to the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement, delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
(b) The provisions of Section 303(h) shall apply to any Security
represented by a Security in global form if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Security in
global form together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last sentence of Section
303.
17
(c) Notwithstanding the provisions of Section 307, unless
otherwise specified as contemplated by Section 301, payment of principal of (and
premium, if any) and interest, if any, on any Security in permanent global form
shall be made to the Person or Persons specified therein.
(d) Notwithstanding the provisions of Section 309 and except as
provided in Subsection (c) of this Section, the Company, the Trustee and any
agent of the Company, and the Trustee shall treat as the Holder of such
principal amount of Outstanding Securities represented by a permanent global
Security (1) in the case of a permanent global Security in registered form, the
Holder of such permanent global Security in registered form, or (2) in the case
of a permanent global Security in bearer form, Euroclear or Clearstream.
SECTION 204. Form of Legend for Book-Entry Securities
----------------------------------------
Any Global Security authenticated and delivered hereunder shall
bear a legend (which would be in addition to any other legends required in the
case of a restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN THE
NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
ARTICLE THREE
THE SECURITIES
SECTION 301. Amount Unlimited; Issuable in Series
------------------------------------
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities shall rank equally and pari passu and may be
issued in one or more series. There shall be established in one or more Board
Resolutions or pursuant to authority granted by one or more Board Resolutions
and, subject to Section 303, set forth, or determined in the manner provided, in
18
an Officers' Certificate, or established in one or more indentures supplemental
hereto, prior to the issuance of Securities of any series, any or all of the
following, as applicable (each of which (except for the matters set forth in
clauses (1), (2) and (15) below), if so provided, may be determined from time to
time by the Company with respect to unissued Securities of the series and set
forth in such Securities of the series when issued from time to time):
(1) the title of the Securities of the series, including
CUSIP Numbers (which shall distinguish the Securities of such
series from all other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for,
or in lieu of, other Securities of the series pursuant to Section
304, 305, 306, 906, 1107 or 1305) and whether any series may be
reopened for additional Securities of that series; in the event
that such series of Securities may be reopened from time to time
for issuances of additional Securities of such series, the terms
thereof shall indicate whether any such additional Securities
shall have the same terms as the prior Securities of such series
or whether the Company may establish additional or different
terms with respect to such additional Securities;
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal (and
premium, if any,) of the Securities of the series shall be
payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or
rates shall be determined, the date or dates from which such
interest shall accrue or the method by which such date or dates
shall be determined, the Interest Payment Dates on which such
interest shall be payable and the Regular Record Date, if any,
for the interest payable on any Registered Security on any
Interest Payment Date, or the method by which such date shall be
determined, and the basis upon which interest shall be calculated
if other than on the basis of a 360-day year of twelve 30-day
months;
(5) the place or places, if any, other than or in addition
to the Borough of Manhattan, The City of New York, where the
principal of (and premium, if any) and interest, if any, on
Securities of the series shall be payable, where any Registered
Securities of the series may be surrendered for registration of
transfer, where Securities of the series may be surrendered for
exchange, where Securities of the series that are convertible or
exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices or demands to or upon the Company
in respect of the Securities of the series and this Indenture may
be served;
(6) the period or periods within which, or the date or dates
on which, the price or prices at which, the Currency or
Currencies in which, and other terms and conditions upon which
19
Securities of the series may be redeemed, in whole or in part, at
the option of the Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking fund
or analogous provision or at the option of a Holder thereof, and
the period or periods within which or the date or dates on which,
the price or prices at which, the Currency or Currencies in
which, and other terms and conditions upon which Securities of
the series shall be redeemed, repaid or purchased, in whole or in
part, pursuant to such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if
other than denominations of $5,000, the denomination or
denominations in which any Bearer Securities of the series shall
be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall
be determined;
(11) if other than Dollars, the Currency or Currencies in
which payment of the principal of (or premium, if any) or
interest, if any, on the Securities of the series shall be made
or in which the Securities of the series shall be denominated and
the particular provisions applicable thereto in accordance with,
in addition to or in lieu of any of the provisions of Section
312;
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the
series may be determined with reference to an index, formula or
other method (which index, formula or method may be based,
without limitation, on one or more Currencies, commodities,
equity indices or other indices), and the manner in which such
amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be
payable, at the election of the Company or a Holder thereof, in a
Currency other than that in which such Securities are denominated
or stated to be payable, the period or periods within which
(including the Election Date), and the terms and conditions upon
which, such election may be made, and the time and manner of
determining the exchange rate between the Currency in which such
Securities are denominated or stated to be payable and the
Currency in which such Securities are to be so payable, in each
20
case in accordance with, in addition to or in lieu of any of the
provisions of Section 312;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such
events as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default or covenants or other provisions (including
any deletions from, modifications of or additions to any of the
provisions of Section 1007) of the Company with respect to
Securities of the series, whether or not such Events of Default
or covenants or other provisions are consistent with the Events
of Default or covenants or other provisions set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, any
restrictions applicable to the offer, sale or delivery of Bearer
Securities, whether any Securities of the series are to be
issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global
form with or without coupons and, if so, whether beneficial
owners of interests in any such permanent global Security may
exchange such interests for Securities of such series and of like
tenor of any authorized form and denomination and the
circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, whether Registered
Securities of the series may be exchanged for Bearer Securities
of the series (if permitted by applicable laws and regulations),
whether Bearer Securities of the series may be exchanged for
Registered Securities of such series, and the circumstances under
which and the place or places where any such exchanges may be
made and if Securities of the series are to be issuable in global
form, the identity of any initial depository therefor;
(17) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be
issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person
in whose name such Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular
Record Date for such interest, the manner in which, or the Person
to whom, any interest on any Bearer Security of the series shall
be payable, if otherwise than upon presentation and surrender of
the coupons appertaining thereto as they severally mature, and
the extent to which, or the manner in which, any interest payable
on a temporary global Security on an Interest Payment Date will
be paid if other than in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and 1403 to
the Securities of the series and any provisions in modification
of, in addition to or in lieu of any of the provisions of Article
Fourteen;
21
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of
a temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other
conditions, then the form and/or terms of such certificates,
documents or conditions;
(21) whether, under what circumstances and the Currency in
which, the Company will pay Additional Amounts as contemplated by
Section 1005 on the Securities of the series to any Holder who is
not a United States person (including any modification to the
definition of such term) in respect of any tax, assessment or
governmental charge and, if so, whether the Company will have the
option to redeem such Securities rather than pay such Additional
Amounts (and the terms of any such option);
(22) the designation of the initial Exchange Rate Agent, if
any;
(23) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including
the Company), the terms and conditions upon which such Securities
of the series will be so convertible or exchangeable (including,
without limitation, the initial conversion price or rate, the
conversion period, the conversion agent, if any, adjustments of
the applicable conversion price or rate and any requirements with
respect to the reservation of shares or Securities for purposes
of conversion);
(24) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered; and
(25) any other terms of the series (which terms shall not be
inconsistent with the requirements of the TIA).
(c) All Securities of any one series and the coupons appertaining
to any Bearer Securities of such series shall be substantially identical except,
in the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. Not all Securities of any one series need to be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
Securities of such series or to establish additional terms of such series of
Securities (which additional terms shall only be applicable to unissued or
additional Securities of such series).
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary [or any Vice President] of the Company and delivered to
the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the Securities of such series.
22
SECTION 302. Denominations
-------------
The Securities of each series shall be issuable in such
denominations as shall be specified as contemplated by Section 301. In the
absence of any such provision with respect to Securities of any series, the
principal, premium and interest and Additional Amounts with respect to the
Securities shall be payable in Dollars. With respect to Securities of any series
denominated in Dollars, in the absence of any such provisions with respect to
the Securities of any series, the Registered Securities of such series, other
than Registered Securities issued in global form (which may be of any
denomination) shall be issuable in denominations of $1,000 and any integral
multiple thereof, and the Bearer Securities of such series, other than Bearer
Securities issued in global form (which may be of any denomination), shall be
issuable in a denomination of $5,000.
SECTION 303. Execution, Authentication, Delivery and Dating
----------------------------------------------
(a) The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or Chief
Executive Officer, under its corporate seal reproduced thereon or a facsimile or
copy thereof and attested by its Secretary or one of its Assistant Secretaries
or Vice Presidents. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
(b) Securities or coupons bearing the manual or facsimile
signatures of individuals who were at any time the proper officers of the
Company shall bind the Company, notwithstanding that such individuals or any of
them have ceased to hold such offices prior to the authentication and delivery
of such Securities or did not hold such offices at the date of such Securities
or coupons.
(c) At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities of any series,
together with any coupon appertaining thereto, executed by the Company, to the
Trustee for authentication, together with a Company Order for the authentication
and delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Bearer Security. Except as permitted by
23
Section 306, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled. If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Sections 315(a) through 315(d)) shall be fully protected in
relying upon,
(1) an Opinion of Counsel stating,
(i) that the form or forms of such Securities and any
coupons have been established in conformity with the provisions
of this Indenture;
(ii) that the terms of such Securities and any coupons have
been established in conformity with the provisions of this
Indenture; and
(iii) that such Securities, together with any coupons
appertaining thereto, when completed by appropriate insertions
and executed and delivered by the Company to the Trustee for
authentication in accordance with this Indenture, authenticated
and delivered by the Trustee in accordance with this Indenture
and issued by the Company in the manner and subject to any
conditions specified in such Opinion of Counsel, will constitute
legal, valid and binding obligations of the Company, enforceable
in accordance with their terms, subject to applicable bankruptcy,
insolvency, reorganization and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights, to general equitable principles and to such
other qualifications as such counsel shall conclude do not
materially affect the rights of Holders of such Securities and
any coupons;
(2) an Officers' Certificate stating, to the best of the
knowledge of the signers of such certificate, that no Event of
Default with respect to any of the Securities shall have occurred
and be continuing; and
(3) an executed supplemental indenture (if any).
(d) Notwithstanding the provisions of Section 301 and of this
Section 303, if all the Securities of any series are not to be issued at one
time, it shall not be necessary to deliver an Officers' Certificate otherwise
required pursuant to Section 301 or the Company Order, Opinion of Counsel or
Officers' Certificate otherwise required pursuant to Subsection (c) of this
Section at the time of issuance of each Security of such series, but such order,
opinion and certificates, with appropriate modifications to cover such future
issuances, shall be delivered at or before the time of issuance of the first
Security of such series.
(e) The Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this Indenture will
affect the Trustee's own rights, duties or immunities under the Securities and
24
this Indenture or otherwise in a manner which is not reasonably acceptable to
the Trustee. Notwithstanding the generality of the foregoing, the Trustee will
not be required to authenticate Securities denominated in a Foreign Currency if
the Trustee reasonably believes that it would be unable to perform its duties
with respect to such Securities.
(f) Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
(g) No Security or coupon shall be entitled to any benefit under
this Indenture or be valid or obligatory for any purpose unless there appears on
such Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee or an Authenticating Agent by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
(h) Notwithstanding the foregoing, if any Security shall have
been authenticated and delivered hereunder but never issued and sold by the
Company, and the Company shall deliver such Security to the Trustee for
cancellation as provided in Section 310 together with a written statement (which
need not comply with Section 102 and need not be accompanied by an Opinion of
Counsel) stating that such Security has never been issued and sold by the
Company, for all purposes of this Indenture such Security shall be deemed never
to have been authenticated and delivered hereunder and shall never be entitled
to the benefits of this Indenture.
SECTION 304. Temporary Securities
--------------------
(a) Pending the preparation of definitive Securities of any
series, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
(b) Except in the case of temporary Securities in global form
(which shall be exchanged in accordance with Subsection 304(c) or as otherwise
provided in or pursuant to a Board Resolution), if temporary Securities of any
series are issued, the Company will cause definitive Securities of that series
to be prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, that, no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further that a
25
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
(c) (1) Unless otherwise provided in or pursuant to a Board
Resolution, this Section 304(c) shall govern the exchange of temporary
Securities issued in global form.
(2) If temporary Securities of any series are issued in
global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of
a depositary or common depositary (the "Common Depositary"), for
the benefit of Euroclear and Clearstream, for credit to the
respective accounts of the beneficial owners of such Securities
(or to such other accounts as they may direct).
(3) Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms
of, any such temporary global Security (the "Exchange Date"), the
Company shall deliver to the Trustee definitive Securities, in
aggregate principal amount equal to the principal amount of such
temporary global Security, executed by the Company. On or after
the Exchange Date, such temporary global Security shall be
surrendered by the Common Depositary to the Trustee, as the
Company's agent for such purpose, to be exchanged, in whole or
from time to time in part, for definitive Securities without
charge, and the Trustee shall authenticate and deliver, in
exchange for each portion of such temporary global Security and
upon receipt of the Company Order described in Section 303, an
equal aggregate principal amount of definitive Securities of the
same series of authorized denominations and of like tenor as the
portion of such temporary global Security to be exchanged. The
definitive Securities to be delivered in exchange for any such
temporary global Security shall be in bearer form, registered
form, permanent global bearer form or permanent global registered
form, or any combination thereof, as specified as contemplated by
Section 301, and, if any combination thereof is so specified, as
requested by the beneficial owner thereof; provided, that, unless
otherwise specified in such temporary global Security, upon such
presentation by the Common Depositary, such temporary global
Security is accompanied by a certificate dated the Exchange Date
or a subsequent date and signed by Euroclear as to the portion of
such temporary global Security held for its account then to be
exchanged and a certificate dated the Exchange Date or a
subsequent date and signed by Clearstream as to the portion of
such temporary global Security held for its account then to be
exchanged, each in the form set forth in Exhibit A-2 to this
Indenture or in such other form as may be established pursuant to
Section 301; and provided further that definitive Bearer
Securities shall be delivered in exchange for a portion of a
temporary global Security only in compliance with the
requirements of Section 303.
(4) Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a
series in a temporary global Security shall be exchanged for
26
definitive Securities of the same series and of like tenor
following the Exchange Date when the account holder instructs
Euroclear or Clearstream, as the case may be, to request such
exchange on his behalf and delivers to Euroclear or Clearstream,
as the case may be, a certificate in the form set forth in
Exhibit A-1 to this Indenture (or in such other form as may be
established pursuant to Section 301), dated no earlier than 15
days prior to the Exchange Date, copies of which certificate
shall be available from the offices of Euroclear and Clearstream,
the Trustee, any Authenticating Agent appointed for such series
of Securities and each Paying Agent. Unless otherwise specified
in such temporary global Security, any such exchange shall be
made free of charge to the beneficial owners of such temporary
global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage,
transportation and the like in the event that such Person does
not take delivery of such definitive Securities in person at the
offices of Euroclear or Clearstream. Definitive Securities in
bearer form to be delivered in exchange for any portion of a
temporary global Security shall be delivered only outside the
United States.
(5) Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive
Securities of the same series and of like tenor authenticated and
delivered hereunder, except that, unless otherwise specified as
contemplated by Section 301, interest payable on a temporary
global Security on an Interest Payment Date for Securities of
such series occurring prior to the applicable Exchange Date shall
be payable to Euroclear and Clearstream on such Interest Payment
Date upon delivery by Euroclear and Clearstream to the Trustee of
a certificate or certificates in the form set forth in Exhibit
A-2 to this Indenture (or in such other forms as may be
established pursuant to Section 301), for credit without further
interest thereon on or after such Interest Payment Date to the
respective accounts of the Persons who are the beneficial owners
of such temporary global Security on such Interest Payment Date
and who have each delivered to Euroclear or Clearstream, as the
case may be, a certificate dated no earlier than 15 days prior to
the Interest Payment Date occurring prior to such Exchange Date
in the form set forth in Exhibit A-1 to this Indenture (or in
such other forms as may be established pursuant to Section 301).
Notwithstanding anything to the contrary herein contained, the
certifications made pursuant to this clause (5) of Subsection
304(c) shall satisfy the certification requirements of clauses
(3) and (4) of this Subsection 304(c) and of Subsection 303(c) of
this Indenture and the interests of the Persons who are the
beneficial owners of the temporary global Security with respect
to which such certification was made will be exchanged for
definitive Securities of the same series and of like tenor on the
Exchange Date or the date of certification if such date occurs
after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this clause
(5) of Subsection 304(c), no payments of principal (or premium,
if any) or interest, if any, owing with respect to a beneficial
interest in a temporary global Security will be made unless and
until such interest in such temporary global Security shall have
been exchanged for an interest in a definitive Security. Any
interest so received by Euroclear and Clearstream and not paid as
27
herein provided shall be returned to the Trustee prior to the
expiration of two years after such Interest Payment Date in order
to be repaid to the Company.
SECTION 305. Registration, Registration of Transfer and Exchange
---------------------------------------------------
(a) The Company shall cause to be kept at the Corporate Trust
Office of the Trustee or in any office or agency of the Company in a Place of
Payment a register for each series of Securities (the registers maintained in
such office or in any such office or agency of the Company in a Place of Payment
being herein sometimes referred to collectively as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided.
In the event that the Trustee shall cease to be Security Registrar, it shall
have the right to examine the Security Register at all reasonable times.
(b) Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency in a Place of Payment for the
register and transfer of Securities that series, the Company shall execute, and
the Trustee shall authenticate and deliver, subject to the terms and conditions
of this Article Three, in the name of the designated transferee or transferees,
one or more new Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, and tenor.
(c) At the option of the Holder, Registered Securities of any
series may be exchanged for other Registered Securities of the same series, of
any authorized denomination and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered Securities to
be exchanged at such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
(d) If (but only if) expressly permitted in or pursuant the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
28
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, that, except as otherwise provided in
Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (1) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (2) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(e) Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
(f) Notwithstanding the foregoing, except as otherwise specified
as contemplated by Section 301, any permanent global Security shall be
exchangeable only as provided in this Subsection 305(f). If any beneficial owner
of an interest in a permanent global Security is entitled to exchange such
interest for Securities of such series and of like tenor and principal amount of
another authorized form and denomination, as specified as contemplated by
Section 301 and provided that any applicable notice provided in the permanent
global Security shall have been given, then without unnecessary delay but in any
event not later than the earliest date on which such interest may be so
exchanged, the Company shall deliver to the Trustee definitive Securities in
aggregate principal amount equal to the principal amount of such beneficial
owner's interest in such permanent global Security, executed by the Company. On
or after the earliest date on which such interests may be so exchanged, such
permanent global Security shall be surrendered by the Common Depositary or such
other depositary as shall be specified in the Company Order with respect thereto
to the Trustee, as the Company's agent for such purpose, to be exchanged, in
whole or from time to time in part, for definitive Securities without charge and
the Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be in
the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided, that,
no such exchanges may occur during a period beginning at the opening of business
15 days before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested may be
among those selected for redemption; and provided further that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States. If
29
a Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such
exchange occurs on (1) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (2)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is payable
in accordance with the provisions of this Indenture.
(g) All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(h) Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
(i) No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
(j) The Company shall not be required (1) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before, and ending at the close of business on (i) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (ii) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(2) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the unredeemed portion thereof, or (3) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (4) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
(k) Each Holder of a Security agrees to indemnify the Company and
the Trustee against any liability that may result from the transfer, exchange or
30
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States Federal or state securities law.
(l) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depository
Participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
SECTION 306. Mutilated, Destroyed, Lost and Stolen Securities
------------------------------------------------
(a) If any mutilated Security or a Security with a mutilated
coupon appertaining to it is surrendered to the Trustee or the Company, together
with, in proper cases, such security or indemnity as may be required by the
Company or the Trustee to save each of them or any agent of either of them
harmless, the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a new Security of the same series and of like tenor
and principal amount, and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to the
surrendered Security.
(b) If there shall be delivered to the Company and to the Trustee
(1) evidence to their satisfaction of the destruction, loss or theft of any
Security or coupon, and (2) such security or indemnity as may be required by
them to save each of them and any agent of either of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security or coupon has
been acquired by a bona fide purchaser, the Company shall execute and upon
Company Order the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security or in exchange for the Security to which a
destroyed, lost or stolen coupon appertains (with all appurtenant coupons not
destroyed, lost or stolen), a new Security of the same series and of like tenor
and principal amount and bearing a number not contemporaneously outstanding,
with coupons corresponding to the coupons, if any, appertaining to such
destroyed, lost or stolen Security or to the Security to which such destroyed,
lost or stolen coupon appertains.
(c) Notwithstanding the provisions of the Subsections 306(a) and
306(b), in case any such mutilated, destroyed, lost or stolen Security or coupon
has become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, with coupons corresponding to the
coupons, if any, appertaining to such mutilated, destroyed, lost or stolen
Security or to the Security to which such mutilated, destroyed, lost or stolen
coupon appertains, pay such Security or coupon; provided, that, payment of
principal of (and premium, if any) and interest, if any, on Bearer Securities
shall, except as otherwise provided in Section 1002, be payable only at an
office or agency located outside the United States and, unless otherwise
specified as contemplated by Section 301, any interest on Bearer Securities
shall be payable only upon presentation and surrender of the coupons
appertaining thereto.
(d) Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
31
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(e) Every new Security of any series, together with its coupons,
if any, issued pursuant to this Section in lieu of any mutilated, destroyed,
lost or stolen Security, or in exchange for a Security to which a mutilated,
destroyed, lost or stolen coupon appertains, shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security and its coupons, if any, or the mutilated,
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
(f) The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
SECTION 307. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset
--------------
(a) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, interest, if any,
on any Registered Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, that, each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (1) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 309, to the address of such Person as it appears on the Security
Register or (2) transfer to an account located in the United States maintained
by the payee.
(b) Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
(c) Unless otherwise provided as contemplated by Section 301,
every permanent global Security will provide that interest, if any, payable on
any Interest Payment Date will be paid to each of Euroclear and Clearstream with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
(d) In case a Bearer Security of any series is surrendered in
exchange for a Registered Security of such series after the close of business
(at an office or agency in a Place of Payment for such series) on any Regular
Record Date and before the opening of business (at such office or agency) on the
next succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
32
Holder of such coupon when due in accordance with the provisions of this
Indenture.
(e) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) of this Subsection:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities
of such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest, which shall be fixed in
the following manner. The Company shall notify the Trustee in
writing of the amount of Defaulted Interest proposed to be paid
on each Registered Security of such series and the date of the
proposed payment (which shall not be less than 20 days after such
notice is received by the Trustee), and at the same time the
Company shall deposit with the Trustee an amount of money in the
Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided
in Subsections 312(b), 312(d) and 312(e)) equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest
or shall make arrangements satisfactory to the Trustee for such
deposit on or prior to the date of the proposed payment, such
money when deposited to be held in trust for the benefit of the
Persons entitled to such Defaulted Interest as in this clause
provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not
more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt
by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date
and, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be given in the manner provided
in Section 106, not less than 10 days prior to such Special
Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so
given, such Defaulted Interest shall be paid to the Persons in
whose names the Registered Securities of such series (or their
respective Predecessor Securities) are registered at the close of
business on such Special Record Date and shall no longer be
payable pursuant to the following clause (2) of this Subsection.
In case a Bearer Security of any series is surrendered at the
office or agency in a Place of Payment for such series in
exchange for a Registered Security of such series after the close
of business at such office or agency on any Special Record Date
and before the opening of business at such office or agency on
the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating
to such proposed date of payment and Defaulted Interest will not
33
be payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security,
but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful
manner not inconsistent with the requirements of any securities
exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment
pursuant to this clause, such manner of payment shall be deemed
practicable by the Trustee.
(f) The provisions of this Subsection 307(f) may be made
applicable to any series of Securities pursuant to Section 301 (with such
modifications, additions or substitutions as may be specified pursuant to such
Section 301). The interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable) on any Security of such series may
be reset by the Company on the date or dates specified on the face of such
Security (each an "Optional Reset Date"). The Company may exercise such option
with respect to such Security by notifying the Trustee of such exercise at least
45 but not more than 60 days prior to an Optional Reset Date for such Security.
Not later than 40 days prior to each Optional Reset Date, the Trustee shall
transmit, in the manner provided for in Section 106, to the Holder of any such
Security a notice (the "Reset Notice") indicating whether the Company has
elected to reset the interest rate (or the spread or spread multiplier used to
calculate such interest rate, if applicable), and if so (1) such new interest
rate (or such new spread or spread multiplier, if applicable) and (2) the
provisions, if any, for redemption during the period from such Optional Reset
Date to the next Optional Reset Date or if there is no such next Optional Reset
Date, to the Stated Maturity of such Security (each such period a "Subsequent
Interest Period"), including the date or dates on which or the period or periods
during which and the price or prices at which such redemption may occur during
the Subsequent Interest Period.
(g) Notwithstanding the foregoing, not later than 20 days prior
to the Optional Reset Date, the Company may, at its option, revoke the interest
rate (or the spread or spread multiplier used to calculate such interest rate,
if applicable) provided for in the Reset Notice and establish a higher interest
rate (or a spread or spread multiplier providing for a higher interest rate, if
applicable) for the Subsequent Interest Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate (or such spread or spread multiplier providing for a higher
interest rate, if applicable) to the Holder of such Security. Such notice shall
be irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
is reset on an Optional Reset Date, and with respect to which the Holders of
such Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to Subsection 307(h), will bear such higher
interest rate (or such spread or spread multiplier providing for a higher
interest rate, if applicable).
(h) The Holder of any such Security may have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
34
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
(i) Subject to the foregoing provisions of this Section and
Section 305, each Security delivered under this Indenture upon registration of
transfer of or in exchange for or in lieu of any other Security shall carry the
rights to interest accrued and unpaid, and to accrue, which were carried by such
other Security.
SECTION 308. Optional Extension of Maturity
------------------------------
(a) The provisions of this Section 308 may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The Stated Maturity of any Security of such series may be extended at the option
of the Company for the period or periods specified on the face of such Security
(each an "Extension Period") up to but not beyond the date (the "Final
Maturity") set forth on the face of such Security. The Company may exercise such
option with respect to any Security by notifying the Trustee of such exercise at
least 45 but not more than 60 days prior to the Stated Maturity of such Security
in effect prior to the exercise of such option (the "Original Stated Maturity").
If the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate (or spread, spread multiplier
or other formula used to calculate such interest rate, if applicable), if any,
applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in Subsection 308(b), such Security will have the same terms as prior to the
transmittal of such Extension Notice.
(b) Notwithstanding the foregoing, not later than 20 days before
the Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate (or spread, spread multiplier or other formula used to
calculate such interest rate, if applicable) provided for in the Extension
Notice and establish a higher interest rate (or spread, spread multiplier or
other formula used to calculate such higher interest rate, if applicable) for
the Extension Period by causing the Trustee to transmit, in the manner provided
for in Section 106, notice of such higher interest rate (or spread, spread
multiplier or other formula used to calculate such interest rate, if applicable)
to the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the Stated Maturity is extended will bear such higher
interest rate.
(c) If the Company extends the Stated Maturity of any Security,
the Holder will have the option to elect repayment of such Security by the
Company on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
35
Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.
SECTION 309. Persons Deemed Owners
---------------------
(a) Prior to due presentment of a Registered Security for
registration of transfer, the Company, the Trustee and any agent of the Company,
or the Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Sections 305 and
307) interest, if any, on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and none of the
Company, the Trustee nor any agent of the Company, or the Trustee shall be
affected by notice to the contrary.
(b) Title to any Bearer Security and any coupons appertaining
thereto shall pass by delivery. The Company, the Trustee and any agent of the
Company, or the Trustee may treat the bearer of any Bearer Security and the
bearer of any coupon as the absolute owner of such Security or coupon for the
purpose of receiving payment thereof or on account thereof and for all other
purposes whatsoever, whether or not such Security or coupon be overdue, and none
of the Company, the Trustee nor any agent of the Company, or the Trustee shall
be affected by notice to the contrary.
(c) None of the Company, the Trustee, any Paying Agent or the
Security Registrar will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
(d) Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company, or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and owners
of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
SECTION 310. Cancellation
------------
(a) All Securities and coupons surrendered for payment,
redemption, repayment at the option of the Holder, registration of transfer or
exchange or for credit against any sinking fund payment shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee, and any such
Securities and coupons and Securities and coupons surrendered directly to the
Trustee for any such purpose shall be promptly cancelled by it. The Company may
at any time deliver to the Trustee for cancellation any Securities previously
authenticated and delivered hereunder which the Company may have acquired in any
manner whatsoever, and may deliver to the Trustee (or to any other Person for
36
delivery to the Trustee) for cancellation any Securities previously
authenticated hereunder which the Company has not issued and sold, and all
Securities so delivered shall be promptly cancelled by the Trustee. If the
Company shall so acquire any of the Securities, however, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities unless and until the same are surrendered to the Trustee for
cancellation. No Securities shall be authenticated in lieu of or in exchange for
any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. Cancelled Securities and coupons held by the
Trustee shall be disposed of by the Trustee in its customary manner, unless by a
Company Order the Company directs that cancelled Securities be returned to the
Company.
SECTION 311. Computation of Interest
-----------------------
Except as otherwise specified as contemplated by Section 301 with
respect to Securities of any series, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 312. Currency and Manner of Payments in Respect of Securities
--------------------------------------------------------
(a) Unless otherwise specified with respect to any Securities
pursuant to Section 301, with respect to Registered Securities of any series not
permitting the election provided for in Subsection (b) of this Section or the
Holders of which have not made the election provided for in Subsection (b) of
this Section, and with respect to Bearer Securities of any series, except as
provided in Subsection (d) of this Section, payment of the principal of (and
premium, if any) and interest, if any, on any Registered or Bearer Security of
such series will be made in the Currency in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this Section
312 may be modified or superseded with respect to any Securities pursuant to
Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to Subsection (d) and (e) of this Section, to receive payments of principal of
(or premium, if any) or interest, if any, on such Registered Securities in any
of the Currencies which may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 301, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fourteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such transferee). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee of such series of Registered Securities not later than
the close of business on the applicable Election Date will be paid the amount
37
due on the applicable payment date in the relevant Currency as provided in
Subsection (a) of this Section. The Trustee shall notify the Exchange Rate Agent
as soon as practicable after the Election Date of the aggregate principal amount
of Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in Subsection (b) of this Section has been provided for
pursuant to Section 301, then, unless otherwise specified pursuant to Section
301, not later than the fourth Business Day after the Election Date for each
payment date for Registered Securities of any series, the Exchange Rate Agent
will deliver to the Company a written notice specifying the Currency in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any) and interest, if any, on the
Registered Securities to be paid on such payment date, specifying the amounts in
such Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such Series shall have elected to be paid in
another Currency as provided in Subsection (b) of this Section. If the election
referred to in Subsection (b) of this Section has been provided for pursuant to
Section 301 and if at least one Holder has made such election, then, unless
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officer's Certificate in
respect of the Dollar or Foreign Currency payments to be made on such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who have elected
payment in a Currency as provided in Subsection (b) of this Section shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign
Currency in which any of the Securities are denominated or payable other than
pursuant to an election provided for pursuant to Subsection (b) of this Section,
then with respect to each date for the payment of principal of (and premium, if
any) and interest, if any on the applicable Securities denominated or payable in
such Foreign Currency occurring after the last date on which such Foreign
Currency was used (the "Conversion Date"), the Dollar shall be the currency of
payment for use on each such payment date. Unless otherwise specified pursuant
to Section 301, the Dollar amount to be paid by the Company to the Trustee and
by such Trustee or any Paying Agent to the Holders of such Securities with
respect to such payment date shall be, in the case of a Foreign Currency other
than a currency unit, the Dollar Equivalent of the Foreign Currency or, in the
case of a currency unit, the Dollar Equivalent of the Currency Unit, in each
case as determined by the Exchange Rate Agent in the manner provided in
Subsection (f) or (g) of this Section.
(e) Unless otherwise specified pursuant to Section 301, if the
Holder of a Registered Security denominated in any Currency shall have elected
to be paid in another Currency as provided in Subsection (b) of this Section,
and a Conversion Event occurs with respect to such elected Currency, such Holder
shall receive payment in the Currency in which payment would have been made in
the absence of such election; and if a Conversion Event occurs with respect to
the Currency in which payment would have been made in the absence of such
election, such Holder shall receive payment in Dollars as provided in Subsection
(d) of this Section.
38
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be
determined by the Exchange Rate Agent and subject to the provisions of
Subsection (h) of this Section shall be the sum of each amount obtained by
converting the Specified Amount of each Component Currency into Dollars at the
Market Exchange Rate for such Component Currency on the Valuation Date with
respect to each payment.
(h) For purposes of this Section 312, the following terms shall
have the following meanings:
A "Component Currency" shall mean any currency which, on the Conversion Date,
was a component currency of the relevant currency unit, including, but not
limited to, the euro.
A "Specified Amount" of a Component Currency shall mean the
number of units of such Component Currency or fractions thereof which were
represented in the relevant currency unit, including, but not limited to, the
euro, on the Conversion Date. If after the Conversion Date the official unit of
any Component Currency is altered by way of combination or subdivision, the
Specified Amount of such Component Currency shall be divided or multiplied in
the same proportion. If after the Conversion Date two or more Component
Currencies are consolidated into a single Currency, the respective Specified
Amounts of such Component Currencies shall be replaced by an amount in such
single Currency equal to the sum of the respective Specified Amounts of such
consolidated Component Currencies expressed in such single Currency, and such
amount shall thereafter be a Specified Amount and such single Currency shall
thereafter be a Component Currency. If after the Conversion Date any Component
Currency shall be divided into two or more currencies, the Specified Amount of
such Component Currency shall be replaced by amounts of such two or more
currencies, having an aggregate Dollar Equivalent value at the Market Exchange
Rate on the date of such replacement equal to the Dollar Equivalent of the
Specified Amount of such former Component Currency at the Market Exchange Rate
immediately before such division, and such amounts shall thereafter be Specified
Amounts and such currencies shall thereafter be Component Currencies. If, after
the Conversion Date of the relevant currency unit, including, but not limited
to, the euro, a Conversion Event (other than any event referred to above in this
definition of "Specified Amount") occurs with respect to any Component Currency
of such currency unit and is continuing on the applicable Valuation Date, the
Specified Amount of such Component Currency shall, for purposes of calculating
the Dollar Equivalent of the Currency Unit, be converted into Dollars at the
Market Exchange Rate in effect on the Conversion Date of such Component
Currency.
"Election Date" shall mean the Regular Record Date for the
applicable series of Registered Securities or at least 16 days prior to
Maturity, as the case may be, or such other prior date for any series of
Registered Securities as specified pursuant to clause 13 of Section 301
by which the written election referred to in Subsection 312(b) may be
made.
39
(i) All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
(j) In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and such Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion Event has
occurred with respect to the euro or any other currency unit in which Securities
are denominated or payable, the Company will immediately give written notice
thereof to the Trustee and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
(k) The Trustee of the appropriate series of Securities shall be
fully justified and protected in conclusively relying and acting upon
information received by it from the Company and the Exchange Rate Agent and
shall not otherwise have any duty or obligation to determine the accuracy or
validity of such information independent of the Company or the Exchange Rate
Agent.
SECTION 313. Appointment and Resignation of Successor Exchange Rate Agent
------------------------------------------------------------
(a) Unless otherwise specified pursuant to Section 301, if and so
long as the Securities of any series (1) are denominated in a Foreign Currency
or (2) may be payable in a Foreign Currency, or so long as it is required under
any other provision of this Indenture, then the Company will maintain with
respect to each such series of Securities, or as so required, at least one
Exchange Rate Agent. The Company will cause the Exchange Rate Agent to make the
necessary foreign exchange determinations at the time and in the manner
specified pursuant to Section 301 for the purpose of determining the applicable
rate of exchange and, if applicable, for the purpose of converting the issued
Foreign Currency into the applicable payment Currency for the payment of
principal (and premium, if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment
of a successor Exchange Rate Agent pursuant to this Section shall become
effective until the acceptance of appointment by the successor Exchange Rate
Agent as evidenced by a written instrument delivered to the Company and the
Trustee of the appropriate series of Securities accepting such appointment
executed by the successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
40
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
SECTION 314. CUSIP Numbers
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if
then generally in use), and, if so, the Trustee shall indicate the "CUSIP"
numbers of the Securities in notices of redemption as a convenience to Holders;
provided that, any such notice may state that no representation is made as to
the correctness of such numbers either as printed on the Securities or as
contained in any notice of redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the "CUSIP"
numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 401. Satisfaction and Discharge of Indenture
---------------------------------------
(a) Unless otherwise specified pursuant to Section 301, this
Indenture shall upon Company Request cease to be of further effect with respect
to any series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series expressly provided for herein or pursuant hereto and any right to receive
Additional Amounts, as provided in Section 1005), and the Trustee, upon receipt
of a Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(i) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (A) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section
305, (B) Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (C) coupons appertaining
to Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (D) Securities and coupons of
such series for whose payment money has theretofore been
deposited with the Trustee or any Paying Agent in trust or
segregated and held in trust by the Company and thereafter
41
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
(ii) all Securities of such series and, in the case of
subclauses (A) or (B) below, any coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense,
of the Company,
and the Company, in the case of subclauses (A), (B) or (C)
above, has irrevocably deposited or caused to be deposited
with the Trustee as trust funds in trust for such purpose an
amount in the Currency in which the Securities of such
series are payable, sufficient to pay and discharge the
entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation,
including the principal (and premium, if any) and interest,
if any, to the date of such deposit (in the case of
Securities which have become due and payable) or to the
Stated Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series
have been complied with.
(b) Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee and any predecessor
Trustee under Section 606, the obligations of the Company to any Authenticating
Agent under Section 611 if money shall have been deposited with the Trustee
pursuant to clause (1) of Subsection 401(a), the obligations of the Trustee
under Section 402 and Subsection 1003(d) and the obligations of the Company and
the Trustee with respect to Securities of such series under Sections 305, 306,
1002 and 1005, with respect to the payment of Additional Amounts, if any, with
respect to any rights of Holders to require the Company to repay such Securities
as contemplated by Section 1301 and with respect to any rights of Holders to
convert or exchange such Securities into other Securities, shall survive such
satisfaction and discharge. These obligations shall continue to be governed and
construed in accordance with Section 111.
42
SECTION 402. Application of Trust Funds
--------------------------
Subject to the provisions of Subsection 1003(d), all money
deposited with the Trustee pursuant to Section 401 shall be held in trust and
applied by it, in accordance with the provisions of the Securities, the coupons
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
or received by the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
SECTION 501. Events of Default
-----------------
(a) "Event of Default", wherever used herein with respect to any
particular series of Securities, means any one of the following events as such
events may be otherwise amended in accordance with Section 301 (whatever the
reason for such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon, or any
Additional Amount payable in respect of, any Security of that
series or of any coupon appertaining thereto, when such interest
or coupon becomes due and payable, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant
or agreement of the Company in this Indenture with respect to any
Security of that series (other than a covenant or agreement a
default in whose performance or whose breach is elsewhere in this
Section specifically dealt with), and continuance of such default
or breach for a period of 60 days after there has been given, by
registered or certified mail, to the Company by the Trustee or to
the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities of that series a
written notice specifying such default or breach and requiring it
to be remedied and stating that such notice is a "Notice of
Default" hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
43
(i) commences a voluntary case or proceedings,
(ii) consents to the entry of an order for relief
against it in an involuntary case or proceedings,
(iii) consents to the appointment of a Custodian of it
or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of its
creditors, or
(v) issues a public announcement admitting its
inability to pay its debts generally as they become due; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary
case,
(ii) appoints a Custodian of the Company or for all or
substantially all of its property, or
(iii) orders the winding-up or liquidation of the
Company,
(iv) and the order or decree remains unstayed and in
effect for 90 days; or
(7) any other Event of Default provided with respect to
Securities of that series.
(b) The term "Bankruptcy Law" means title 11, U.S. Code, as
amended from time to time, or any similar foreign, Federal or State law for the
relief of debtors. The term "Custodian" means any custodian, receiver, trustee,
assignee, liquidator or other similar official under any Bankruptcy Law.
SECTION 502. Acceleration of Maturity; Rescission and Annulment
--------------------------------------------------
(a) If an Event of Default (other than an Event of Default
specified in clauses (5) and (6) of Subsection 501(a) with respect to the
Company) with respect to Securities of any series at the time Outstanding occurs
and is continuing, then and in every such case the Trustee or the Holders of not
less than 25% in principal amount of the Outstanding Securities of that series
may declare the principal (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) plus accrued and unpaid interest of all
the Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal amount plus accrued and unpaid interests or
specified portion thereof shall become immediately due and payable. If an Event
of Default specified in clauses (5) and (6) of Subsection 501(a) with respect to
the Company occurs, the amounts described above with respect to the Outstanding
44
Securities of all series shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. Upon payment of such principal and interest, all of the Company's
obligations under the Securities of such Series and this Indenture, other than
obligations under Section 606, shall terminate.
(b) At any time after such a declaration of acceleration with
respect to Securities of any series has been made and before a judgment or
decree for payment of the money due has been obtained by the Trustee as
hereinafter provided in this Article, the Holders of a majority in principal
amount of the Outstanding Securities of that series, by written notice to the
Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient in cash to pay all principal, interest and Additional
Amounts which have become due other than by such declaration of
acceleration, interest or any such overdue amounts, and amounts
owing the Trustee;
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or
premium, if any) or interest on Securities of that series which
have become due solely by such declaration of acceleration, have
been cured or waived as provided in Section 514; and
(3) such rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.
No such rescission shall affect any subsequent default or impair
any right consequent thereon.
SECTION 503. Collection of Indebtedness and Suits for Enforcement by
-------------------------------------------------------
Trustee
-------
(a) The Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts on any Security of any series and
any related coupon when such interest or Additional Amounts
becomes due and payable and such default continues for a period
of 30 days, or
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, with interest upon any overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
45
(b) If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon Securities of
such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities of such series, wherever situated.
(c) If an Event of Default with respect to Securities of any
series occurs and is continuing, the Trustee may in its discretion proceed to
protect and enforce its rights and the rights of the Holders of Securities of
such series and any related coupons by such appropriate judicial proceedings as
the Trustee shall deem necessary to protect and enforce any such rights, whether
for the specific enforcement of any covenant or agreement in this Indenture or
in aid of the exercise of any power granted herein, or to enforce any other
proper remedy.
SECTION 504. Trustee May File Proofs of Claim
--------------------------------
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company or any other obligor upon the
Securities or the property of the Company, such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(1) to file and prove a claim for the whole amount of
principal and premium, if any, or in the case of Original Issue
Discount Securities or Indexed Securities, such portion of the
principal as may be provided for in the terms thereof and
premium, if any, and interest, if any, owing and unpaid in
respect of the Securities and to file such other papers or
documents as may be necessary or advisable in order to have the
claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders allowed in
such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the
same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 606.
46
(b) Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security or coupon in
any such proceeding.
SECTION 505. Trustee May Enforce Claims Without Possession of Securities
-----------------------------------------------------------
or Coupons
----------
All rights of action and claims under this Indenture or the
Securities or coupons may be prosecuted and enforced by the Trustee without the
possession of any of the Securities or coupons or the production thereof in any
proceeding relating thereto, and any such proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the Holders of the Securities and
coupons in respect of which such judgment has been recovered.
SECTION 506. Application of Money Collected
------------------------------
Any money collected by the Trustee pursuant to this Article shall
be applied in the following order, at the date or dates fixed by the Trustee
and, in case of the distribution of such money on account of principal (or
premium, if any) or interest, if any, upon presentation of the Securities or
coupons, or both, as the case may be, and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
SECOND: To the payment of the amounts then due and unpaid upon
the Securities and coupons for principal (and premium, if any) and
interest, if any, in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the aggregate amounts due and payable on such
Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
THIRD: To the payment of the remainder, if any, to the Company.
SECTION 507. Limitation on Suits
-------------------
No Holder of any Security of any series or any related coupon
shall have any right to institute any proceeding, judicial or otherwise, with
respect to this Indenture, or for the appointment of a receiver or trustee, or
for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities of that
series;
47
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been
given to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
------------------------------------------------------------
and Interest and Additional Amounts, if Any
-------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder
of any Security or coupon shall have the right which is absolute and
unconditional to receive payment of the principal of (and premium, if any) and
(subject to Sections 305 and 307) interest, if any, and Additional Amounts, if
any, on such Security or payment of such coupon on the respective due dates
expressed in such Security or coupon (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such payment,
and such rights shall not be impaired without the consent of such Holder.
SECTION 509. Restoration of Rights and Remedies
----------------------------------
If the Trustee or any Holder of a Security or coupon has
instituted any proceeding to enforce any right or remedy under this Indenture
and such proceeding has been discontinued or abandoned for any reason, or has
been determined adversely to the Trustee or to such Holder, then and in every
such case the Company, the Trustee and the Holders of Securities and coupons
shall, subject to any determination in such proceeding, be restored severally
and respectively to their former positions hereunder and thereafter all rights
and remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
SECTION 510. Rights and Remedies Cumulative
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in
Subsection 306(f), no right or remedy herein conferred upon or reserved to the
Trustee or to the Holders of Securities or coupons is intended to be exclusive
of any other right or remedy, and every right and remedy shall, to the extent
48
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 511. Delay or Omission Not Waiver
----------------------------
No delay or omission of the Trustee or of any Holder of any
Security or coupon to exercise any right or remedy accruing upon any Event of
Default shall impair any such right or remedy or constitute a waiver of any such
Event of Default or an acquiescence therein. Every right and remedy given by
this Article or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders of Securities or coupons, as the case may be.
SECTION 512. Control by Holders of Securities
--------------------------------
With respect to any series, the Holders of not less than a
majority in principal amount of the Outstanding Securities of such series shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee with respect to the Securities of such series, provided
that
(a) such direction shall not be in conflict with any rule of law
or with this Indenture,
(b) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(c) the Trustee need not take any action which might involve it
in personal liability or be unjustly prejudicial to the Holders of Securities of
such series not consenting.
SECTION 513. Undertaking for Costs
---------------------
All parties to this Indenture agree that in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorney's fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant, provided that this
Section 513 shall not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 508 hereof, or a suit by Holders of more than 10% in
principal amount of the then Outstanding Securities.
SECTION 514. Waiver of Past Defaults
-----------------------
(a) The Holders of not less than a majority in principal amount
of the Outstanding Securities of any series may on behalf of the Holders of all
49
the Securities of such series and any related coupons waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest, if any, or Additional Amounts on any Security of
such series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of
the Holder of each Outstanding Security of such series affected.
(b) Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon.
SECTION 515. Waiver of Usury, Stay or Extension Laws
---------------------------------------
The Company covenants (to the extent that it may lawfully do so)
that it will not at any time insist upon, or plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay or extension law or any
usury or other law wherever enacted, now or at any time hereafter in force,
which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 601. Notice of Defaults
------------------
Within five days after the earlier of receipt from the Company of
notice of the occurrence of a Default or Event of Default hereunder or the date
such occurrence hereunder actually becomes known to a Responsible Officer of the
Trustee, the Trustee shall transmit to all Holders of Securities of such series,
in the manner and to the extent provided in TIA Section 313(c), notice of such
Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, that, except in the case of a Default in the payment
of the principal of (or premium, if any) or interest, if any, on any Security of
such series, or in the payment of any sinking or purchase fund installment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities and coupons of such series; and
provided further that in the case of any Default or breach of the character
specified in clause (4) of Subsection 501(a) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given until at least
60 days after the occurrence thereof unless otherwise specified in accordance
with Section 301.
50
SECTION 602. Certain Rights of Trustee
-------------------------
(a) Subject to the provisions of TIA Section 315(a) through
315(d):
(1) The Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and
no implied covenants or obligations shall be read into this
Indenture against the Trustee.
(2) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture, note, coupon
or other paper or document (whether in its original or facsimile
form) believed by it to be genuine and to have been signed or
presented by the proper party or parties.
(3) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company
Order (other than delivery of any Security, together with any
coupons appertaining thereto, to the Trustee for authentication
and delivery pursuant to Section 303 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of
Directors may be sufficiently evidenced by a Board Resolution.
(4) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it
shall be proved that the Trustee was negligent in ascertaining
the pertinent facts.
(5) The Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in
accordance with the direction of the Holders of a majority in
principal amount of the Outstanding Securities of any series,
determined as provided in Sections 101 and 104.
(6) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its
part, rely upon a Board Resolution, an Opinion of Counsel or an
Officers' Certificate.
(7) The Trustee may consult with counsel of its choosing and
the advice of such counsel or any Opinion of Counsel shall be
full and complete authorization and protection in respect of any
action taken, suffered or omitted by it hereunder in good faith
and in reliance thereon.
(8) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the
request or direction of any of the Holders of Securities of any
series or any related coupons pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or
indemnity reasonably satisfactory to the Trustee against the
51
costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction.
(9) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, coupon or other
paper or document, but the Trustee, in its discretion, may make
such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make
such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company,
personally or by agent or attorney but in the case of any
certificate or opinion specifically required by the Indenture to
be delivered to the Trustee, the Trustee shall have a duty to
examine the same to determine whether they conform to the
Indenture requirements.
(10) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by
or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
(11) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred
upon it by this Indenture other than any liabilities arising out
of the negligence of the Trustee.
(12) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder,
and to each agent, custodian and other Person employed to act
hereunder.
(13) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals
and/or titles of officers authorized at such time to take
specified actions pursuant to this Indenture, which Officers'
Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so
authorized in any such certificate previously delivered and not
superseded.
(b) The Trustee shall not be required to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of
its duties hereunder, or in the exercise of any of its rights or powers, if it
shall have reasonable grounds for believing that repayment of such funds or
adequate indemnity against such risk or liability is not reasonably assured to
it.
SECTION 603. Not Responsible for Recitals or Issuance of Securities
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
52
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
SECTION 604. May Hold Securities
-------------------
The Trustee, any Paying Agent, Security Registrar, Authenticating
Agent or any other agent of the Company in its individual or any other capacity,
may become the owner or pledgee of Securities and coupons and, subject to TIA
Sections 310(b) and 311, may otherwise deal with the Company with the same
rights it would have if it were not Trustee, Paying Agent, Security Registrar,
Authenticating Agent or such other agent.
SECTION 605. Money Held in Trust
-------------------
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company.
SECTION 606. Compensation and Reimbursement
------------------------------
(a) The Company agrees:
(1) to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as shall
be agreed upon in writing from time to time (which compensation
shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon
its request for all reasonable expenses, disbursements and
advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and
counsel), except any such expense, disbursement or advance as
shall be determined to have been caused by its own negligence or
willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all loss,
damage, claims, liability or expense incurred without negligence
or bad faith on its own part, arising out of or in connection
with the acceptance or administration of the trust or trusts
hereunder, including the costs and expenses of defending itself
against any claim (whether asserted by the Company or any Holder
or any other Person) or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
53
(b) As security for the performance of the obligations of the
Company under this Section, the Trustee shall have a claim prior to the
Securities upon all property and funds held or collected by the Trustee as such,
except funds held in trust for the payment of principal of (or premium, if any)
or interest, if any, on particular Securities or any coupons.
(c) When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (5) or (6) of Subsection 501(a) occurs, the
expenses and compensation for the services are intended to constitute expenses
of administration under any Bankruptcy Law.
SECTION 607. Corporate Trustee Required; Eligibility
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
SECTION 608. Resignation and Removal; Appointment of Successor
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment
of a successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the
Securities of one or more series by giving written notice thereof to the
Company.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company
or by any Holder of a Security who has been a bona fide Holder of
a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the
Company or by any Holder of a Security who has been a bona fide
Holder of a Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or
of its property shall be appointed or any public officer shall
take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or
54
liquidation, then, in any such case, (i) the Company by or
pursuant to a Board Resolution may remove the Trustee and appoint
a successor Trustee with respect to all Securities, or (ii)
subject to TIA Section 315(e), any Holder of a Security who has
been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of
the Trustee with respect to all Securities and the appointment of
a successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving of a
notice of resignation or the delivery of an Act of removal, the Trustee
resigning or being removed or any Holder who has been a bona fide Holder of
Securities for at least six months, may petition at the expense of the Company
any court of competent jurisdiction for the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become incapable
of acting, or if a vacancy shall occur in the office of Trustee for any cause
with respect to the Securities of one or more series, the Company, by or
pursuant to a Board Resolution, shall promptly appoint a successor Trustee or
Trustees with respect to the Securities of that or those series (it being
understood that any such successor Trustee may be appointed with respect to the
Securities of one or more or all of such series and that at any time, except as
provided in Section 613, there shall be only one Trustee with respect to the
Securities of any particular series). If, within one year after such
resignation, removal or incapability, or the occurrence of such vacancy, a
successor Trustee with respect to the Securities of any series shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities of such series delivered to the Company and the retiring
Trustee, the successor Trustee so appointed shall, forthwith upon its acceptance
of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by
the Company. If no successor Trustee with respect to the Securities of any
series shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner hereinafter provided, any Holder of a
Security who has been a bona fide Holder of a Security of such series for at
least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee with respect to Securities of such series.
(g) The Company shall give notice of each resignation and each
removal of the Trustee with respect to the Securities of any series and each
appointment of a successor Trustee with respect to the Securities of any series
in the manner provided for notices to the Holders of Securities in Section 106.
Each notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
SECTION 609. Acceptance of Appointment by Successor
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee
with respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
55
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee
with respect to the Securities of one or more (but not all) series, the Company,
the retiring Trustee and each successor Trustee with respect to the Securities
of one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each
successor Trustee all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates,
(2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers,
trusts and duties of the retiring Trustee with respect to the
Securities of that or those series as to which the retiring
Trustee is not retiring shall continue to be vested in the
retiring Trustee, and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee,
it being understood that nothing herein or in such supplemental
indenture shall constitute such Trustees co-trustees of the same
trust and that each such Trustee shall be trustee of a trust or
trusts hereunder separate and apart from any trust or trusts
hereunder administered by any other such Trustee; and upon the
execution and delivery of such supplemental indenture the
resignation or removal of the retiring Trustee shall become
effective to the extent provided therein and each such successor
Trustee, without any further act, deed or conveyance, shall
become vested with all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or
those series to which the appointment of such successor Trustee
relates; but, on request of the Company or any successor Trustee,
such retiring Trustee shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such
retiring Trustee hereunder with respect to the Securities of that
or those series to which the appointment of such successor
Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
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SECTION 610. Merger, Conversion, Consolidation or Succession to Business
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted
or with which it may be consolidated, or any corporation resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
SECTION 611. Appointment of Authenticating Agent
-----------------------------------
(a) At any time when any of the Securities remain Outstanding,
the Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
reasonably acceptable to the Company and, except as may otherwise be provided
pursuant to Section 301, shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws of
the United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
(b) Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
57
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or further act on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent for any series of Securities may at
any time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
(d) The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
(e) If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
[ ]
----------------------------------
as Trustee
By
--------------------------------
as Authenticating Agent
By
--------------------------------
Authorized Signatory
SECTION 612. Conflicting Interests
---------------------
The Trustee shall comply with the provisions of Section 310(b) of
the Trust Indenture Act. [Disclosure of any Subordinated Indenture entered into
between the Company and the Trustee.]
58
SECTION 613. Appointment of Co-Trustee
-------------------------
(a) For the purpose of meeting any legal requirements of any
jurisdiction in which the Company may at the time be located in connection with
the enforcement of any right or the taking of any action on behalf of the
Holders of any Securities issued hereunder, the Trustee shall have the power and
may execute and deliver all instruments necessary to appoint one or more Persons
to act as a co-trustee or co-trustees, or separate trustee or separate trustees,
such powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. Each co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a trustee under Section 607. The
Trustee shall promptly notify the Holders and the Company of the appointment of
a co-trustee or separate trustee under this section.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(1) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee
or co-trustee jointly (it being understood that such separate
trustee or co-trustee is not authorized to act separately without
the Trustee joining in such act), except to the extent that under
any law of any jurisdiction in which any particular act or acts
are to be performed the Trustee shall be incompetent or
unqualified to perform such act or acts, in which event such
rights, powers, duties and obligations shall be exercised and
performed singly by such separate trustee or co-trustee, but
solely at the direction of the Trustee;
(2) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder;
(3) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee;
(4) any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to
each of them. Every instrument appointing any separate trustee or
co-trustee shall refer to this Indenture and the conditions of
this Article Six. Each separate trustee and co-trustee, upon its
acceptance of the trusts conferred, shall be vested with the
estates or property specified in its instrument of appointment,
either jointly with the Trustee or separately, as may be provided
therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating
to the conduct of, affecting the liability of, or affording
protection or rights (including the rights to compensation,
reimbursement and indemnification hereunder) to, the Trustee.
Every such instrument shall be filed with the Trustee; and
(5) any separate trustee or co-trustee may at any time
constitute the Trustee its agent or attorney-in-fact with full
power and authority, to the extent not prohibited by law, to do
59
any lawful act under or in respect of this Indenture on its
behalf and in its name for the purposes of enforcing any rights
or taking any other action on behalf of the Holders of any
Securities issued hereunder.
SECTION 614. Trustee's Application for Instructions from the Company
-------------------------------------------------------
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
five Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 701. Disclosure of Names and Addresses of Holders
--------------------------------------------
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than 15 days after each Regular
Record Date for Securities of each series at the time Outstanding, a list in
such form as the Trustee may reasonably require, of the names and addresses of
the Holders of Registered Securities as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities,
semiannually, upon such dates as are set forth in the Board Resolution,
Officers' Certificates indenture supplemental hereto authorizing such series,
and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, that, so long as the Trustee is the Security Registrar, no such list
shall be required to be furnished.
(c) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the most
recent list furnished to the Trustee as provided in Section 701 and the names
and addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(d) The rights of the Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and privileges of the Trustee, shall be as provided by
the Trust Indenture Act.
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(e) Every Holder of Securities or coupons, by receiving and
holding the same, agrees with the Company and the Trustee that neither the
Company nor the Trustee nor any Authenticating Agent nor any Paying Agent nor
any Security Registrar shall be held accountable by reason of the disclosure of
any information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
SECTION 702. Reports by Trustee
------------------
Within 60 days after May 15 of each year commencing with the
first May 15 after the first issuance of Securities pursuant to this Indenture,
the Trustee shall transmit by mail to all Holders of Securities as provided in
TIA Section 313(c) a brief report dated as of such May 15 if required by TIA
Section 313(a).
A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee of the listing or
de-listing of the Securities on any stock exchange.
SECTION 703. Reports by Company
------------------
The Company will:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual reports and
of the information, documents, and other reports (or copies of such portions of
any of the foregoing as the Commission may from time to time by rules and
regulations prescribe) which the Company may be required to file with the
Commission pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934; or, if the Company is not required to file information, documents
or reports pursuant to either of such Sections, then it will file with the
Trustee and the Commission, in accordance with rules and regulations prescribed
from time to time by the Commission, such of the supplementary and periodic
information, documents and reports which may be required pursuant to Section 13
of the Securities Exchange Act of 1934 in respect of a security listed and
registered on a national securities exchange as may be prescribed from time to
time in such rules and regulations;
(b) file with the Trustee and the Commission, in accordance with
rules and regulations prescribed from time to time by the Commission, such
additional information, documents and reports with respect to compliance by the
Company with the conditions and covenants of this Indenture as may be required
from time to time by such rules and regulations; and
(c) transmit by mail to the Holders of Securities, within 30 days
after the filing thereof with the Trustee, in the manner and to the extent
provided in TIA Section 313(c), such summaries of any information, documents and
reports required to be filed by the Company pursuant to Subsection (a) and (b)
of this Section 703 as may be required by rules and regulations prescribed from
time to time by the Commission.
61
(d) Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 704. Calculation of Original Issue Discount
--------------------------------------
Upon request of the Trustee, the Company shall file with the
Trustee promptly at the end of each calendar year
(a) a written notice specifying the amount of original issue
discount (including daily rates and accrual periods), if any, accrued on
Outstanding Securities as of the end of such year and
(b) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
SECTION 801. Company May Consolidate, Etc., Only on Certain Terms
----------------------------------------------------
The Company shall not consolidate with or merge with or into any
other Person or convey or transfer its properties and assets substantially as an
entirety to any Person, unless:
(a) either the Company shall be the continuing corporation, or
the corporation (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an entirety
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all of the
obligations of the Company under this Indenture and on all the Securities and
this Indenture;
(b) immediately after giving effect to such transaction, no
Default or Event of Default shall have occurred and be continuing; and
(c) the Company and the successor Person have delivered to the
Trustee an Officers' Certificate and an Opinion of Counsel each stating that
such consolidation, merger, conveyance or transfer and such supplemental
indenture comply with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
SECTION 802. Successor Person Substituted
----------------------------
(a) Upon any consolidation or merger, or any conveyance or
transfer of the properties and assets of the Company substantially as an
entirety in accordance with Section 801, the successor corporation formed by
such consolidation or into which the Company is merged or the successor Person
to which such conveyance or transfer is made shall succeed to, and be
62
substituted for, and may exercise every right and power of, the Company under
this Indenture with the same effect as if such successor had been named as the
Company herein; and in the event of any such conveyance or transfer (except by a
lease), the Company shall be discharged from all its obligations and covenants
under this Indenture and the Securities and coupons and may be dissolved and
liquidated.
(b) Such successor entity thereupon may cause to be signed, and
may issue either in its own name or in the name of the Company, any or all of
the Securities issuable hereunder which theretofore shall not have been signed
by the Company and delivered to the Trustee; and, upon the order of such
successor entity, instead of the Company, and subject to all the terms,
conditions and limitations prescribed in this Indenture, the Trustee shall
authenticate and shall deliver any Securities which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication, and any Securities which such successor entity thereafter shall
cause to be signed and delivered to the Trustee for that purpose. All the
Securities of any series so issued shall in all respects have the same legal
rank and benefit under this Indenture as the Securities of such series
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Securities had been issued at the date of the execution
hereof.
(c) In case of any such merger in which the Company is not the
surviving corporation or any such consolidation, sale, lease, assignment,
transfer or conveyance, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
SECTION 803. Officers' Certificate and Opinion of Counsel
--------------------------------------------
Any consolidation, merger, sale, conveyance, assignment, transfer
or lease permitted under Section 801 is also subject to the condition that the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
to the effect that any such consolidation, merger, sale, conveyance, transfer,
assignment or lease, and the assumption by any successor Person and any such
supplemental indenture, comply with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 901. Supplemental Indentures Without Consent of Holders
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the
Company when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company
and the assumption by any such successor of the covenants of the Company herein
and in the Securities contained; or
63
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default for the benefit of
the Holders of all or any series of Securities (and if such Events of Default
are to be for the benefit of less than all series of Securities, stating that
such Events of Default are expressly being included solely for the benefit of
such series); provided, that, in respect of any such additional Events of
Default such supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon such
default or may limit the remedies available to the Trustee upon such default or
may limit the right of the Holders of a majority in aggregate principal amount
of that or those series of Securities to which such additional Events of Default
apply to waive such default; or
(d) to add to or change any of the provisions of this Indenture
to provide that Bearer Securities may be registrable as to principal, to change
or eliminate any restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(e) to change or eliminate any of the provisions of this
Indenture; provided that any such change or elimination shall become effective
only when there is no Security Outstanding of any series created prior to the
execution of such supplemental indenture which is entitled to the benefit of
such provision; or
(f) to secure the Securities pursuant to the requirements of such
indenture supplement, if applicable; or
(g) to establish the form or terms of Securities of any series
and any related coupons as permitted by Sections 201 and 301, including the
provisions and procedures relating to Securities convertible into or
exchangeable for any securities of any Person (including the Company); or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
(i) to close this indenture with respect to the authentication
and delivery of additional series of Securities, to cure any ambiguity, to
correct or supplement any provision herein which may be inconsistent with any
other provision herein, or to make any other provisions with respect to matters
or questions arising under this Indenture; provided that such action shall not
64
adversely affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(j) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect; or
(k) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
SECTION 902. Supplemental Indentures with Consent of Holders
-----------------------------------------------
(a) With the consent of the Holders of not less than a majority
in principal amount of all Outstanding Securities affected by such supplemental
indenture, with each series voting separately, by Act of said Holders delivered
to the Company and the Trustee, the Company when authorized by or pursuant to a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affects
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, that, no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of such series affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or
interest on, any Security, subject to the provisions of Section
308; or reduce the principal amount thereof (or premium, if any)
or the rate of interest (or change the manner of calculation of
interest), thereon, or any Additional Amounts with respect
thereto, or any premium payable upon the redemption thereof, or
change any obligation of the Company to pay Additional Amounts
pursuant to Section 1005 (except as contemplated by Section
801(a) and permitted by Section 901(a)), or reduce the amount of
the principal of an Original Issue Discount Security or Indexed
Security that would be due and payable upon a declaration of
acceleration of the Maturity thereof pursuant to Section 502 or
the amount thereof provable in bankruptcy pursuant to Section
504, or adversely affect any right of repayment at the option of
the Holder of any Security, or change any Place of Payment where,
or the Currency in which, any Security or any premium or interest
or Additional Amount thereon is payable, or impair the right to
institute suit for the enforcement of any such payment on or
after the Stated Maturity thereof (or, in the case of redemption
or repayment at the option of the Holder, on or after the
Redemption Date or the Repayment Date, as the case may be), or
adversely affect any right to convert or exchange any Security as
may be provided pursuant to Section 301 herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose
Holders is required for any such supplemental indenture, or the
consent of whose Holders is required for any waiver with respect
65
to such series (of compliance with certain provisions of
this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or reduce the
requirements of Section 1504 for quorum or voting, or
(3) modify any of the provisions of this Section, Section
514 or Section 1007, except to increase any such percentage or to
provide that certain other provisions of this Indenture that
affect such series cannot be modified or waived without the
consent of the Holder of each Outstanding Security affected
thereby, or
(4) cause the Securities to be expressly subordinated to
other indebtedness of the Company.
(b) It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
(c) A supplemental indenture which changes or eliminates any
covenant or other provision of this Indenture which has expressly been included
solely for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
(d) The Company may, but shall not be obligated to, fix a record
date for the purpose of determining the Persons entitled to consent to any
indenture supplemental hereto. If a record date is fixed, the Holders at the
close of Business on such record date, or their duly designated proxies, and
only such Persons, shall be entitled to consent to such supplemental indenture,
whether or not such Holders remain Holders after such record date; provided that
unless such consent shall have become effective by virtue of the requisite
percentage having been obtained prior to the date which is 90 days after such
record date, any such consent previously given shall automatically and without
further action by any Holder be cancelled and of no further effect.
SECTION 903. Execution of Supplemental Indentures
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon (subject to the provisions of
Article Six hereof), an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
SECTION 904. Effect of Supplemental Indentures
---------------------------------
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
66
supplemental indenture shall form a part of this Indenture for all purposes; and
every Holder of Securities theretofore or thereafter authenticated and delivered
hereunder and of any coupon appertaining thereto shall be bound thereby.
SECTION 905. Conformity with Trust Indenture Act
-----------------------------------
Every supplemental indenture executed pursuant to this Article
shall conform to the requirements of the Trust Indenture Act as then in effect.
SECTION 906. Reference in Securities to Supplemental Indentures
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
ARTICLE TEN
COVENANTS
SECTION 1001. Payment of Principal, Premium, if any, and Interest
---------------------------------------------------
The Company covenants and agrees for the benefit of the Holders
of each series of Securities that it will duly and punctually pay the principal
of (and premium, if any) and interest and Additional Amounts, if any, on the
Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Any interest
due on Bearer Securities on or before Maturity, other than Additional Amounts,
if any, payable as provided in Section 1005 in respect of principal of (or
premium, if any, on) such a Security, shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. Unless otherwise specified with
respect to Securities of any series pursuant to Section 301, at the option of
the Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security or wire transfer to an account in the United States
maintained by the Payee.
SECTION 1002. Maintenance of Office or Agency
-------------------------------
(a) If Securities of a series are issuable only as Registered
Securities, the Company shall maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities of that
series that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain:
67
(1) in the Borough of Manhattan, The City of New York, an
office or agency where any Registered Securities of that series
may be presented or surrendered for payment, where any Registered
Securities of that series may be surrendered for registration of
transfer, where Securities of that series may be surrendered for
exchange, where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as
applicable, and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture
may be served and where Bearer Securities of that series and
related coupons may be presented or surrendered for payment in
the circumstances described in the clause (2) of this Subsection
(and not otherwise),
(2) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series which is located outside
the United States, an office or agency where Securities of that
series and related coupons may be presented and surrendered for
payment; provided, that, if the Securities of that series are
listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock
exchange shall so require, the Company will maintain a Paying
Agent for the Securities of that series in Luxembourg or any
other required city located outside the United States, as the
case may be, so long as the Securities of that series are listed
on such exchange, and
(3) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of
that series may be surrendered for registration of transfer,
where Securities of that series may be surrendered for exchange,
where Securities of that series that are convertible or
exchangeable may be surrendered for conversion or exchange, as
applicable and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture
may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of each
such office or agency.
(b) If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment at the offices specified in the Security, in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
(c) Unless otherwise specified with respect to any Securities
pursuant to Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided, that,
if the Securities of a series are payable in Dollars, payment of principal of
(and premium, if any) and interest, if any, on any Bearer Security shall be made
at the office of the Company's Paying Agent in the Borough of Manhattan, The
68
City of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for such purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
(d) The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, that, no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series of
Securities the office or agency of the Company in the Borough of Manhattan, The
City of New York, and initially appoints the Trustee at its Corporate Trust
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
(e) Unless otherwise specified with respect to any Securities
pursuant to Section 301, if and so long as the Securities of any series
(1) are denominated in a Currency other than Dollars,
(2) may be payable in a Currency other than Dollars, or
(3) so long as it is required under any other provision of
the Indenture,
the Company will maintain with respect to each such series of Securities, or as
so required, at least one Exchange Rate Agent.
SECTION 1003. Money for Securities Payments to be Held in Trust
-------------------------------------------------
(a) If the Company or any Subsidiary or any Affiliate of any of
them shall at any time act as Paying Agent with respect to any series of any
Securities and any related coupons, it will, on or before each due date of the
principal of (or premium, if any) or interest, if any, on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Subsections
312(b), 312(d) and 312(e)) sufficient to pay the principal (and premium, if any)
and interest, if any, on Securities of such series so becoming due until such
sums shall be paid to such Persons or otherwise disposed of as herein provided,
and will promptly notify the Trustee of its action or failure so to act.
(b) Whenever the Company shall have one or more Paying Agents for
any series of Securities and any related coupons, it will, on or before each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in Subsection 1003(a)) sufficient to pay the principal (or premium, if
69
any) or interest, if any, so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
(d) Except as otherwise provided in the Securities of any series,
any money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series and remaining unclaimed for two
years after such principal, premium or interest has become due and payable shall
be paid to the Company upon Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal, premium or interest on any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, that, the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment for such
series, or mailed to each Holder of Registered Securities of such series, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
SECTION 1004. Corporate Existence
-------------------
Subject to Article Eight, the Company shall do or cause to be
done all things necessary to preserve and keep in full force and effect its
corporate existence and material rights and franchises (charter and statutory);
provided, that, neither the Company shall be required to preserve any such right
or franchise if it shall determine that the preservation thereof is no longer
necessary or desirable in the conduct of the business of the Company; and
provided further, however, that the foregoing shall not prohibit a sale,
transfer or conveyance of a Subsidiary or any of its assets in compliance with
the terms of the Indenture.
SECTION 1005. Additional Amounts
------------------
(a) If any Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the Holder of a Security of such
series or any coupon appertaining thereto Additional Amounts as may be specified
as contemplated by Section 301. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series or payment of any related coupon
or the net proceeds received on the sale or exchange of any Security of any
series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series established pursuant to
Section 301 to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms and express mention
70
of the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
(b) Except as otherwise specified as contemplated by Section 301,
if the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal,
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal, premium or
interest on the Securities of that series shall be made to Holders of Securities
of that series or any related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities of that series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. In the event that the Trustee or any Paying Agent, as the case
may be, shall not so receive the above-mentioned certificate, then the Trustee
or such Paying Agent shall be entitled (1) to assume that no such withholding or
deduction is required with respect to any payment of principal of (or premium,
if any) or interest with respect to any Securities of a series or related
coupons until it shall have received a certificate advising otherwise and (2) to
make all payments of principal of (or premium, if any) and interest with respect
to the Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
SECTION 1006. Statement as to Compliance
--------------------------
The Company will deliver to the Trustee, within 120 days after
the end of each fiscal year, a brief certificate from the principal executive
officer, principal financial officer or principal accounting officer as to his
or her knowledge of the Company's compliance with all conditions and covenants
under this Indenture and, if the Company is in default, specifying all such
defaults and the nature and status thereof of which he or she may have
knowledge. For purposes of this Section 1006, such compliance shall be
determined without regard to any period of grace or requirement of notice under
this Indenture.
SECTION 1007. Waiver of Certain Covenants
---------------------------
With respect to the Securities of any series, the Company may
omit in any particular instance to comply with any term, provision or condition
specified pursuant to Section 301 as being subject to this Section 1007, if
before or after the time for such compliance the Holders of at least a majority
71
in principal amount of all Outstanding Securities of such series affected by
such term, provision or condition, by Act of such Holders, waive such compliance
in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
SECTION 1008. Statement by Officers as to Default
-----------------------------------
The Company shall deliver to the Trustee, as soon as possible and
in any event within [ten] days after the Company becomes aware of the occurrence
of any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 1101. Applicability of Article
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
SECTION 1102. Election to Redeem; Notice to Trustee
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of less than all of the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
SECTION 1103. Selection by Trustee of Securities to be Redeemed
-------------------------------------------------
If less than all the Securities of any series issued on the same
day with the same terms are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
72
The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
SECTION 1104. Notice of Redemption
--------------------
(a) Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 days nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified by the terms of such series
established pursuant to Section 301, to each Holder of Securities to be
redeemed, but failure to give such notice in the manner herein provided to the
Holder of any Security designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion thereof.
(b) Any notice that is mailed to the Holders of Registered
Securities in the manner herein provided shall be conclusively presumed to have
been duly given, whether or not the Holder receives the notice. All notices of
redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest,
if any, to the Redemption Date payable as provided in Section
1106,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case
of partial redemption, the principal amount) of the particular
Securities to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and
after the Redemption Date, upon surrender of such Security, the
Holder will receive, without a charge, a new Security or
Securities of authorized denominations for the principal amount
thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as
provided in Section 1106 will become due and payable upon each
such Security, or the portion thereof, to be redeemed and, if
applicable, that interest thereon shall cease to accrue on and
after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
appertaining thereto, if any, maturing after the Redemption Date,
are to be surrendered for payment of the Redemption Price and
accrued interest, if any,
73
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must
be accompanied by all coupons maturing subsequent to the
Redemption Date or the amount of any such missing coupon or
coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee
for such series and any Paying Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be
redeemed, and if such Bearer Securities may be exchanged for
Registered Securities not subject to redemption on this
Redemption Date pursuant to Section 305 or otherwise, the last
date, as determined by the Company, on which such exchanges may
be made, and
(10) the CUSIP number of such Security, if any.
(c) Notice of redemption of Securities to be redeemed shall be
given by the Company or, at the Company's request, by the Trustee in the name
and at the expense of the Company.
SECTION 1105. Deposit of Redemption Price
---------------------------
On or prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as its own
Paying Agent, which it may not do in the case of a sinking fund payment under
Article Twelve, segregate and hold in trust as provided in Section 1003) an
amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Subsections
312(b), 312(d) and 312(e)) sufficient to pay on the Redemption Date the
Redemption Price of, and (unless otherwise specified pursuant to Section 301)
accrued and unpaid interest, if any, on, all the Securities or portions thereof
which are to be redeemed on that date.
SECTION 1106. Securities Payable on Redemption Date
-------------------------------------
(a) Notice of redemption having been given as aforesaid, the
Securities of any series so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Subsections 312(b), 312(d) and 312(e)) (together with
accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest, if any) such Securities shall if the same were
interest-bearing cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, that, installments of interest on Bearer
74
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided further that installments of interest on Registered
Securities whose Stated Maturity is prior to (or, if specified pursuant to
Section 301, on) the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
(b) If any Bearer Security surrendered for redemption shall not
be accompanied by all appurtenant coupons maturing after the Redemption Date,
such Security may be paid after deducting from the Redemption Price an amount
equal to the face amount of all such missing coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
be furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided, that,
interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
(c) If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate of
interest set forth in such Security or, in the case of an Original Issue
Discount Security, at the Yield to Maturity of such Security.
SECTION 1107. Securities Redeemed in Part
---------------------------
Any Registered Security which is to be redeemed only in part
(pursuant to the provisions of this Article or of Article Twelve) shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing) and the Company shall execute and
the Trustee shall authenticate and deliver to the Holder of such Security
without service charge a new Security or Securities of the same series, of any
authorized denomination as requested by such Holder in aggregate principal
amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered. However, if less than all the Securities of any
series with differing issue dates, interest rates and stated maturities are to
be redeemed, the Company in its sole discretion shall select the particular
Securities to be redeemed and shall notify the Trustee in writing thereof at
least 45 days prior to the relevant redemption date.
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ARTICLE TWELVE
SINKING FUNDS
SECTION 1201. Applicability of Article
------------------------
(a) The provisions of this Article shall be applicable to any
sinking fund for the retirement of Securities of a series except as otherwise
specified as contemplated by Section 301 for Securities of such series.
(b) The minimum amount of any sinking fund payment provided for
by the terms of Securities of any series is herein referred to as a "mandatory
sinking fund payment", and any payment in excess of such minimum amount provided
for by the terms of such Securities of any series is herein referred to as an
"optional sinking fund payment". If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be
subject to reduction as provided in Section 1202. Each sinking fund payment
shall be applied to the redemption of Securities of any series as provided for
by the terms of Securities of such series.
SECTION 1202. Satisfaction of Sinking Fund Payments with Securities
-----------------------------------------------------
Except as otherwise specifically contemplated by Section 301 for
Securities of such series, the Company may, in satisfaction of all or any part
of any mandatory sinking fund payment with respect to the Securities of a
series, (a) deliver Outstanding Securities of such series (other than any
previously called for redemption) together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (b) apply as
a credit Securities of such series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, as provided for by the terms of such Securities; provided that
such Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
SECTION 1203. Redemption of Securities for Sinking Fund
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for
Securities of any series, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Subsections 312(b), 312(d) and 312(e)) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so delivered and credited.
If such Officers' Certificate shall specify an optional amount to be added in
cash to the next ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not less than 30
76
days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
SECTION 1301. Applicability of Article
------------------------
Repayment of Securities of any series before their Stated
Maturity at the option of Holders thereof shall be made in accordance with the
terms of such Securities and (except as otherwise specified by the terms of such
series established pursuant to Section 301) in accordance with this Article.
SECTION 1302. Repayment of Securities
-----------------------
Securities of any series subject to repayment in whole or in part
at the option of the Holders thereof will, unless otherwise provided in the
terms of such Securities, be repaid at the Repayment Price thereof, together
with interest, if any, thereon accrued to the Repayment Date specified in or
pursuant to the terms of such Securities. The Company covenants that on or
before the Repayment Date it will deposit with the Trustee or with a Paying
Agent (or, if the Company or any Subsidiary or any Affiliate of any of them is
acting as Paying Agent, segregate and hold in trust as provided in Section 1003)
an amount of money in the Currency in which the Securities of such series are
payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Subsections
312(b), 312(d) and 312(e)) sufficient to pay the Repayment Price of, and (unless
otherwise specified pursuant to Section 301) accrued interest on, all the
Securities or portions thereof, as the case may be, to be repaid on such date.
SECTION 1303. Exercise of Option
------------------
Securities of any series subject to repayment at the option of
the Holders thereof will contain an "Option to Elect Repayment" form on the
reverse of such Securities. To be repaid at the option of the Holder, any
Security so providing for such repayment, with the "Option to Elect Repayment"
form on the reverse of such Security duly completed by the Holder (or by the
Holder's attorney duly authorized in writing), must be received by the Company
at the Place of Payment therefor specified in the terms of such Security (or at
such other place or places of which the Company shall from time to time notify
the Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire Repayment Price of such
Security is to be repaid in accordance with the terms of such Security, the
portion of the Repayment Price of such Security to be repaid, in increments of
the minimum denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of such Security surrendered that is not to be repaid, must be
specified. Any Security providing for repayment at the option of the Holder
77
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.
SECTION 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable
-------
(a) If Securities of any series providing for repayment at the
option of the Holders thereof shall have been surrendered as provided in this
Article and as provided by or pursuant to the terms of such Securities, such
Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repayment Date
therein specified, and on and after such Repayment Date (unless the Company
shall default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the Repayment Price of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, that, coupons whose Stated Maturity is on or prior to the Repayment
Date shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise
specified pursuant to Section 301, only upon presentation and surrender of such
coupons; and provided further that installments of interest on Registered
Securities, whose Stated Maturity is prior to (or, if specified pursuant to
Section 301, on) the Repayment Date shall be payable (but without interest
thereon, unless the Company shall default in the payment thereof) to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
(b) If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, that, interest represented by
coupons shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and surrender
of those coupons.
(c) If any Security surrendered for repayment shall not be so
repaid upon surrender thereof, the Repayment Price shall, until paid, bear
interest from the Repayment Date at the rate of interest set forth in such
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Security or, in the case of an Original Issue Discount Security, at the Yield to
Maturity of such Security.
SECTION 1305. Securities Repaid in Part
-------------------------
Upon surrender of any Registered Security which is to be repaid
in part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
SECTION 1401. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance
---------------------------------
If pursuant to Section 301 provision is made for either or both
of (a) defeasance of the Securities of or within a series under Section 1402 or
(b) covenant defeasance of the Securities of or within a series under Section
1403, then the provisions of such Section or Sections, as the case may be,
together with the other provisions of this Article (with such modifications
thereto as may be specified pursuant to Section 301 with respect to any
Securities), shall be applicable to such Securities and any coupons appertaining
thereto, and the Company may at its option by Board Resolution, at any time,
with respect to such Securities and any coupons appertaining thereto, elect to
have Section 1402 (if applicable) or Section 1403 (if applicable) be applied to
such Outstanding Securities and any coupons appertaining thereto upon compliance
with the conditions set forth below in this Article.
SECTION 1402. Defeasance and Discharge
------------------------
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall each be deemed to have been discharged from its obligations with respect
to such Outstanding Securities and any coupons appertaining thereto on the date
the conditions set forth in Section 1404 are satisfied (hereinafter,
"defeasance"). For this purpose, such defeasance means that the Company shall be
deemed to have paid and discharged the entire indebtedness represented by such
Outstanding Securities and any coupons appertaining thereto, which shall
thereafter be deemed to be "Outstanding" only for the purposes of Section 1405
and the other Sections of this Indenture referred to in clauses (a) and (b) of
this Section 1402, and to have satisfied all its other obligations under such
Securities and any coupons appertaining thereto and this Indenture insofar as
such Securities and any coupons appertaining thereto are concerned (and the
Trustee, at the expense of the Company, shall execute proper instruments
acknowledging the same), except for the following which shall survive until
otherwise terminated or discharged hereunder:
(a) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
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Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto when such payments are due,
(b) the obligations of the Company with respect to such
Securities under Sections 304, 305, 306, 1002 and 1003 and with respect to the
payment of Additional Amounts, if any, on such Securities as contemplated by
Section 1005 with respect to the rights, if any, of the holders of such
Securities to require the Company to repay such Securities as contemplated by
Article Thirteen and with respect to the rights, if any, of holders to convert
or exchange such Securities into other Securities,
(c) the rights, powers, trusts, duties and immunities of the
Trustee hereunder and
(d) this Article Fourteen. Subject to compliance with this
Article Fourteen, the Company may exercise its option under this Section 1402
notwithstanding the prior exercise of its option under Section 1403 with respect
to such Securities and any coupons appertaining thereto.
SECTION 1403. Covenant Defeasance
-------------------
Upon the Company's exercise of the above option applicable to
this Section with respect to any Securities of or within a series, the Company
shall each be released from its obligations under any other covenant specified
pursuant to Section 301, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter be deemed to
not be "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with [any restrictive covenants that may be inserted], or such other
covenant, but shall continue to be deemed "Outstanding" for all other purposes
hereunder. For this purpose, such covenant defeasance means that, with respect
to such Outstanding Securities and any coupons appertaining thereto, the Company
may omit to comply with and shall have no liability in respect of any term,
condition or limitation set forth in any such Section or such other covenant,
whether directly or indirectly, by reason of any reference elsewhere herein to
any such Section or such other covenant or by reason of reference in any such
Section or such other covenant to any other provision herein or in any other
document and such omission to comply shall not constitute a Default or an Event
of Default under clauses (4) or (7) of Subsection 501(a) or otherwise except as
specified in accordance with Section 301, as the case may be, but, except as
specified above, the remainder of this Indenture and such Securities and any
coupons appertaining thereto shall be unaffected thereby.
SECTION 1404. Conditions to Defeasance or Covenant Defeasance
-----------------------------------------------
The following shall be the conditions to application of Section
1402 or Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
80
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount (in such Currency in which such Securities and any
coupons appertaining thereto are then specified as payable at Stated Maturity),
or (2) Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the Currency in which such
Securities and coupons appertaining thereto are then specified as payable at
Stated Maturity) which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium, if any)
and interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof in an amount, sufficient, in
the opinion of a nationally recognized firm of independent public accountants or
nationally recognized independent investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest, if any, on
such Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Default or Event of Default with respect to such
Securities and any coupons appertaining thereto shall have occurred and be
continuing on the date of such deposit or, insofar as clauses (5) and (6) of
Subsection 501(a) are concerned, at any time during the period ending on the
91st day after the date of such deposit (it being understood that this condition
shall not be deemed satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company
shall have delivered to the Trustee an Opinion of Counsel stating that (1) the
Company has received from, or there has been published by, the Internal Revenue
Service a ruling, or (2) since the date of execution of this Indenture, there
has been a change in the applicable Federal income tax law, in either case to
the effect that, and based thereon such opinion shall confirm that, the Holders
of such Outstanding Securities and any coupons appertaining thereto will not
recognize income, gain or loss for Federal income tax purposes as a result of
such defeasance and will be subject to Federal income tax on the same amounts,
in the same manner and at the same times as would have been the case if such
defeasance had not occurred.
(e) In the case of an election under Section 1403, the Company
shall have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
81
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (1) as a result of a deposit pursuant to
subsection (a) above and the related exercise of the Company's option under
Section 1402 or Section 1403 (as the case may be), registration is not required
under the Investment Company Act of 1940, as amended, by the Company, with
respect to the trust funds representing such deposit or by the trustee for such
trust funds or (2) all necessary registrations under said Act have been
effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
SECTION 1405. Deposited Money and Government Obligations to Be Held in
--------------------------------------------------------
Trust; Other Miscellaneous Provisions
-------------------------------------
(a) Subject to the provisions of Subsection 1003(d), all money
and Government Obligations (or other property as may be provided pursuant to
Section 301) (including the proceeds thereof) deposited with the Trustee (or
other qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of any Outstanding Securities of
any series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest, if any, but such
money need not be segregated from other funds except to the extent required by
law.
(b) Unless otherwise specified with respect to any Security
pursuant to Section 301, if, after a deposit referred to in Subsection 1404(a)
has been made, (1) the Holder of a Security in respect of which such deposit was
made is entitled to, and does, elect pursuant to Subsection 312(b) or the terms
of such Security to receive payment in a Currency other than that in which the
deposit pursuant to Subsection 1404(a) has been made in respect of such
Security, or (2) a Conversion Event occurs as contemplated in Subsection 312(d)
or 312(e) or by the terms of any Security in respect of which the deposit
pursuant to Subsection 1404(a) has been made, the indebtedness represented by
such Security and any coupons appertaining thereto shall be deemed to have been,
and will be, fully discharged and satisfied through the payment of the principal
of (and premium, if any) and interest, if any, on such Security as the same
becomes due out of the proceeds yielded by converting (from time to time as
specified below in the case of any such election) the amount or other property
deposited in respect of such Security into the Currency in which such Security
becomes payable as a result of such election or Conversion Event based on the
applicable Market Exchange Rate for such Currency in effect on the second
Business Day prior to each payment date, except, with respect to a Conversion
Event, for such Currency in effect (as nearly as feasible) at the time of the
Conversion Event.
82
(c) The Company shall pay and indemnify the Trustee against any
tax, fee or other charge imposed on or assessed against the Government
Obligations deposited pursuant to Section 1404 or the principal and interest
received in respect thereof other than any such tax, fee or other charge which
by law is for the account of the Holders of such Outstanding Securities and any
coupons appertaining thereto.
(d) Anything in this Article Fourteen to the contrary
notwithstanding, the Trustee shall deliver or pay to the Company from time to
time upon Company Request any money or Government Obligations (or other property
and any proceeds therefrom) held by it as provided in Section 1404 which, in the
opinion of a nationally recognized firm of independent public accountants
expressed in a written certification thereof delivered to the Trustee, are in
excess of the amount thereof which would then be required to be deposited to
effect a defeasance or covenant defeasance, as applicable, in accordance with
this Article.
SECTION 1406. Reinstatement
-------------
If the Trustee or any Paying Agent is unable to apply any money
in accordance with Section 1405 by reason of any order or judgment of any court
or governmental authority enjoining, restraining or otherwise prohibiting such
application, then the Company's obligations under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, that if the Company makes any payment of
principal of (or premium, if any) or interest, if any, on any such Security or
any related coupon following the reinstatement of its obligations, the Company
shall be subrogated to the rights of the Holders of such Securities and any
related coupons to receive such payment from the money held by the Trustee or
Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
SECTION 1501. Purposes for Which Meetings May Be Called
-----------------------------------------
If Securities of a series are issuable as Bearer Securities, a
meeting of Holders of Securities of such series may be called at any time and
from time to time pursuant to this Article to make, give or take any request,
demand, authorization, direction, notice, consent, waiver or other action
provided by this Indenture to be made, given or taken by Holders of Securities
of such series.
SECTION 1502. Call, Notice and Place of Meetings
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the Borough of Manhattan, The City of New York
or in London as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
83
shall be given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board
Resolution, or the Holders of at least 10% in principal amount of the
Outstanding Securities of any series shall have requested the Trustee to call a
meeting of the Holders of Securities of such series for any purpose specified in
Section 1501, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the trustee shall not have made the
first publication of the notice of such meeting within 21 days after receipt of
such request or shall not thereafter proceed to cause the meeting to be held as
provided herein, then the Company or the Holders of Securities of such series in
the amount above specified, as the case may be, may determine the time and the
place in the Borough of Manhattan, The City of New York or in London for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in Subsection (a) of this Section.
SECTION 1503. Persons Entitled to Vote at Meetings
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of
any series, a Person shall be (a) a Holder of one or more Outstanding Securities
of such series, or (b) a Person appointed by an instrument in writing as proxy
for a Holder or Holders of one or more Outstanding Securities of such series by
such Holder or Holders. The only Persons who shall be entitled to be present or
to speak at any meeting of Holders of Securities of any series shall be the
Persons entitled to vote at such meeting and their counsel, any representatives
of the Trustee and its counsel and any representatives of the Company and its
counsel.
SECTION 1504. Quorum; Action
--------------
(a) The Persons entitled to vote a majority in principal amount
of the Outstanding Securities of a series shall constitute a quorum for a
meeting of Holders of Securities of such series; provided, that if any action is
to be taken at such meeting with respect to a consent or waiver which this
Indenture expressly provides may be given by the Holders of not less than a
specified percentage in principal amount of the Outstanding Securities of a
series, the Persons entitled to vote such specified percentage in principal
amount of the Outstanding Securities of such series shall constitute a quorum.
In the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Securities
of such series, be dissolved. In any other case the meeting may be adjourned for
a period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Subsection 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
84
(b) Subject to the foregoing, at the reconvening of any meeting
adjourned for lack of a quorum the Persons entitled to vote 25% in principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
(c) Except as limited by the proviso to Section 902, any
resolution presented to a meeting or adjourned meeting duly reconvened at which
a quorum is present as aforesaid may be adopted by the affirmative vote of the
Holders of not less than a majority in principal amount of the Outstanding
Securities of that series; provided, that except as limited by the proviso to
Section 902, any resolution with respect to any request, demand, authorization,
direction, notice, consent, waiver or other action which this Indenture
expressly provides may be made, given or taken by the Holders of a specified
percentage, which is less than a majority, in principal amount of the
Outstanding Securities of a series may be adopted at a meeting or an adjourned
meeting duly reconvened and at which a quorum is present as aforesaid by the
affirmative vote of the Holders of not less than such specified percentage in
principal amount of the Outstanding Securities of that series.
(d) Any resolution passed or decision taken at any meeting of
Holders of Securities of any series duly held in accordance with this Section
shall be binding on all the Holders of Securities of such series and the related
coupons, whether or not present or represented at the meeting.
(e) Notwithstanding the foregoing provisions of this Section
1504, if any action is to be taken at a meeting of Holders of Securities of any
series with respect to any request, demand, authorization, direction, notice,
consent, waiver or other action that this Indenture expressly provides may be
made, given or taken by the Holders of a specified percentage in principal
amount of all Outstanding Securities affected thereby, or of the Holders of such
series and one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting; and
(2) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand,
authorization, direction, notice, consent, waiver or other action
shall be taken into account in determining whether such request,
demand, authorization, direction, notice, consent, waiver or
other action has been made, given or taken under this Indenture.
SECTION 1505. Determination of Voting Rights; Conduct and Adjournment
-------------------------------------------------------
of Meetings
-----------
(a) Notwithstanding any provisions of this Indenture, the Company
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
85
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Company shall, by an instrument in writing appoint a
temporary chairman of the meeting, unless the meeting shall have been called by
Holders of Securities as provided in Section 1502(b), in which case the Holders
of Securities of the series calling the meeting shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
(c) At any meeting each Holder of a Security of such series or
proxy shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
that, no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly
called pursuant to Section 1502 at which a quorum is present may be adjourned
from time to time by Persons entitled to vote a majority in principal amount of
the Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
SECTION 1506. Counting Votes and Recording Action of Meetings
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders
of Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Subsection 1502(a) and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the former to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
86
This Indenture may be executed in any number of counterparts,
each of which so executed shall be deemed to be an original, but all such
counterparts shall together constitute but one and the same Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture
to be duly executed, and their respective corporate seals to be hereunto affixed
[and attested], all as of the day and year first above written.
CLEARONE COMMUNICATIONS, INC.
By
----------------------------------
Name:
Title:
THE BANK OF NEW YORK
as Trustee
By
----------------------------------
Name:
Title:
87
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate the income of which
is subject to United States federal income taxation regardless of its source or
a trust whose administration is subject to the primary supervision of a United
States court and which has one or more United States persons who have the
authority to control all of its decisions ("United States person(s)"), (ii) are
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale, or (b)
United States person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise ClearOne Communications, Inc.
or its agent that such financial institution will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior
to the date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date.
This certificate excepts and does not relate to [U.S.$]
______________ of such interest in the above-captioned Securities in respect of
which we are not able to certify and as to which we understand an exchange for
an interest in a Permanent Global Security or an exchange for and delivery of
definitive Securities (or, if relevant, collection of any interest) cannot be
made until we do so certify.
A-1-2
We understand that this certificate may be required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ___________
[To be dated no earlier than the
15th day prior to (i) the Exchange
Date or (ii) the relevant Interest
Payment Date occurring prior to
the Exchange Date, as applicable]
[Name of Person Making Certification]
(Authorized Signatory)
Name:
Title:
A-1-3
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM BANKING SOCIETE ANONYME IN CONNECTION WITH THE EXCHANGE OF
A PORTION OF A TEMPORARY GLOBAL SECURITY
OR TO OBTAIN INTEREST PAYABLE PRIOR
TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications
that we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S.$]
__________________ principal amount of the above-captioned Securities (i) is
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate the income of which
is subject to United States Federal income taxation regardless of its source or
a trust whose administration is subject to the primary supervision of a United
States court and which has one or more United States persons who have the
authority to control all of its decisions ("United States person(s)"), (ii) is
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in U.S. Treasury
Regulations Section 1.165-12(c)(1)(v) are herein referred to as "financial
institutions") purchasing for their own account or for resale, or (b) United
States person(s) who acquired the Securities through foreign branches of United
States financial institutions and who hold the Securities through such United
States financial institutions on the date hereof (and in either case (a) or (b),
each such financial institution has agreed, on its own behalf or through its
agent, that we may advise ClearOne Communications, Inc. or its agent that such
financial institution will comply with the requirements of Section 165(j)(3)(A),
(B) or (C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of
America (including the states and the District of Columbia); and its
"possessions" include Puerto Rico, the U.S. Virgin Islands, Guam, American
Samoa, Wake Island and the Northern Mariana Islands.
We further certify that (i) we are not making available herewith
for exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection
with certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ____________
[To be dated no earlier than
the Exchange Date or the
relevant Interest Payment
Date occurring prior to the
Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New
York, Brussels Office,] as Operator
of the Euroclear System
[Clearstream Banking societe anonyme]
By
--------------------------------
A-2-2
Exhibit 4.2
================================================================================
CLEARONE COMMUNICATIONS, INC.,
as Issuer
and
THE BANK OF NEW YORK,
as Trustee
Indenture
Dated as of , 2002
Providing for the Issuance
of
Subordinated Debt Securities
================================================================================
CLEARONE COMMUNICATIONS, INC.
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of , 200
---------- ---- --
Trust Indenture Act Section Indenture Section
- ---------------------------------------------------- ------------------
Section 310(a)(1)................................... 607
(a)(2)................................... 607
(b)...................................... 608
Section 312(c) ..................................... 701
Section 314(a) ..................................... 703
(a)(4)................................... 1005
(c)(1)................................... 102
(c)(2)................................... 102
(e)...................................... 102
Section 315(b) ..................................... 601
Section 316(a) (last sentence)...................... 101 ("Outstanding")
(a)(1)(A)................................ 502, 512
(a)(1)(B)................................ 513
(b)...................................... 508
Section 317(a)(1)................................... 503
(a)(2)................................... 504
Section 318(a) ..................................... 111
(c)...................................... 111
- ---------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
TABLE OF CONTENTS
Page
----
Article One
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions......................................................1
Section 102. Compliance Certificates and Opinions............................12
Section 103. Form of Documents Delivered to Trustee..........................12
Section 104. Acts of Holders.................................................13
Section 105. Notices, Etc., to Trustee and Company...........................15
Section 106. Notice to Holders; Waiver.......................................15
Section 107. Effect of Headings and Table of Contents........................16
Section 108. Successors and Assigns..........................................16
Section 109. Separability Clause.............................................16
Section 110. Benefits of Indenture...........................................17
Section 111. Governing Law...................................................17
Section 112. Legal Holidays..................................................17
Section 113. Conflict of Any Provision of Indenture with Trust
Indenture Act.................................................17
Section 114. No Recourse against Others......................................17
Section 115. Waiver of Trial by Jury.........................................18
Article Two
SECURITIES FORMS
Section 201. Forms of Securities.............................................18
Section 202. Form of Trustee's Certificate of Authentication.................18
Section 203. Securities Issuable in Global Form..............................19
Section 204. Form of Legend for Book-Entry Securities........................20
Article Three
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series............................20
Section 302. Denominations...................................................25
Section 303. Execution, Authentication, Delivery and Dating..................25
Section 304. Temporary Securities............................................28
Section 305. Registration, Registration of Transfer and Exchange.............30
Section 306. Mutilated, Destroyed, Lost and Stolen Securities................34
Section 307. Payment of Interest; Interest Rights Preserved;
Optional Interest Reset.......................................35
Section 308. Optional Extension of Maturity..................................38
Section 309. Persons Deemed Owners...........................................39
Section 310. Cancellation....................................................40
Section 311. Computation of Interest.........................................40
Section 312. Currency and Manner of Payments in Respect
of Securities.................................................40
i
Section 313. Appointment and Resignation of Successor Exchange
Rate Agent....................................................44
Section 314. CUSIP Numbers...................................................45
Article Four
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.........................45
Section 402. Application of Trust Funds......................................47
Article Five
REMEDIES
Section 501. Events of Default...............................................47
Section 502. Acceleration of Maturity; Rescission and Annulment..............48
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee....................................................49
Section 504. Trustee May File Proofs of Claim................................50
Section 505. Trustee May Enforce Claims Without Possession of
Securities or Coupons.........................................51
Section 506. Application of Money Collected..................................51
Section 507. Limitation on Suits.............................................52
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and Additional Amounts, if Any...........52
Section 509. Restoration of Rights and Remedies..............................53
Section 510. Rights and Remedies Cumulative..................................53
Section 511. Delay or Omission Not Waiver....................................53
Section 512. Control by Holders of Securities................................53
Section 513. Undertaking for Costs...........................................54
Section 514. Waiver of Past Defaults.........................................54
Section 515. Waiver of Usury, Stay or Extension Laws.........................54
Article Six
THE TRUSTEE
Section 601. Notice of Defaults..............................................55
Section 602. Certain Rights of Trustee.......................................55
Section 603. Not Responsible for Recitals or Issuance of Securities..........57
Section 604. May Hold Securities.............................................57
Section 605. Money Held in Trust.............................................58
Section 606. Compensation and Reimbursement..................................58
Section 607. Corporate Trustee Required; Eligibility.........................59
Section 608. Resignation and Removal; Appointment of Successor...............59
Section 609. Acceptance of Appointment by Successor..........................60
Section 610. Merger, Conversion, Consolidation or Succession to Business.....62
Section 611. Appointment of Authenticating Agent.............................62
Section 612. Conflicting Interests...........................................64
Section 613. Appointment of Co-Trustee.......................................64
Section 614. Trustee's Application for Instructions from the Company.........65
ii
Article Seven
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders....................65
Section 702. Reports by Trustee..............................................66
Section 703. Reports by Company..............................................67
Section 704. Calculation of Original Issue Discount..........................68
Article Eight
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc., Only on Certain Terms............68
Section 802. Successor Person Substituted....................................68
Section 803. Officers' Certificate and Opinion of Counsel....................69
Article Nine
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders..............69
Section 902. Supplemental Indentures with Consent of Holders.................71
Section 903. Execution of Supplemental Indentures............................73
Section 904. Effect of Supplemental Indentures...............................73
Section 905. Conformity with Trust Indenture Act.............................73
Section 906. Reference in Securities to Supplemental Indentures..............73
Section 907. Effect on Senior Indebtedness...................................73
Article Ten
COVENANTS
Section 1001. Payment of Principal, Premium, if any, and Interest.............73
Section 1002. Maintenance of Office or Agency.................................74
Section 1003. Money for Securities Payments to be Held in Trust...............76
Section 1004. Corporate Existence.............................................77
Section 1005. Additional Amounts..............................................77
Section 1006. Statement as to Compliance......................................78
Section 1007. Waiver of Certain Covenants.....................................78
Section 1008. Statement by Officers as to Default.............................79
Article Eleven
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article........................................79
Section 1102. Election to Redeem; Notice to Trustee...........................79
Section 1103. Selection by Trustee of Securities to be Redeemed...............79
Section 1104. Notice of Redemption............................................80
Section 1105. Deposit of Redemption Price.....................................81
Section 1106. Securities Payable on Redemption Date...........................81
Section 1107. Securities Redeemed in Part.....................................82
iii
Article Twelve
SINKING FUNDS
Section 1201. Applicability of Article........................................83
Section 1202. Satisfaction of Sinking Fund Payments with Securities...........83
Section 1203. Redemption of Securities for Sinking Fund.......................83
Article Thirteen
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article........................................84
Section 1302. Repayment of Securities.........................................84
Section 1303. Exercise of Option..............................................84
Section 1304. When Securities Presented for Repayment Become Due
and Payable...................................................85
Section 1305. Securities Repaid in Part.......................................86
Article Fourteen
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of Article; Company's Option to Effect
Defeasance or Covenant Defeasance.............................86
Section 1402. Defeasance and Discharge........................................86
Section 1403. Covenant Defeasance.............................................87
Section 1404. Conditions to Defeasance or Covenant Defeasance.................88
Section 1405. Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions.................89
Section 1406. Reinstatement...................................................90
Article Fifteen
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.......................91
Section 1502. Call, Notice and Place of Meetings..............................91
Section 1503. Persons Entitled to Vote at Meetings............................91
Section 1504. Quorum; Action..................................................92
Section 1505. Determination of Voting Rights; Conduct and Adjournment
of Meetings...................................................93
Section 1506. Counting Votes and Recording Action of Meetings.................94
Article Sixteen
SUBORDINATION OF SECURITIES
Section 1601. Agreement to Subordinate........................................94
Section 1602. Distribution on Dissolution, Liquidation and
Reorganization; Subrogation of Securities.....................95
Section 1603. No Payment on Securities in Certain Circumstances...............96
Section 1604. Payments on Securities Permitted................................98
Section 1605. Authorization of Holders to Trustee to Effect Subordination.....98
iv
Section 1606. Notices to Trustee..............................................99
Section 1607. Trustee as Holder of Senior Indebtedness........................99
Section 1608. Modifications of Terms of Senior Indebtedness..................100
Section 1609. Reliance on Judicial Order or Certificate of Liquidating
Agent........................................................100
EXHIBIT A - FORMS OF CERTIFICATES
v
INDENTURE, dated as of _______, 2002, between CLEARONE COMMUNICATIONS,
INC., a Utah corporation (hereinafter called the "Company"), having its
principal office at 1825 Research Way, Salt Lake City, Utah 84119, and THE BANK
OF NEW YORK, a New York banking corporation, as Trustee (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company deems it necessary to issue from time to time for
its lawful purposes subordinated debt securities (hereinafter called the
"Securities") evidencing its unsecured and subordinated indebtedness, which may
or may not be convertible into or exchangeable for any securities of any Person
(including the Company), and has duly authorized the execution and delivery of
this Indenture to provide for the issuance from time to time of the Securities,
to be issued in one or more series, unlimited as to principal amount, to bear
such rates of interest, to mature at such times and to have such other
provisions as provided in this Indenture;
WHEREAS, this Indenture is subject to the provisions of the Trust
Indenture Act of 1939, as amended, that are required to be part of this
Indenture and shall, to the extent applicable, be governed by such provisions;
and
WHEREAS, all things necessary to make this Indenture a valid and
legally binding agreement of the Company, in accordance with its terms, have
been done;
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities and coupons, or
of a series thereof, as follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 101. Definitions.
-----------
(a) For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires or unless such definition is
changed or amended in a supplement or amendment to this Indenture:
(1) the terms defined in this Article have the meanings
assigned to them in this Article, and include the plural as well as
the singular;
(2) all other terms used herein which are defined in the
TIA, either directly or by reference therein, have the meanings
assigned to them therein, and the terms "cash transaction" and
"self-liquidating paper", as used in TIA Section 311, shall have the
meanings assigned to them in the rules of the Commission adopted under
the TIA;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean
such accounting principles as are generally accepted in the United
States at the date of such computation; and
(4) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
(b) Certain terms, used principally in Article Three, Article Five and
Article Six, are defined in those Articles.
(c) Other terms are defined as follows:
"Act", when used with respect to any Holder, has the meaning specified
in Section 104.
"Additional Amounts" means any additional amounts which are required
by a Security or by or pursuant to a Board Resolution, under circumstances
specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Authenticating Agent" means any Person appointed by the Trustee to
act on behalf of the Trustee pursuant to Section 611 to authenticate Securities.
"Authorized Newspaper" means a newspaper, in the English language or
in an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in each place in connection with which the term is
used or in the financial community of each such place. Where successive
publications are required to be made in Authorized Newspapers, the successive
publications may be made in the same or in different newspapers in the same city
meeting the foregoing requirements and in each case on any Business Day.
"Bearer Security" means any Security established pursuant to Section
201 which is payable to bearer or that is otherwise not a Registered Security.
2
"Board of Directors" means the board of directors of the Company, or
the executive committee or any committee of that board duly authorized to act
hereunder.
"Board Resolution" means a copy of a resolution certified by the
Secretary or an Assistant Secretary or any Vice President of the Company to have
been duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day", when used with respect to any Place of Payment or any
other particular location referred to in this Indenture or in the Securities,
means, unless otherwise specified with respect to any Securities pursuant to
Section 301, each Monday, Tuesday, Wednesday, Thursday and Friday which is not a
day on which banking institutions in that Place of Payment or other location are
authorized or obligated by law or executive order to close.
"Clearstream" means Clearstream Banking societe anonyme or its
successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after execution of this Indenture such Commission is not existing and performing
the duties now assigned to it under the TIA, then the body performing such
duties at such time.
"Common Depositary" has the meaning specified in Section 304.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor corporation shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter,
"Company" shall mean such successor corporation.
"Company Request" and "Company Order" mean, respectively, a written
request or order signed in the name of the Company by the Chairman, the
President, the Chief Executive Officer, the Chief Financial Officer or a Vice
President, and by the Treasurer, an Assistant Treasurer, the Controller or an
Assistant Controller, the Secretary or an Assistant Secretary, of the Company,
and delivered to the Trustee.
"Conversion Date" has the meaning specified in Subsection 312(d).
"Conversion Event" means the cessation of use of (1) a Foreign
Currency both by the government of the country which issued such Currency and by
a central bank or other public institutions of or within the international
banking community for the settlement of transactions, (2) the euro for the
settlement of transactions by public institutions of or within the European
Communities or (3) any currency unit (or composite currency) other than the euro
for the purposes for which such currency unit was established.
3
"Corporate Trust Office" means the office of the Trustee at which, at
any particular time, its corporate trust business shall be principally
administered, which office at the date hereof is located at 101 Barclay Street,
New York, New York 10286.
"Corporation" includes corporations, associations, limited liability
companies, companies and business trusts.
"Coupon" means any interest coupon appertaining to a Bearer Security.
"Currency" means any currency or currencies, composite currency or
currency unit or currency units, including, without limitation, the euro issued
by the government of one or more countries or by any reorganized confederation
or association of such governments.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 307(a).
"Depository Participant" means, with respect to the Depositary Trust
Company (the "Depository") or its nominee, an institution that has an account
therewith.
"Dollar" or "$" means a dollar or other equivalent unit in such coin
or currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Dollar Equivalent of the Currency Unit" has the meaning specified in
Section 312(g).
"Dollar Equivalent of the Foreign Currency" has the meaning specified
in Section 312(f).
"Election Date" has the meaning specified in Subsection 312(h).
"Euroclear" means Morgan Guaranty Trust Company of New York, Brussels
Office, or its successor as operator of the Euroclear System.
"European Communities" means the European Union, the European Coal and
Steel Community and the European Atomic Energy Community.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Exchange Date" has the meaning specified in Section 304.
"Exchange Rate Agent" means, with respect to Securities of or within
any series, unless otherwise specified with respect to any Securities pursuant
to Section 301, a New York Clearing House bank designated pursuant to Section
301 or Section 313.
4
"Exchange Rate Officer's Certificate" means a certificate setting
forth (1) the applicable Market Exchange Rate or the applicable bid quotation
and (2) the Dollar or Foreign Currency amounts of principal (and premium, if
any) and interest, if any (on an aggregate basis and on the basis of a Security
having the lowest denomination principal amount determined in accordance with
Section 302 in the relevant Currency), payable with respect to a Security of any
series on the basis of such Market Exchange Rate signed by the Chief Financial
Officer, the Treasurer, the Controller, any Vice President or any Assistant
Treasurer or Assistant Controller of the Company.
"Foreign Currency" means any Currency, including, without limitation,
the euro, issued by the government of one or more countries other than the
United States of America or by any recognized confederation or association of
such governments.
"Government Obligations" means, unless otherwise specified with
respect to any series of Securities pursuant to Section 301, securities which
are:
(1) direct obligations of the government which issued the
Currency in which the Securities of a particular series are payable,
or
(2) obligations of a Person controlled or supervised by and
acting as an agency or instrumentality of such government which issued
the Currency in which the Securities of such series are payable, the
payment of which is unconditionally guaranteed by such government,
which, in either case, are full faith and credit obligations of such government
payable in such Currency and are not callable or redeemable at the option of the
issuer thereof, and shall also include a depository receipt issued by a bank or
trust company as custodian with respect to any such Government Obligation or a
specific payment of interest on or principal of any such Government Obligation
held by such custodian for the account of the holder of a depository receipt;
provided that (except as required by law) such custodian is not authorized to
make any deduction from the amount payable to the holder of such depository
receipt from any amount received by the custodian in respect of the Government
Obligation or the specific payment of interest on or principal of the Government
Obligation evidenced by such depository receipt.
"Holder" means, in the case of a Registered Security, the Person in
whose name a Security is registered in the Security Register and, in the case of
a Bearer Security, the bearer thereof and, when used with respect to any coupon,
shall mean the bearer thereof.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
and shall include the terms of particular series of Securities established as
contemplated by Section 301; provided, that, if at any time more than one Person
is acting as Trustee under this instrument, "Indenture" shall mean, with respect
to any one or more series of Securities for which such Person is Trustee, this
instrument as originally executed or as it may from time to time be supplemented
5
or amended by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof and shall include the terms of the or those
particular series of Securities for which such Person is Trustee established as
contemplated by Section 301, exclusive, however, of any provisions or terms
which relate solely to other series of Securities for which such Person is not
Trustee, regardless of when such terms or provisions were adopted, and exclusive
of any provisions or terms adopted by means of one or more indentures
supplemental hereto executed and delivered after such Person had become such
Trustee but to which such Person, as such Trustee, was not a party.
"Indexed Security" means a Security as to which all or certain
interest payments and/or the principal amount payable at Maturity are determined
by reference to prices, changes in prices, or differences between prices, of
securities, Currencies, intangibles, goods, articles or commodities or by such
other objective price, economic or other measures as are specified in Section
301 hereof.
"Interest", when used with respect to an Original Issue Discount
Security which by its terms bears interest only after Maturity, shall mean
interest payable after Maturity, and, when used with respect to a Security which
provides for the payment of Additional Amounts pursuant to Section 1005 or
otherwise, includes such Additional Amounts.
"Interest Payment Date", when used with respect to any Security, means
the Stated Maturity of an installment of interest on such Security.
"Market Exchange Rate" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, (1) for any conversion involving a
currency unit on the one hand and Dollars or any Foreign Currency on the other,
the exchange rate between the relevant currency unit and Dollars or such Foreign
Currency calculated by the method specified pursuant to Section 301 for the
Securities of the relevant series, (2) for any conversion of Dollars into any
Foreign Currency, the noon (New York City time) buying rate for such Foreign
Currency for cable transfers quoted in New York City as certified for customs
purposes by the Federal Reserve Bank of New York and (3) for any conversion of
one Foreign Currency into Dollars or another Foreign Currency, the spot rate at
noon local time in the relevant market at which, in accordance with normal
banking procedures, the Dollars or Foreign Currency into which conversion is
being made could be purchased with the Foreign Currency from which conversion is
being made from major banks located in either New York City, London or any other
principal market for Dollars or such purchased Foreign Currency, in each case
determined by the Exchange Rate Agent. Unless otherwise specified with respect
to any Securities pursuant to Section 301, in the event of the unavailability of
any of the exchange rates provided for in clauses (1), (2) and (3) of this
definition, the Exchange Rate Agent shall use, in its sole discretion and
without liability on its part, such quotation of the Federal Reserve Bank of New
York as of the most recent available date, or quotations from one or more major
banks in New York City, London or another principal market for the Currency in
question, or such other quotations as the Exchange Rate Agent shall deem
appropriate. Unless otherwise specified by the Exchange Rate Agent, if there is
6
more than one market for dealing in any Currency by reason of foreign exchange
regulations or otherwise, the market to be used in respect of such Currency
shall be that upon which a non-resident issuer of securities designated in such
Currency would purchase such Currency in order to make payments in respect of
such securities.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security or an installment of principal becomes due
and payable as therein or herein provided, whether at the Stated Maturity or by
declaration of acceleration, notice of redemption, notice of option to elect
repayment, notice of exchange or conversion or otherwise.
"Officers' Certificate" means a certificate signed by the Chairman,
the President, the Chief Executive Officer, the Chief Financial Officer and by
the Treasurer, the Controller, an Assistant Treasurer, the Assistant Controller,
the Secretary or an Assistant Secretary of the Company and delivered to the
Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company or who may be an employee of or other counsel for the
Company.
"Original Issue Discount Security" means any Security which provides
for an amount less than the principal amount thereof to be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to Section 502.
"Outstanding", when used with respect to Securities or any series of
any Securities, means, as of the date of determination, all Securities or all
Securities of such series, as the case may be, theretofore authenticated and
delivered under this Indenture, except:
(1) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(2) Securities, or portions thereof, for whose payment or
redemption or repayment at the option of the Holder money in the
necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as Paying
Agent) for the Holders of such Securities and any coupons appertaining
thereto, provided that, if such Securities are to be redeemed, notice
of such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made;
(3) Securities, except to the extent provided in Sections
1402 and 1403, with respect to which the Company has effected
defeasance and/or covenant defeasance as provided in Article Fourteen;
and
(4) Securities which have been paid pursuant to Section 306
or in exchange for or in lieu of which other Securities have been
7
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by
a bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided that, in determining whether the Holders of the requisite principal
amount of the Outstanding Securities have given any request, demand,
authorization, direction, notice, consent or waiver hereunder or are present at
a meeting of Holders for quorum purposes, and for the purpose of making the
calculations required by TIA Section 313, (i) the principal amount of an
Original Issue Discount Security that may be counted in making such
determination or calculation and that shall be deemed to be Outstanding for such
purpose shall be equal to the amount of principal thereof that would be (or
shall have been declared to be) due and payable, at the time of such
determination, upon a declaration of acceleration of the Maturity thereof
pursuant to Section 502, (ii) the principal amount of any Security denominated
in a Foreign Currency that may be counted in making such determination or
calculation and that shall be deemed Outstanding for such purpose shall be equal
to the Dollar equivalent, determined as of the date such Security is originally
issued by the Company as set forth in an Exchange Rate Officer's Certificate
delivered to the Trustee, of the principal amount (or, in the case of an
Original Issue Discount Security or Indexed Security, the Dollar equivalent as
of such date of original issuance of the amount determined as provided in clause
(i) or clause (iii) of this definition, respectively) of such Security, (iii)
the principal amount of any Indexed Security that may be counted in making such
determination or calculation and that shall be deemed outstanding for such
purpose shall be equal to the principal face amount of such Indexed Security at
original issuance, unless otherwise provided with respect to such Security
pursuant to Section 301, and (iv) Securities owned by the Company or any other
obligor upon the Securities or any Affiliate of the Company or of such other
obligor shall be disregarded and deemed not to be Outstanding, except that, in
determining whether the Trustee shall be protected in making such calculation or
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned which
have been pledged in good faith may be regarded as Outstanding if the pledgee
establishes to the satisfaction of the Trustee the pledgee's right so to act
with respect to such Securities and that the pledgee is not the Company or any
other obligor upon the Securities or any Affiliate of the Company or of such
other obligor.
"Paying Agent" means any Person (including the Company acting as
Paying Agent) authorized by the Company to pay the principal of (or premium, if
any) or interest, if any, on any Securities or coupons on behalf of the Company.
"Person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof.
8
"Place of Payment" means, when used with respect to the Securities of
or within any series, the place or places where the principal of (and premium,
if any) and interest, if any, on such Securities are payable as specified and as
contemplated by Sections 301 and 1002.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 306 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security or a Security to which a
mutilated, destroyed, lost or stolen coupon appertains shall be deemed to
evidence the same debt as the mutilated, destroyed, lost or stolen Security or
the Security to which the mutilated, destroyed, lost or stolen coupon
appertains.
"Redeemable Capital Stock" means, with respect to any series of
Securities, any class or series of capital stock that, either by its terms of
any security into which it is convertible or exchangeable or by contract or
otherwise, is, or upon the happening of an event or passage of time would be, or
required to be redeemed prior to the Maturity of such series of Securities or is
redeemable at the option of the holder thereof at any time prior to the Maturity
of such series of Securities, or is convertible into or exchangeable for debt
securities at any time prior to such Maturity.
"Redemption Date", when used with respect to any Security to be
redeemed, in whole or in part, means the date fixed for such redemption by or
pursuant to this Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registered Security" means any Security that is registered in the
Security Register.
"Regular Record Date" for the interest payable on any Interest Payment
Date on the Registered Securities of or within any series means the date
specified for that purpose as contemplated by Section 301, whether or not a
Business Day.
"Repayment Date" means, when used with respect to any Security to be
repaid at the option of the Holder, the date fixed for such repayment by or
pursuant to this Indenture.
"Repayment Price" means, when used with respect to any Security to be
repaid at the option of the Holder, the price at which it is to be repaid by or
pursuant to this Indenture.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
9
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture.
"Security" or "Securities" has the meaning stated in the first recital
of this Indenture and, more particularly, means any Security or Securities
authenticated and delivered under this Indenture; provided, that, if at any time
there is more than one Person acting as Trustee under this Indenture,
"Securities" with respect to the Indenture as to which such Person is Trustee
shall have the meaning stated in the first recital of this Indenture and shall
more particularly mean Securities authenticated and delivered under this
Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of (and premium, if any) and
unpaid interest on (a) indebtedness of the Company (including indebtedness of
others guaranteed by the Company), whether outstanding on the date hereof or
thereafter created, incurred, assumed or guaranteed, for money borrowed, unless
in the instrument creating or evidencing the same or pursuant to which the same
is outstanding it is provided that such indebtedness is not senior or prior in
right of payment to the Securities, and (b) renewals, extensions, modifications
and refundings of any such indebtedness. Notwithstanding the foregoing, "Senior
Indebtedness" shall not include (1) indebtedness evidenced by the Securities
outstanding on the date hereof or thereafter created; (2) indebtedness of the
Company that is expressly subordinated in right of payment to any Senior
Indebtedness of the Company or the Securities; (3) indebtedness of the Company
that by operation of law is subordinate to any general unsecured obligations of
the Company; (4) indebtedness of the Company to the extent incurred in violation
of any covenant of this Indenture; (5) any liability for federal, state or local
taxes or other taxes, owed or owing by the Company; (6) indebtedness for goods,
materials or services purchased in the ordinary course of business or
indebtedness consisting of trade account payables or other current liabilities
(other than the current portion of long-term indebtedness which would constitute
Senior Indebtedness but for the operation of this clause (6)); (7) amounts owed
by the Company for compensation to employees or for services rendered to the
Company, (8) indebtedness of the Company to any Subsidiary or any other
Affiliate of the Company or any such Affiliate's Subsidiaries; (9) Redeemable
Capital Stock of the Company; (10) amounts owing under leases and (11)
indebtedness which when incurred and without any respect to any election under
Section 111(b) of Title 11 of the United States Code is without recourse to the
Company.
"Special Record Date" for the payment of any Defaulted Interest on the
Registered Securities of or within any series means a date fixed by the Trustee
pursuant to Section 307.
10
"Stated Maturity", when used with respect to any Security or any
installment of principal thereof or interest thereon, means the date specified
in such Security or a coupon representing such installment of interest as the
fixed date on which the principal of such Security or such installment of
principal or interest is due and payable, as such date may be extended pursuant
to the provisions of Section 308.
"Subsidiary" means any corporation of which at the time of
determination the Company, directly and/or indirectly through one or more
Subsidiaries, owns more than 50% of the shares of Voting Stock.
"Trust Indenture Act" or "TIA" means the Trust Indenture Act of 1939
as in force at the date as of which this Indenture was executed, except as
provided in Section 905.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean or include each Person who is then a Trustee hereunder;
provided, that if at any time there is more than one such Person, "Trustee" as
used with respect to the Securities of any series shall mean only the Trustee
with respect to Securities of that series.
"United States" means, unless otherwise specified with respect to any
Securities pursuant to Section 301, the United States of America (including the
states and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"United States Person" means, unless otherwise specified with respect
to any Securities pursuant to Section 301, an individual who is a citizen or
resident of the United States, a corporation, partnership or other entity
created or organized in or under the laws of the United States or an estate the
income of which is subject to United States federal income taxation regardless
of its source or a trust whose administration is subject to the primary
supervision of a United States court and which has one or more United States
persons who have the authority to control all of its decisions.
"Valuation Date" has the meaning specified in Subsection 312(c).
"Vice President" when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
"Voting Stock" means stock of the class or classes having general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of a corporation (irrespective of
whether or not at the time stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
"Yield to Maturity" means the yield to maturity, computed at the time
of issuance of a Security (or, if applicable, at the most recent redetermination
11
of interest on such Security) and as set forth in such Security in accordance
with generally accepted United States bond yield computation principles.
Section 102. Compliance Certificates and Opinions.
------------------------------------
(a) Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
(b) Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture (other than pursuant to
Section 1006) shall include:
(1) a statement that each individual signing such
certificate or opinion has read such condition or covenant and the
definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether
or not such condition or covenant has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 103. Form of Documents Delivered to Trustee.
--------------------------------------
(a) In any case where several matters are required to be certified by,
or covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion as to some matters and one or more
other such Persons as to other matters, and any such Person may certify or give
an opinion with respect to such matters in one or several documents.
(b) Any certificate or opinion of an officer of the Company may be
based, insofar as it relates to legal matters, upon an Opinion of Counsel, or a
certificate or representations by counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the opinion, certificate or
12
representations with respect to the matters upon which his certificate or
opinion is based are erroneous. Any such Opinion of Counsel or certificate or
representations may be based, insofar as it relates to factual matters, upon a
certificate or opinion of, or representations by, an officer or officers of the
Company stating that the information as to such factual matters is in the
possession of the Company unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
(c) Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 104. Acts of Holders.
---------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders of the Outstanding Securities of all series or one or more series, as
the case may be, may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed (which may be electronically signed) by such
Holders in person or by agents duly appointed in writing. If Securities of a
series are issuable as Bearer Securities, any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders of Securities of such series may, alternatively, be
embodied in and evidenced by the record of Holders of Securities of such series
voting in favor thereof, either in person or by proxies duly appointed in
writing, at any meeting of Holders of Securities of such series duly called and
held in accordance with the provisions of Article Fifteen, or a combination of
such instruments and any such record. Except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
or record or both are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments and any such record
(and the action embodied therein and evidenced thereby) are herein sometimes
referred to as the "Act" of the Holders signing such instrument or instruments
or so voting at any such meeting. Proof of execution of any such instrument or
of a writing appointing any such agent, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and conclusive
in favor of the Trustee and the Company and any agent of the Trustee or the
Company, if made in the manner provided in this Section. The record of any
meeting of Holders of Securities shall be proved in the manner provided in
Section 1506.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of authority. The fact and date of the execution of any such instrument or
13
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems reasonably sufficient.
(c) The principal amount and serial numbers of Registered Securities
held by any Person, and the date of holding the same, shall be proved by the
Security Register.
(d) The principal amount and serial numbers of Bearer Securities held
by any Person, and the date of holding the same, may be proved by the production
of such Bearer Securities or by a certificate executed, as depositary, by any
trust company, bank, banker or other depositary, wherever situated, if such
certificate shall be deemed by the Trustee to be satisfactory, showing that at
the date therein mentioned such Person had on deposit with such depositary, or
exhibited to it, the Bearer Securities therein described; or such facts may be
proved by the certificate or affidavit of the Person holding such Bearer
Securities, if such certificate or affidavit is deemed by the Trustee to be
satisfactory. The Trustee and the Company may assume that such ownership of any
Bearer Security continues until (1) another certificate or affidavit bearing a
later date issued in respect of the same Bearer Security is produced, or (2)
such Bearer Security is produced to the Trustee by some other Person, or (3)
such Bearer Security is surrendered in exchange for a Registered Security, or
(4) such Bearer Security is no longer Outstanding. The principal amount and
serial numbers of Bearer Securities held by any Person, and the date of holding
the same, may also be proved in any other manner that the Trustee deems
sufficient.
(e) If the Company shall solicit from the Holders of Registered
Securities any request, demand, authorization, direction, notice, consent,
waiver or other Act, the Company may, at its option, in or pursuant to a Board
Resolution, fix in advance a record date for the determination of Holders
entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall have no obligation to do so.
Notwithstanding TIA Section 316(c), such record date shall be the record date
specified in or pursuant to such Board Resolution, which shall be a date not
earlier than the date 30 days prior to the first solicitation of Holders
generally in connection therewith and not later than the date such solicitation
is completed. If such a record date is fixed, such request, demand,
authorization, direction, notice, consent, waiver or other Act may be given
before or after such record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the purposes of
determining whether Holders of the requisite proportion of Outstanding
Securities have authorized or agreed or consented to such request, demand,
authorization, direction, notice, consent, waiver or other Act, and for that
purpose the Outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the Holders on such
record date shall be deemed effective unless it shall become effective pursuant
to the provisions of this Indenture not later than 180 days after the record
date.
(f) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
14
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee, any
Security Registrar, any Paying Agent, any Authenticating Agent, or the Company
in reliance thereon, whether or not notation of such action is made upon such
Security.
Section 105. Notices, Etc., to Trustee and Company.
-------------------------------------
(a) Any request, demand, authorization, direction, notice, consent,
waiver or Act of Holders or other document provided or permitted by this
Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing ( which may be via facsimile) to or with the Trustee
at its Corporate Trust Office, Attention: Corporate Trust
Administration, or at any other address previously furnished in
writing by the Trustee to the Holders or the Company, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage
prepaid, to the Company addressed to it at the address of the
Company's principal office specified in the first paragraph of this
Indenture or at any other address previously furnished in writing to
the Trustee by the Company.
Section 106. Notice to Holders; Waiver.
-------------------------
(a) Where this Indenture provides for notice of any event to Holders
of Registered Securities by the Company or the Trustee, such notice shall be
sufficiently given (unless otherwise herein expressly provided) if in writing
and mailed, first-class postage prepaid, or by email, to each such Holder
affected by such event, at his physical address or email address as such address
appears in the Security Register, not later than the latest date, and not
earlier than the earliest date, prescribed for the giving of such notice. In any
case where notice to Holders of Registered Securities is given by mail, neither
the failure to mail such notice, nor any defect in any notice so mailed, to any
particular Holder shall affect the sufficiency of such notice with respect to
other Holders of Registered Securities or the sufficiency of any notice to
Holders of Bearer Securities given as provided herein. Any notice mailed to a
Holder in the manner herein prescribed shall be conclusively deemed to have been
received by such Holder, whether or not such Holder actually receives such
notice.
(b) In case, by reason of the suspension of or irregularities in
regular mail service or by reason of any other cause it shall be impracticable
to mail notice of any event to Holders of Registered Securities when such notice
is required to be given pursuant to any provision of this Indenture, then any
manner of giving such notice as shall be satisfactory to the Trustee shall be
deemed to be sufficient giving of such notice for every purpose hereunder.
15
(c) Except as otherwise expressly provided herein or otherwise
specified with respect to any Securities pursuant to Section 301, where this
Indenture provides for notice to Holders of Bearer Securities of any event, such
notice shall be sufficiently given to Holders of Bearer Securities if published
at least twice in an Authorized Newspaper in The City of New York and in such
other city or cities as may be specified in such Securities on a Business Day,
the first such publication to be not earlier than the earliest date, and not
later than the latest date, prescribed for the giving of such notice. Any such
notice shall be deemed to have been given on the date of the first such
publication.
(d) If by reason of the suspension of publication of any Authorized
Newspaper or Authorized Newspapers or by reason of any other cause it shall be
impracticable to publish any notice to Holders of Bearer Securities as provided
above, then such notification to Holders of Bearer Securities as shall be given
with the approval of the Trustee shall constitute sufficient notice to such
Holders for every purpose hereunder. Neither the failure to give notice by
publication to any Holder of Bearer Securities as provided above, nor any defect
in any notice so published, shall affect the sufficiency of such notice with
respect to other Holders of Bearer Securities or the sufficiency of any notice
to Holders of Registered Securities given as provided herein.
(e) Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
(f) Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
Section 107. Effect of Headings and Table of Contents.
----------------------------------------
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
Section 108. Successors and Assigns.
----------------------
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
Section 109. Separability Clause.
-------------------
In case any provision in this Indenture or in any Security, or coupon
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
16
Section 110. Benefits of Indenture.
---------------------
Nothing in this Indenture or in the Securities, or coupons, express or
implied, shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent, any Authenticating Agent and their successors
hereunder and the Holders any benefit or any legal or equitable right, remedy or
claim under this Indenture.
Section 111. Governing Law.
-------------
This Indenture, the Securities, and coupons shall be governed by and
construed in accordance with the law of the State of New York. This Indenture is
subject to the provisions of the Trust Indenture Act that are required to be
part of this Indenture and shall, to the extent applicable, be governed by such
provisions.
Section 112. Legal Holidays.
--------------
In any case where any Interest Payment Date, Redemption Date,
Repayment Date, sinking fund payment date, Stated Maturity or Maturity of any
Security shall not be a Business Day at any Place of Payment, then
(notwithstanding any other provision of this Indenture or any Security or coupon
other than a provision in the Securities of any series which specifically states
that such provision shall apply in lieu of this Section), payment of principal
(or premium, if any) or interest, if any, need not be made at such Place of
Payment on such date, but may be made on the next succeeding Business Day at
such Place of Payment with the same force and effect as if made on the Interest
Payment Date, Redemption Date, Repayment Date or sinking fund payment date, or
at the Stated Maturity or Maturity; provided that no interest shall accrue on
the amount so payable for the period from and after such Interest Payment Date,
Redemption Date, Repayment Date, sinking fund payment date, Stated Maturity or
Maturity, as the case may be.
Section 113. Conflict of Any Provision of Indenture with Trust
-------------------------------------------------
Indenture Act.
-------------
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with any provision (an "incorporated provision") required
by or deemed to be included in this Indenture by operation of the TIA, such
imposed duties or incorporated provisions shall control. If any provision of
this Indenture modifies or excludes any provision of the TIA that may be so
modified or excluded, the latter provision shall be deemed to apply to this
Indenture as so modified or excluded, as the case may be.
Section 114. No Recourse against Others.
--------------------------
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities, or this Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. Each Holder by accepting any of
the Securities waives and releases all such liability.
17
Section 115. Waiver of Trial by Jury.
-----------------------
The Company, the Trustee, and Holders hereby irrevocably and
unconditionally waive the right to trial by jury in connection with any claim
arising out of or relating to the Securities and under this Indenture.
ARTICLE TWO
SECURITIES FORMS
Section 201. Forms of Securities.
-------------------
(a) The Registered Securities, if any, of each series, the Bearer
Securities, if any, of each series and related coupons shall be in substantially
the forms as shall be established in one or more indentures supplemental hereto
or approved from time to time by or pursuant to a Board Resolution in accordance
with Section 301, shall have such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by this
Indenture or any indenture supplemental hereto, and may have such letters,
numbers or other marks of identification or designation and such legends or
endorsements placed thereon as the Company, as the case may be, may deem
appropriate and as are not inconsistent with the provisions of this Indenture,
or as may be required to comply with any law or with any rule or regulation made
pursuant thereto or with any rule or regulation of any stock exchange on which
the Securities may be listed, or to conform to usage.
(b) Unless otherwise specified as contemplated by Section 301, Bearer
Securities shall have interest coupons attached.
(c) The definitive Securities and coupons shall be printed,
lithographed or engraved or produced by any combination of these methods on a
steel engraved border or steel engraved borders or may be produced in any other
manner, all as determined by the officers executing such Securities or coupons,
as evidenced by their execution of such Securities or coupons.
Section 202. Form of Trustee's Certificate of Authentication.
-----------------------------------------------
Subject to Section 611, the Trustee's certificate of authentication
shall be in substantially the following form:
This is one of the Securities of the series designated herein and
referred to in the within-mentioned Indenture.
18
THE BANK OF NEW YORK
as Trustee
By:
-----------------------------------
Authorized Signatory
Dated:
-----------------------------------
Section 203. Securities Issuable in Global Form.
----------------------------------
(a) If Securities of or within a series are issuable in global form,
as specified as contemplated by Section 301, then, notwithstanding clause (8) of
Subsection 301(b) and the provisions of Section 302, any such Security shall
represent such of the Outstanding Securities of such series as shall be
specified therein and may provide that it shall represent the aggregate amount
of Outstanding Securities of such series from time to time endorsed thereon and
that the aggregate amount of Outstanding Securities of such series represented
thereby may from time to time be increased or decreased to reflect exchanges.
Any endorsement of a Security in global form to reflect the amount, or any
increase or decrease in the amount, of Outstanding Securities represented
thereby shall be made by the Trustee in such manner and upon instructions given
by such Person or Persons as shall be specified therein or in the Company Order
to be delivered to the Trustee pursuant to Section 303 or Section 304. Subject
to the provisions of Section 303 and, if applicable, Section 304, the Trustee
shall deliver and redeliver any Security in permanent global form in the manner
and upon instructions given by the Person or Persons specified therein or in the
applicable Company Order. If a Company Order pursuant to Section 303 or Section
304 has been, or simultaneously is, delivered, any instructions by the Company
with respect to endorsement, delivery or redelivery of a Security in global form
shall be in writing but need not comply with Section 102 and need not be
accompanied by an Opinion of Counsel.
(b) The provisions of Subsection 303(h) shall apply to any Security
represented by a Security in global form if such Security was never issued and
sold by the Company and the Company delivers to the Trustee the Security in
global form together with written instructions (which need not comply with
Section 102 and need not be accompanied by an Opinion of Counsel) with regard to
the reduction in the principal amount of Securities represented thereby,
together with the written statement contemplated by the last sentence of Section
303.
(c) Notwithstanding the provisions of Section 307, unless otherwise
specified as contemplated by Section 301, payment of principal of (and premium,
if any) and interest, if any, on any Security in permanent global form shall be
made to the Person or Persons specified therein.
(d) Notwithstanding the provisions of Section 309 and except as
provided in Subsection (c) of this Section, the Company, the Trustee and any
agent of the Company and the Trustee shall treat as the Holder of such principal
amount of Outstanding Securities represented by a permanent global Security (1)
19
in the case of a permanent global Security in registered form, the Holder of
such permanent global Security in registered form, or (2) in the case of a
permanent global Security in bearer form, Euroclear or Clearstream.
Section 204. Form of Legend for Book-Entry Securities.
----------------------------------------
Any Global Security authenticated and delivered hereunder shall bear a
legend (which would be in addition to any other legends required in the case of
a restricted Security) in substantially the following form:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A
DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER OF THIS
SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITORY OR ITS NOMINEE EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY
CERTIFICATE ISSUED IN EXCHANGE FOR THIS CERTIFICATE IS REGISTERED IN
THE NAME OF CEDE & CO., OR SUCH OTHER NAME AS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY, ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS
WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
ARTICLE THREE
THE SECURITIES
Section 301. Amount Unlimited; Issuable in Series.
------------------------------------
(a) The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is unlimited.
(b) The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Sixteen. The Securities shall rank equally
and pari passu and may be issued in one or more series. There shall be
established in one or more Board Resolutions or pursuant to authority granted by
one or more Board Resolutions and, subject to Section 303, set forth, or
determined in the manner provided, in an Officers' Certificate, or established
in one or more indentures supplemental hereto, prior to the issuance of
Securities of any series, any or all of the following, as applicable (each of
which (except for the matters set forth in clauses (1), (2) and (15) of this
20
Subsection), if so provided, may be determined from time to time by the Company
with respect to unissued Securities of the series and set forth in such
Securities of the series when issued from time to time):
(1) the title of the Securities of the series, including
CUSIP Numbers (which shall distinguish the Securities of such series
from all other series of Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered under
this Indenture (except for Securities authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other
Securities of the series pursuant to Section 304, 305, 306, 906, 1107
or 1305) and whether any series may be reopened for additional
Securities of that series; in the event that such series of Securities
may be reopened from time to time for issuances of additional
Securities of such series, the terms thereof shall indicate whether
any such additional Securities shall have the same terms as the prior
Securities of such series or whether the Company may establish
additional or different terms with respect to such additional
Securities;
(3) the date or dates, or the method by which such date or
dates will be determined or extended, on which the principal (and
premium, if any,) of the Securities of the series shall be payable;
(4) the rate or rates at which the Securities of the series
shall bear interest, if any, or the method by which such rate or rates
shall be determined, the date or dates from which such interest shall
accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest shall be payable and
the Regular Record Date, if any, for the interest payable on any
Registered Security on any Interest Payment Date, or the method by
which such date shall be determined, and the basis upon which interest
shall be calculated if other than on the basis of a 360-day year of
twelve 30-day months;
(5) the place or places, if any, other than or in addition
to the Borough of Manhattan, The City of New York, where the principal
of (and premium, if any) and interest, if any, on Securities of the
series shall be payable, where any Registered Securities of the series
may be surrendered for registration of transfer, where Securities of
the series may be surrendered for exchange, where Securities of the
series that are convertible or exchangeable may be surrendered for
conversion or exchange, as applicable, and where notices or demands to
or upon the Company in respect of the Securities of the series and
this Indenture may be served;
21
(6) the period or periods within which or the date or dates
on which, the price or prices at which, the Currency or Currencies in
which, and other terms and conditions upon which Securities of the
series may be redeemed, in whole or in part, at the option of the
Company, if the Company is to have that option;
(7) the obligation, if any, of the Company to redeem, repay
or purchase Securities of the series pursuant to any sinking fund or
analogous provision or at the option of a Holder thereof, and the
period or periods within which or the date or dates on which, the
price or prices at which, the Currency or Currencies in which, and
other terms and conditions upon which Securities of the series shall
be redeemed, repaid or purchased, in whole or in part, pursuant to
such obligation;
(8) if other than denominations of $1,000 and any integral
multiple thereof, the denomination or denominations in which any
Registered Securities of the series shall be issuable and, if other
than denominations of $5,000, the denomination or denominations in
which any Bearer Securities of the series shall be issuable;
(9) if other than the Trustee, the identity of each Security
Registrar and/or Paying Agent;
(10) if other than the principal amount thereof, the portion
of the principal amount of Securities of the series that shall be
payable upon declaration of acceleration of the Maturity thereof
pursuant to Section 502 or the method by which such portion shall be
determined;
(11) if other than Dollars, the Currency or Currencies in
which payment of the principal of (or premium, if any) or interest, if
any, on the Securities of the series shall be made or in which the
Securities of the series shall be denominated and the particular
provisions applicable thereto in accordance with, in addition to or in
lieu of any of the provisions of Section 312;
(12) whether the amount of payments of principal of (or
premium, if any) or interest, if any, on the Securities of the series
may be determined with reference to an index, formula or other method
(which index, formula or method may be based, without limitation, on
one or more Currencies, commodities, equity indices or other indices),
and the manner in which such amounts shall be determined;
(13) whether the principal of (or premium, if any) or
interest, if any, on the Securities of the series are to be payable,
at the election of the Company or a Holder thereof, in a Currency
other than that in which such Securities are denominated or stated to
be payable, the period or periods within which (including the Election
Date), and the terms and conditions upon which, such election may be
22
made, and the time and manner of determining the exchange rate between
the Currency in which such Securities are denominated or stated to be
payable and the Currency in which such Securities are to be so
payable, in each case in accordance with, in addition to or in lieu of
any of the provisions of Section 312;
(14) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events
as may be specified;
(15) any deletions from, modifications of or additions to
the Events of Default or covenants or other provisions (including any
deletions from, modifications of or additions to any of the provisions
of Section 1007) of the Company with respect to Securities of the
series, whether or not such Events of Default or covenants or other
provisions are consistent with the Events of Default or covenants or
other provisions set forth herein;
(16) whether Securities of the series are to be issuable as
Registered Securities, Bearer Securities or both, any restrictions
applicable to the offer, sale or delivery of Bearer Securities,
whether any Securities of the series are to be issuable initially in
temporary global form and whether any Securities of the series are to
be issuable in permanent global form with or without coupons and, if
so, whether beneficial owners of interests in any such permanent
global Security may exchange such interests for Securities of such
series and of like tenor of any authorized form and denomination and
the circumstances under which any such exchanges may occur, if other
than in the manner provided in Section 305, whether Registered
Securities of the series may be exchanged for Bearer Securities of the
series (if permitted by applicable laws and regulations), whether
Bearer Securities of the series may be exchanged for Registered
Securities of such series, and the circumstances under which and the
place or places where any such exchanges may be made and if Securities
of the series are to be issuable in global form, the identity of any
initial depository therefor;
(17) the date as of which any Bearer Securities of the
series and any temporary global Security representing Outstanding
Securities of the series shall be dated if other than the date of
original issuance of the first Security of the series to be issued;
(18) the Person to whom any interest on any Registered
Security of the series shall be payable, if other than the Person in
whose name such Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for
such interest, the manner in which, or the Person to whom, any
interest on any Bearer Security of the series shall be payable, if
otherwise than upon presentation and surrender of the coupons
appertaining thereto as they severally mature, and the extent to
23
which, or the manner in which, any interest payable on a temporary
global Security on an Interest Payment Date will be paid if other than
in the manner provided in Section 304;
(19) the applicability, if any, of Sections 1402 and 1403 to
the Securities of the series and any provisions in modification of, in
addition to or in lieu of any of the provisions of Article Fourteen;
(20) if the Securities of such series are to be issuable in
definitive form (whether upon original issue or upon exchange of a
temporary Security of such series) only upon receipt of certain
certificates or other documents or satisfaction of other conditions,
then the form and/or terms of such certificates, documents or
conditions;
(21) whether, under what circumstances and the Currency in
which, the Company will pay Additional Amounts as contemplated by
Section 1005 on the Securities of the series to any Holder who is not
a United States person (including any modification to the definition
of such term) in respect of any tax, assessment or governmental charge
and, if so, whether the Company will have the option to redeem such
Securities rather than pay such Additional Amounts (and the terms of
any such option);
(22) the designation of the initial Exchange Rate Agent, if
any;
(23) if the Securities of the series are to be convertible
into or exchangeable for any securities of any Person (including the
Company), the terms and conditions upon which such Securities of the
series will be so convertible or exchangeable (including, without
limitation, the initial conversion price or rate, the conversion
period, the conversion agent, if any, adjustments of the applicable
conversion price or rate and any requirements with respect to the
reservation of shares or Securities for purposes of conversion);
(24) if the Securities of the series are to be issued upon
the exercise of warrants, the time, manner and place for such
Securities to be authenticated and delivered; and
(25) any other terms of the series (which terms shall not be
inconsistent with the requirements of the TIA).
(c) All Securities of any one series and the coupons appertaining to
any Bearer Securities of such series shall be substantially identical except, in
the case of Registered Securities, as to denomination and except as may
otherwise be provided in or pursuant to such Board Resolution (subject to
Section 303) and set forth in such Officers' Certificate or in any such
indenture supplemental hereto. Not all Securities of any one series need to be
issued at the same time and, unless otherwise provided, a series may be
reopened, without the consent of the Holders, for issuances of additional
24
Securities of such series or to establish additional terms of such series of
Securities (which additional terms shall only be applicable to unissued or
additional Securities of such series).
(d) If any of the terms of the Securities of any series are
established by action taken pursuant to one or more Board Resolutions, a copy of
an appropriate record of such action(s) shall be certified by the Secretary or
an Assistant Secretary [or any Vice President] of the Company and delivered to
the Trustee at or prior to the delivery of the Officers' Certificate setting
forth the terms of the Securities of such series.
Section 302. Denominations.
-------------
The Securities of each series shall be issuable in such denominations
as shall be specified as contemplated by Section 301. In the absence of any such
provision with respect to Securities of any series, the principal, premium and
interest and Additional Amounts with respect to the Securities shall be payable
in Dollars. With respect to Securities of any series denominated in Dollars, in
the absence of any such provisions with respect to the Securities of any series,
the Registered Securities of such series, other than Registered Securities
issued in global form (which may be of any denomination) shall be issuable in
denominations of $1,000 and any integral multiple thereof, and the Bearer
Securities of such series, other than Bearer Securities issued in global form
(which may be of any denomination), shall be issuable in a denomination of
$5,000.
Section 303. Execution, Authentication, Delivery and Dating.
----------------------------------------------
(a) The Securities and any coupons appertaining thereto shall be
executed on behalf of the Company by its Chairman, its President or Chief
Executive Officer, under its corporate seal reproduced thereon or a facsimile or
copy thereof and attested by its Secretary or one of its Assistant Secretaries
or Vice Presidents. The signature of any of these officers on the Securities and
coupons may be manual or facsimile signatures of the present or any future such
authorized officer and may be imprinted or otherwise reproduced on the
Securities.
(b) Securities or coupons bearing the manual or facsimile signatures
of individuals who were at any time the proper officers of the Company shall
bind the Company, notwithstanding that such individuals or any of them have
ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or
coupons.
(c) At any time and from time to time after the execution and delivery
of this Indenture, the Company may deliver Securities of any series, together
with any coupon appertaining thereto, executed by the Company, to the Trustee
for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company
Order shall authenticate and deliver such Securities; provided, that, in
connection with its original issuance, no Bearer Security shall be mailed or
otherwise delivered to any location in the United States; and provided further
that, unless otherwise specified with respect to any series of Securities
25
pursuant to Section 301, a Bearer Security may be delivered in connection with
its original issuance only if the Person entitled to receive such Bearer
Security shall have furnished a certificate in the form set forth in Exhibit A-1
to this Indenture or such other certificate as may be specified with respect to
any series of Securities pursuant to Section 301, dated no earlier than 15 days
prior to the earlier of the date on which such Bearer Security is delivered and
the date on which any temporary Security first becomes exchangeable for such
Bearer Security in accordance with the terms of such temporary Security and this
Indenture. If any Security shall be represented by a permanent global Bearer
Security, then, for purposes of this Section and Section 304, the notation of a
beneficial owner's interest therein upon original issuance of such Security or
upon exchange of a portion of a temporary global Security shall be deemed to be
delivery in connection with its original issuance of such beneficial owner's
interest in such permanent global Bearer Security. Except as permitted by
Section 306, the Trustee shall not authenticate and deliver any Bearer Security
unless all appurtenant coupons for interest then matured have been detached and
cancelled. If all the Securities of any series are not to be issued at one time
and if the Board Resolution or supplemental indenture establishing such series
shall so permit, such Company Order may set forth procedures acceptable to the
Trustee for the issuance of such Securities and determining the terms of
particular Securities of such series, such as interest rate, maturity date, date
of issuance and date from which interest shall accrue. In authenticating such
Securities, and accepting the additional responsibilities under this Indenture
in relation to such Securities, the Trustee shall be entitled to receive, and
(subject to TIA Sections 315(a) through 315(d)) shall be fully protected in
relying upon,
(1) an Opinion of Counsel stating,
(i) that the form or forms of such Securities and
any coupons have been established in conformity with the
provisions of this Indenture;
(ii) that the terms of such Securities and any
coupons have been established in conformity with the
provisions of this Indenture; and
(iii) that such Securities, together with any
coupons appertaining thereto, when completed by appropriate
insertions and executed and delivered by the Company to the
Trustee for authentication in accordance with this
Indenture, authenticated and delivered by the Trustee in
accordance with this Indenture and issued by the Company in
the manner and subject to any conditions specified in such
Opinion of Counsel, will constitute legal, valid and binding
obligations of the Company, enforceable in accordance with
their terms, subject to applicable bankruptcy, insolvency,
reorganization and other similar laws of general
applicability relating to or affecting the enforcement of
creditors' rights, to general equitable principles and to
26
such other qualifications as such counsel shall conclude do
not materially affect the rights of Holders of such
Securities and any coupons;
(2) an Officers' Certificate stating, to the best of the
knowledge of the signers of such certificate, that no Event of Default
with respect to any of the Securities shall have occurred and be
continuing; and
(3) an executed supplemental indenture (if any).
(d) Notwithstanding the provisions of Section 301 and of this Section
303, if all the Securities of any series are not to be issued at one time, it
shall not be necessary to deliver an Officers' Certificate otherwise required
pursuant to Section 301 or the Company Order, Opinion of Counsel or Officers'
Certificate otherwise required pursuant to Subsection (c) of this Section at the
time of issuance of each Security of such series, but such order, opinion and
certificates, with appropriate modifications to cover such future issuances,
shall be delivered at or before the time of issuance of the first Security of
such series.
(e) The Trustee shall not be required to authenticate such Securities
if the issue of such Securities pursuant to this Indenture will affect the
Trustee's own rights, duties or immunities under the Securities and this
Indenture or otherwise in a manner which is not reasonably acceptable to the
Trustee. Notwithstanding the generality of the foregoing, the Trustee will not
be required to authenticate Securities denominated in a Foreign Currency if the
Trustee reasonably believes that it would be unable to perform its duties with
respect to such Securities.
(f) Each Registered Security shall be dated the date of its
authentication and each Bearer Security shall be dated as of the date specified
as contemplated by Section 301.
(g) No Security or coupon shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security or Security to which such coupon appertains a certificate of
authentication substantially in the form provided for herein duly executed by
the Trustee or an Authenticating Agent by manual signature of an authorized
signatory, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder and is entitled to the benefits of this Indenture.
(h) Notwithstanding the foregoing, if any Security shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Security to the Trustee for cancellation as
provided in Section 310 together with a written statement (which need not comply
with Section 102 and need not be accompanied by an Opinion of Counsel) stating
that such Security has never been issued and sold by the Company, for all
purposes of this Indenture such Security shall be deemed never to have been
authenticated and delivered hereunder and shall never be entitled to the
benefits of this Indenture.
27
Section 304. Temporary Securities.
--------------------
(a) Pending the preparation of definitive Securities of any series,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Securities which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued, in registered form, or, if authorized, in bearer form with one or
more coupons or without coupons, and with such appropriate insertions,
omissions, substitutions and other variations as the officers executing such
Securities may determine, as conclusively evidenced by their execution of such
Securities. Such temporary Securities may be in global form.
(b) Except in the case of temporary Securities in global form (which
shall be exchanged in accordance with Subsection 304(c) or as otherwise provided
in or pursuant to a Board Resolution), if temporary Securities of any series are
issued, the Company will cause definitive Securities of that series to be
prepared without unreasonable delay. After the preparation of definitive
Securities of such series, the temporary Securities of such series shall be
exchangeable for definitive Securities of such series upon surrender of the
temporary Securities of such series at the office or agency of the Company in a
Place of Payment for that series, without charge to the Holder. Upon surrender
for cancellation of any one or more temporary Securities of any series
(accompanied by any non-matured coupons appertaining thereto), the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor a
like principal amount of definitive Securities of the same series of authorized
denominations; provided, that, no definitive Bearer Security shall be delivered
in exchange for a temporary Registered Security; and provided further that a
definitive Bearer Security shall be delivered in exchange for a temporary Bearer
Security only in compliance with the conditions set forth in Section 303. Until
so exchanged, the temporary Securities of any series shall in all respects be
entitled to the same benefits under this Indenture as definitive Securities of
such series.
(c) (1) Unless otherwise provided in or pursuant to a Board
Resolution, this Subsection 304(c) shall govern the exchange of
temporary Securities issued in global form.
(2) If temporary Securities of any series are issued in
global form, any such temporary global Security shall, unless
otherwise provided therein, be delivered to the London office of a
depositary or common depositary (the "Common Depositary"), for the
benefit of Euroclear and Clearstream, for credit to the respective
accounts of the beneficial owners of such Securities (or to such other
accounts as they may direct).
(3) Without unnecessary delay but in any event not later
than the date specified in, or determined pursuant to the terms of,
any such temporary global Security (the "Exchange Date"), the Company
shall deliver to the Trustee definitive Securities, in aggregate
principal amount equal to the principal amount of such temporary
global Security, executed by the Company. On or after the Exchange
28
Date, such temporary global Security shall be surrendered by the
Common Depositary to the Trustee, as the Company's agent for such
purpose, to be exchanged, in whole or from time to time in part, for
definitive Securities without charge, and the Trustee shall
authenticate and deliver, in exchange for each portion of such
temporary global Security and upon receipt of the Company Order
described in Section 303, an equal aggregate principal amount of
definitive Securities of the same series of authorized denominations
and of like tenor as the portion of such temporary global Security to
be exchanged. The definitive Securities to be delivered in exchange
for any such temporary global Security shall be in bearer form,
registered form, permanent global bearer form or permanent global
registered form, or any combination thereof, as specified as
contemplated by Section 301, and, if any combination thereof is so
specified, as requested by the beneficial owner thereof; provided,
that, -------- unless otherwise specified in such temporary global
Security, upon such presentation by the Common Depositary, such
temporary global Security is accompanied by a certificate dated the
Exchange Date or a subsequent date and signed by Euroclear as to the
portion of such temporary global Security held for its account then to
be exchanged and a certificate dated the Exchange Date or a subsequent
date and signed by Clearstream as to the portion of such temporary
global Security held for its account then to be exchanged, each in the
form set forth in Exhibit A-2 to this Indenture or in such other form
as may be established pursuant to Section 301; and provided further
that -------- ------- definitive Bearer Securities shall be delivered
in exchange for a portion of a temporary global Security only in
compliance with the requirements of Section 303.
(4) Unless otherwise specified in such temporary global
Security, the interest of a beneficial owner of Securities of a series
in a temporary global Security shall be exchanged for definitive
Securities of the same series and of like tenor following the Exchange
Date when the account holder instructs Euroclear or Clearstream, as
the case may be, to request such exchange on his behalf and delivers
to Euroclear or Clearstream, as the case may be, a certificate in the
form set forth in Exhibit A-1 to this Indenture (or in such other form
as may be established pursuant to Section 301), dated no earlier than
15 days prior to the Exchange Date, copies of which certificate shall
be available from the offices of Euroclear and Clearstream, the
Trustee, any Authenticating Agent appointed for such series of
Securities and each Paying Agent. Unless otherwise specified in such
temporary global Security, any such exchange shall be made free of
charge to the beneficial owners of such temporary global Security,
except that a Person receiving definitive Securities must bear the
cost of insurance, postage, transportation and the like in the event
that such Person does not take delivery of such definitive Securities
in person at the offices of Euroclear or Clearstream. Definitive
Securities in bearer form to be delivered in exchange for any portion
29
of a temporary global Security shall be delivered only outside the
United States.
(5) Until exchanged in full as hereinabove provided, the
temporary Securities of any series shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities of
the same series and of like tenor authenticated and delivered
hereunder, except that, unless otherwise specified as contemplated by
Section 301, interest payable on a temporary global Security on an
Interest Payment Date for Securities of such series occurring prior to
the applicable Exchange Date shall be payable to Euroclear and
Clearstream on such Interest Payment Date upon delivery by Euroclear
and Clearstream to the Trustee of a certificate or certificates in the
form set forth in Exhibit A-2 to this Indenture (or in such other
forms as may be established pursuant to Section 301), for credit
without further interest thereon on or after such Interest Payment
Date to the respective accounts of the Persons who are the beneficial
owners of such temporary global Security on such Interest Payment Date
and who have each delivered to Euroclear or Clearstream, as the case
may be, a certificate dated no earlier than 15 days prior to the
Interest Payment Date occurring prior to such Exchange Date in the
form set forth in Exhibit A-1 to this Indenture (or in such other
forms as may be established pursuant to Section 301). Notwithstanding
anything to the contrary herein contained, the certifications made
pursuant to this clause (5) of Subsection 304(c) shall satisfy the
certification requirements of clauses (3) and (4) of this Subsection
304(c) and of Subsection 303(c) of this Indenture and the interests of
the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be
exchanged for definitive Securities of the same series and of like
tenor on the Exchange Date or the date of certification if such date
occurs after the Exchange Date, without further act or deed by such
beneficial owners. Except as otherwise provided in this clause (5) of
Subsection 304(c), no payments of principal (or premium, if any) or
interest, if any, owing with respect to a beneficial interest in a
temporary global Security will be made unless and until such interest
in such temporary global Security shall have been exchanged for an
interest in a definitive Security. Any interest so received by
Euroclear and Clearstream and not paid as herein provided shall be
returned to the Trustee prior to the expiration of two years after
such Interest Payment Date in order to be repaid to the Company.
Section 305. Registration, Registration of Transfer and Exchange.
---------------------------------------------------
(a) The Company shall cause to be kept at the Corporate Trust Office
of the Trustee or in any office or agency of the Company in a Place of Payment a
register for each series of Securities (the registers maintained in such office
or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the "Security Register") in which,
30
subject to such reasonable regulations as it may prescribe, the Company shall
provide for the registration of Registered Securities and of transfers of
Registered Securities. The Security Register shall be in written form or any
other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby initially appointed
"Security Registrar" for the purpose of registering Registered Securities and
transfers of Registered Securities on such Security Register as herein provided.
In the event that the Trustee shall cease to be Security Registrar, it shall
have the right to examine the Security Register at all reasonable times.
(b) Upon surrender for registration of transfer of any Registered
Security of any series at any office or agency in a Place of Payment for the
register and transfer of Securities that series, the Company shall execute, and
the Trustee shall authenticate and deliver, subject to the terms and conditions
of this Article Three, in the name of the designated transferee or transferees,
one or more new Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, and tenor.
(c) At the option of the Holder, Registered Securities of any series
may be exchanged for other Registered Securities of the same series, of any
authorized denomination and of a like aggregate principal amount, containing
identical terms and provisions, upon surrender of the Registered Securities to
be exchanged at such office or agency. Whenever any Registered Securities are so
surrendered for exchange, the Company shall execute, and the Trustee shall
authenticate and deliver, the Registered Securities which the Holder making the
exchange is entitled to receive. Unless otherwise specified with respect to any
series of Securities as contemplated by Section 301, Bearer Securities may not
be issued in exchange for Registered Securities.
(d) If (but only if) expressly permitted in or pursuant to the
applicable Board Resolution and (subject to Section 303) set forth in the
applicable Officers' Certificate, or in any indenture supplemental hereto,
delivered as contemplated by Section 301, at the option of the Holder, Bearer
Securities of any series may be exchanged for Registered Securities of the same
series of any authorized denomination and of a like aggregate principal amount
and tenor, upon surrender of the Bearer Securities to be exchanged at any such
office or agency, with all unmatured coupons and all matured coupons in default
thereto appertaining. If the Holder of a Bearer Security is unable to produce
any such unmatured coupon or coupons or matured coupon or coupons in default,
any such permitted exchange may be effected if the Bearer Securities are
accompanied by payment in funds acceptable to the Company in an amount equal to
the face amount of such missing coupon or coupons, or the surrender of such
missing coupon or coupons may be waived by the Company and the Trustee if there
is furnished to them such security or indemnity as they may require to save each
of them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to any Paying Agent any such missing coupon in respect of which
such a payment shall have been made, such Holder shall be entitled to receive
the amount of such payment; provided, that, except as otherwise provided in
Section 1002, interest represented by coupons shall be payable only upon
presentation and surrender of those coupons at an office or agency located
outside the United States. Notwithstanding the foregoing, in case a Bearer
31
Security of any series is surrendered at any such office or agency in a
permitted exchange for a Registered Security of the same series and like tenor
after the close of business at such office or agency on (i) any Regular Record
Date and before the opening of business at such office or agency on the relevant
Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of
Defaulted Interest, such Bearer Security shall be surrendered without the coupon
relating to such Interest Payment Date or proposed date for payment, as the case
may be, and interest or Defaulted Interest, as the case may be, will not be
payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer
Security, but will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(e) Whenever any Securities are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Securities which the Holder making the exchange is entitled to receive.
(f) Notwithstanding the foregoing, except as otherwise specified as
contemplated by Section 301, any permanent global Security shall be exchangeable
only as provided in this Subsection 305(f). If any beneficial owner of an
interest in a permanent global Security is entitled to exchange such interest
for Securities of such series and of like tenor and principal amount of another
authorized form and denomination, as specified as contemplated by Section 301
and provided that any applicable notice provided in the permanent global
Security shall have been given, then without unnecessary delay but in any event
not later than the earliest date on which such interest may be so exchanged, the
Company shall deliver to the Trustee definitive Securities in aggregate
principal amount equal to the principal amount of such beneficial owner's
interest in such permanent global Security, executed by the Company. On or after
the earliest date on which such interests may be so exchanged, such permanent
global Security shall be surrendered by the Common Depositary or such other
depositary as shall be specified in the Company Order with respect thereto to
the Trustee, as the Company's agent for such purpose, to be exchanged, in whole
or from time to time in part, for definitive Securities without charge and the
Trustee shall authenticate and deliver, in exchange for each portion of such
permanent global Security, an equal aggregate principal amount of definitive
Securities of the same series of authorized denominations and of like tenor as
the portion of such permanent global Security to be exchanged which, unless the
Securities of the series are not issuable both as Bearer Securities and as
Registered Securities, as specified as contemplated by Section 301, shall be in
the form of Bearer Securities or Registered Securities, or any combination
thereof, as shall be specified by the beneficial owner thereof; provided, that,
no such exchanges may occur during a period beginning at the opening of business
15 days before any selection of Securities to be redeemed and ending on the
relevant Redemption Date if the Security for which exchange is requested may be
among those selected for redemption; and provided further that no Bearer
Security delivered in exchange for a portion of a permanent global Security
shall be mailed or otherwise delivered to any location in the United States. If
a Registered Security is issued in exchange for any portion of a permanent
global Security after the close of business at the office or agency where such
32
exchange occurs on (1) any Regular Record Date and before the opening of
business at such office or agency on the relevant Interest Payment Date, or (2)
any Special Record Date and before the opening of business at such office or
agency on the related proposed date for payment of Defaulted Interest, interest
or Defaulted Interest, as the case may be, will not be payable on such Interest
Payment Date or proposed date for payment, as the case may be, in respect of
such Registered Security, but will be payable on such Interest Payment Date or
proposed date for payment, as the case may be, only to the Person to whom
interest in respect of such portion of such permanent global Security is payable
in accordance with the provisions of this Indenture.
(g) All Securities issued upon any registration of transfer or
exchange of Securities shall be valid obligations of the Company, evidencing the
same debt and entitled to the same benefits under this Indenture, as the
Securities surrendered upon such registration of transfer or exchange.
(h) Every Registered Security presented or surrendered for
registration of transfer or for exchange shall (if so required by the Company or
the Security Registrar) be duly endorsed, or be accompanied by a written
instrument of transfer in form satisfactory to the Company and the Security
Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
(i) No service charge shall be made for any registration of transfer
or exchange of Securities, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Securities, other
than exchanges pursuant to Section 304, 906, 1107 or 1305 not involving any
transfer.
(j) The Company shall not be required (1) to issue, register the
transfer of or exchange any Security if such Security may be among those
selected for redemption during a period beginning at the opening of business 15
days before, and ending at the close of business on (i) if such Securities are
issuable only as Registered Securities, the day of the mailing of the relevant
notice of redemption and (ii) if such Securities are issuable as Bearer
Securities, the day of the first publication of the relevant notice of
redemption or, if such Securities are also issuable as Registered Securities and
there is no publication, the mailing of the relevant notice of redemption, or
(2) to register the transfer of or exchange any Registered Security so selected
for redemption in whole or in part, except, in the case of any Registered
Security to be redeemed in part, the unredeemed portion thereof, or (3) to
exchange any Bearer Security so selected for redemption except that such a
Bearer Security may be exchanged for a Registered Security of that series and
like tenor, provided that such Registered Security shall be simultaneously
surrendered for redemption, or (4) to issue, register the transfer of or
exchange any Security which has been surrendered for repayment at the option of
the Holder, except the portion, if any, of such Security not to be so repaid.
(k) Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
33
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States Federal or state securities law.
(l) The Trustee shall have no obligation or duty to monitor, determine
or inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security (including any transfers between or among Depository
Participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by, the terms of this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
------------------------------------------------
(a) If any mutilated Security or a Security with a mutilated coupon
appertaining to it is surrendered to the Trustee or the Company, together with,
in proper cases, such security or indemnity as may be required by the Company or
the Trustee to save each of them or any agent of either of them harmless, the
Company shall execute and the Trustee shall authenticate and deliver in exchange
therefor a new Security of the same series and of like tenor and principal
amount, and bearing a number not contemporaneously outstanding, with coupons
corresponding to the coupons, if any, appertaining to the surrendered Security.
(b) If there shall be delivered to the Company and to the Trustee (1)
evidence to their satisfaction of the destruction, loss or theft of any Security
or coupon, and (2) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security or coupon has been
acquired by a bona fide purchaser, the Company shall execute and upon Company
Order the Trustee shall authenticate and deliver, in lieu of any such destroyed,
lost or stolen Security or in exchange for the Security to which a destroyed,
lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and of like tenor and
principal amount and bearing a number not contemporaneously outstanding, with
coupons corresponding to the coupons, if any, appertaining to such destroyed,
lost or stolen Security or to the Security to which such destroyed, lost or
stolen coupon appertains.
(c) Notwithstanding the provisions of the Subsections 306(a) and (b),
in case any such mutilated, destroyed, lost or stolen Security or coupon has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, with coupons corresponding to the coupons, if
any, appertaining to such mutilated, destroyed, lost or stolen Security or to
the Security to which such mutilated, destroyed, lost or stolen coupon
appertains, pay such Security or coupon; provided, that, payment of principal of
(and premium, if any) and interest, if any, on Bearer Securities shall, except
as otherwise provided in Section 1002, be payable only at an office or agency
located outside the United States and, unless otherwise specified as
34
contemplated by Section 301, any interest on Bearer Securities shall be payable
only upon presentation and surrender of the coupons appertaining thereto.
(d) Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
(e) Every new Security of any series, together with its coupons, if
any, issued pursuant to this Section in lieu of any mutilated, destroyed, lost
or stolen Security, or in exchange for a Security to which a mutilated,
destroyed, lost or stolen coupon appertains, shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security and its coupons, if any, or the mutilated,
destroyed, lost or stolen coupon shall be at any time enforceable by anyone, and
shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities of that series and their
coupons, if any, duly issued hereunder.
(f) The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities or
coupons.
Section 307. Payment of Interest; Interest Rights Preserved; Optional
--------------------------------------------------------
Interest Reset.
--------------
(a) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, interest, if any,
on any Registered Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the Person in whose
name that Security (or one or more Predecessor Securities) is registered at the
close of business on the Regular Record Date for such interest at the office or
agency of the Company maintained for such purpose pursuant to Section 1002;
provided, that, each installment of interest, if any, on any Registered Security
may at the Company's option be paid by (1) mailing a check for such interest,
payable to or upon the written order of the Person entitled thereto pursuant to
Section 309, to the address of such Person as it appears on the Security
Register or (2) transfer to an account located in the United States maintained
by the payee.
(b) Unless otherwise provided as contemplated by Section 301 with
respect to the Securities of any series, payment of interest, if any, may be
made, in the case of a Bearer Security, by transfer to an account located
outside the United States maintained by the payee.
(c) Unless otherwise provided as contemplated by Section 301, every
permanent global Security will provide that interest, if any, payable on any
Interest Payment Date will be paid to each of Euroclear and Clearstream with
respect to that portion of such permanent global Security held for its account
by the Common Depositary, for the purpose of permitting each of Euroclear and
35
Clearstream to credit the interest, if any, received by it in respect of such
permanent global Security to the accounts of the beneficial owners thereof.
(d) In case a Bearer Security of any series is surrendered in exchange
for a Registered Security of such series after the close of business (at an
office or agency in a Place of Payment for such series) on any Regular Record
Date and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered
without the coupon relating to such Interest Payment Date and interest will not
be payable on such Interest Payment Date in respect of the Registered Security
issued in exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of this
Indenture.
(e) Except as otherwise specified with respect to a series of
Securities in accordance with the provisions of Section 301, any interest on any
Registered Security of any series that is payable, but is not punctually paid or
duly provided for, on any Interest Payment Date (herein called "Defaulted
Interest") shall forthwith cease to be payable to the registered Holder thereof
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (1) or (2) of this Subsection:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Registered Securities of
such series (or their respective Predecessor Securities) are
registered at the close of business on a Special Record Date for the
payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each
Registered Security of such series and the date of the proposed
payment (which shall not be less than 20 days after such notice is
received by the Trustee), and at the same time the Company shall
deposit with the Trustee an amount of money in the Currency in which
the Securities of such series are payable (except as otherwise
specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Subsections 312(b), 312(d)
and 312(e)) equal to the aggregate amount proposed to be paid in
respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date
of the proposed payment, such money when deposited to be held in trust
for the benefit of the Persons entitled to such Defaulted Interest as
in this clause provided. Thereupon the Trustee shall fix a Special
Record Date for the payment of such Defaulted Interest which shall be
not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by
the Trustee of the notice of the proposed payment. The Trustee shall
promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor to be given in the manner provided in Section 106, not
36
less than 10 days prior to such Special Record Date. Notice of the
proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so given, such Defaulted Interest shall be
paid to the Persons in whose names the Registered Securities of such
series (or their respective Predecessor Securities) are registered at
the close of business on such Special Record Date and shall no longer
be payable pursuant to the following clause (2) of this Subsection. In
case a Bearer Security of any series is surrendered at the office or
agency in a Place of Payment for such series in exchange for a
Registered Security of such series after the close of business at such
office or agency on any Special Record Date and before the opening of
business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be
surrendered without the coupon relating to such proposed date of
payment and Defaulted Interest will not be payable on such proposed
date of payment in respect of the Registered Security issued in
exchange for such Bearer Security, but will be payable only to the
Holder of such coupon when due in accordance with the provisions of
this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
(f) The provisions of this Subsection 307(f) may be made applicable to
any series of Securities pursuant to Section 301 (with such modifications,
additions or substitutions as may be specified pursuant to such Section 301).
The interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable) on any Security of such series may be reset by the
Company on the date or dates specified on the face of such Security (each an
"Optional Reset Date"). The Company may exercise such option with respect to
such Security by notifying the Trustee of such exercise at least 45 but not more
than 60 days prior to an Optional Reset Date for such Security. Not later than
40 days prior to each Optional Reset Date, the Trustee shall transmit, in the
manner provided for in Section 106, to the Holder of any such Security a notice
(the "Reset Notice") indicating whether the Company has elected to reset the
interest rate (or the spread or spread multiplier used to calculate such
interest rate, if applicable), and if so (1) such new interest rate (or such new
spread or spread multiplier, if applicable) and (2) the provisions, if any, for
redemption during the period from such Optional Reset Date to the next Optional
Reset Date or if there is no such next Optional Reset Date, to the Stated
Maturity of such Security (each such period a "Subsequent Interest Period"),
including the date or dates on which or the period or periods during which and
the price or prices at which such redemption may occur during the Subsequent
Interest Period.
37
(g) Notwithstanding the foregoing, not later than 20 days prior to the
Optional Reset Date, the Company may, at its option, revoke the interest rate
(or the spread or spread multiplier used to calculate such interest rate, if
applicable) provided for in the Reset Notice and establish a higher interest
rate (or a spread or spread multiplier providing for a higher interest rate, if
applicable) for the Subsequent Interest Period by causing the Trustee to
transmit, in the manner provided for in Section 106, notice of such higher
interest rate (or such spread or spread multiplier providing for a higher
interest rate, if applicable) to the Holder of such Security. Such notice shall
be irrevocable. All Securities with respect to which the interest rate (or the
spread or spread multiplier used to calculate such interest rate, if applicable)
is reset on an Optional Reset Date, and with respect to which the Holders of
such Securities have not tendered such Securities for repayment (or have validly
revoked any such tender) pursuant to Subsection 307(h), will bear such higher
interest rate (or such spread or spread multiplier providing for a higher
interest rate, if applicable).
(h) The Holder of any such Security may have the option to elect
repayment by the Company of the principal of such Security on each Optional
Reset Date at a price equal to the principal amount thereof plus interest
accrued to such Optional Reset Date. In order to obtain repayment on an Optional
Reset Date, the Holder must follow the procedures set forth in Article Thirteen
for repayment at the option of Holders except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to such Optional Reset Date and except that, if the Holder has tendered any
Security for repayment pursuant to the Reset Notice, the Holder may, by written
notice to the Trustee, revoke such tender or repayment until the close of
business on the tenth day before such Optional Reset Date.
(i) Subject to the foregoing provisions of this Section and Section
305, each Security delivered under this Indenture upon registration of transfer
of or in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Section 308. Optional Extension of Maturity.
------------------------------
(a) The provisions of this Section 308 may be made applicable to any
series of Securities pursuant to Section 301 (with such modifications, additions
or substitutions as may be specified pursuant to such Section 301). The Stated
Maturity of any Security of such series may be extended at the option of the
Company for the period or periods specified on the face of such Security (each
an "Extension Period") up to but not beyond the date (the "Final Maturity") set
forth on the face of such Security. The Company may exercise such option with
respect to any Security by notifying the Trustee of such exercise at least 45
but not more than 60 days prior to the Stated Maturity of such Security in
effect prior to the exercise of such option (the "Original Stated Maturity"). If
the Company exercises such option, the Trustee shall transmit, in the manner
provided for in Section 106, to the Holder of such Security not later than 40
days prior to the Original Stated Maturity a notice (the "Extension Notice")
indicating (i) the election of the Company to extend the Stated Maturity, (ii)
the new Stated Maturity, (iii) the interest rate (or spread, spread multiplier
or other formula used to calculate such interest rate, if applicable), if any,
38
applicable to the Extension Period and (iv) the provisions, if any, for
redemption during such Extension Period. Upon the Trustee's transmittal of the
Extension Notice, the Stated Maturity of such Security shall be extended
automatically and, except as modified by the Extension Notice and as described
in Subsection (b) of this Section, such Security will have the same terms as
prior to the transmittal of such Extension Notice.
(b) Notwithstanding the foregoing, not later than 20 days before the
Original Stated Maturity of such Security, the Company may, at its option,
revoke the interest rate (or spread, spread multiplier or other formula used to
calculate such interest rate, if applicable) provided for in the Extension
Notice and establish a higher interest rate (or spread, spread multiplier or
other formula used to calculate such higher interest rate, if applicable) for
the Extension Period by causing the Trustee to transmit, in the manner provided
for in Section 106, notice of such higher interest rate (or spread, spread
multiplier or other formula used to calculate such interest rate, if applicable)
to the Holder of such Security. Such notice shall be irrevocable. All Securities
with respect to which the Stated Maturity is extended will bear such higher
interest rate.
(c) If the Company extends the Stated Maturity of any Security, the
Holder will have the option to elect repayment of such Security by the Company
on the Original Stated Maturity at a price equal to the principal amount
thereof, plus interest accrued to such date. In order to obtain repayment on the
Original Stated Maturity once the Company has extended the Stated Maturity
thereof, the Holder must follow the procedures set forth in Article Thirteen for
repayment at the option of Holders, except that the period for delivery or
notification to the Trustee shall be at least 25 but not more than 35 days prior
to the Original Stated Maturity and except that, if the Holder has tendered any
Security for repayment pursuant to an Extension Notice, the Holder may by
written notice to the Trustee revoke such tender for repayment until the close
of business on the tenth day before the Original Stated Maturity.
Section 309. Persons Deemed Owners.
---------------------
(a) Prior to due presentment of a Registered Security for registration
of transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Registered Security is
registered as the owner of such Registered Security for the purpose of receiving
payment of principal of (and premium, if any) and (subject to Sections 305 and
307) interest, if any, on such Registered Security and for all other purposes
whatsoever, whether or not such Registered Security be overdue, and none of the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
(b) Title to any Bearer Security and any coupons appertaining thereto
shall pass by delivery. The Company, the Trustee and any agent of the Company,
or the Trustee may treat the bearer of any Bearer Security and the bearer of any
coupon as the absolute owner of such Security or coupon for the purpose of
receiving payment thereof or on account thereof and for all other purposes
whatsoever, whether or not such Security or coupon be overdue, and none of the
39
Company, the Trustee nor any agent of the Company, or the Trustee shall be
affected by notice to the contrary.
(c) None of the Company, the Trustee, any Paying Agent or the Security
Registrar will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests of a Security in global form or for maintaining, supervising or
reviewing any records relating to such beneficial ownership interests.
(d) Notwithstanding the foregoing, with respect to any global
Security, nothing herein shall prevent the Company, the Trustee, or any agent of
the Company, or the Trustee, from giving effect to any written certification,
proxy or other authorization furnished by any depositary, as a Holder, with
respect to such global Security or impair, as between such depositary and owners
of beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
Section 310. Cancellation.
------------
(a) All Securities and coupons surrendered for payment, redemption,
repayment at the option of the Holder, registration of transfer or exchange or
for credit against any sinking fund payment shall, if surrendered to any Person
other than the Trustee, be delivered to the Trustee, and any such Securities and
coupons and Securities and coupons surrendered directly to the Trustee for any
such purpose shall be promptly cancelled by it. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
whatsoever, and may deliver to the Trustee (or to any other Person for delivery
to the Trustee) for cancellation any Securities previously authenticated
hereunder which the Company has not issued and sold, and all Securities so
delivered shall be promptly cancelled by the Trustee. If the Company shall so
acquire any of the Securities, however, such acquisition shall not operate as a
redemption or satisfaction of the indebtedness represented by such Securities
unless and until the same are surrendered to the Trustee for cancellation. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section, except as expressly permitted by this
Indenture. Cancelled Securities and coupons held by the Trustee shall be
disposed of by the Trustee in its customary manner unless by a Company Order the
Company directs that cancelled Securities be returned to the Company.
Section 311. Computation of Interest.
-----------------------
Except as otherwise specified as contemplated by Section 301 with
respect to Securities of any series, interest, if any, on the Securities of each
series shall be computed on the basis of a 360-day year of twelve 30-day months.
Section 312. Currency and Manner of Payments in Respect of Securities.
--------------------------------------------------------
(a) Unless otherwise specified with respect to any Securities pursuant
to Section 301, with respect to Registered Securities of any series not
40
permitting the election provided for in Subsection (b) of this Section or the
Holders of which have not made the election provided for in Subsection (b) of
this Section, and with respect to Bearer Securities of any series, except as
provided in Subsection (d) of this Section, payment of the principal of (and
premium, if any) and interest, if any, on any Registered or Bearer Security of
such series will be made in the Currency in which such Registered Security or
Bearer Security, as the case may be, is payable. The provisions of this Section
312 may be modified or superseded with respect to any Securities pursuant to
Section 301.
(b) It may be provided pursuant to Section 301 with respect to
Registered Securities of any series that Holders shall have the option, subject
to Subsection (d) and (e) of this Section, to receive payments of principal of
(or premium, if any) or interest, if any, on such Registered Securities in any
of the Currencies which may be designated for such election by delivering to the
Trustee a written election with signature guarantees and in the applicable form
established pursuant to Section 301, not later than the close of business on the
Election Date immediately preceding the applicable payment date. If a Holder so
elects to receive such payments in any such Currency, such election will remain
in effect for such Holder or any transferee of such Holder until changed by such
Holder or such transferee by written notice to the Trustee (but any such change
must be made not later than the close of business on the Election Date
immediately preceding the next payment date to be effective for the payment to
be made on such payment date and no such change of election may be made with
respect to payments to be made on any Registered Security of such series with
respect to which an Event of Default has occurred or with respect to which the
Company has deposited funds pursuant to Article Four or Fourteen or with respect
to which a notice of redemption has been given by the Company or a notice of
option to elect repayment has been sent by such Holder or such transferee). Any
Holder of any such Registered Security who shall not have delivered any such
election to the Trustee of such series of Registered Securities not later than
the close of business on the applicable Election Date will be paid the amount
due on the applicable payment date in the relevant Currency as provided in
Subsection (a) of this Section. The Trustee shall notify the Exchange Rate Agent
as soon as practicable after the Election Date of the aggregate principal amount
of Registered Securities for which Holders have made such written election.
(c) Unless otherwise specified pursuant to Section 301, if the
election referred to in Subsection (b) of this Section has been provided for
pursuant to Section 301, then, unless otherwise specified pursuant to Section
301, not later than the fourth Business Day after the Election Date for each
payment date for Registered Securities of any series, the Exchange Rate Agent
will deliver to the Company a written notice specifying the Currency in which
Registered Securities of such series are payable, the respective aggregate
amounts of principal of (and premium, if any) and interest, if any, on the
Registered Securities to be paid on such payment date, specifying the amounts in
such Currency so payable in respect of the Registered Securities as to which the
Holders of Registered Securities of such Series shall have elected to be paid in
another Currency as provided in Subsection (b) of this Section. If the election
referred to in Subsection (b) of this Section has been provided for pursuant to
Section 301 and if at least one Holder has made such election, then, unless
41
otherwise specified pursuant to Section 301, on the second Business Day
preceding such payment date the Company will deliver to the Trustee for such
series of Registered Securities an Exchange Rate Officer's Certificate in
respect of the Dollar or Foreign Currency payments to be made on such payment
date. Unless otherwise specified pursuant to Section 301, the Dollar or Foreign
Currency amount receivable by Holders of Registered Securities who have elected
payment in a Currency as provided in Subsection (b) of this Section shall be
determined by the Company on the basis of the applicable Market Exchange Rate in
effect on the second Business Day (the "Valuation Date") immediately preceding
each payment date, and such determination shall be conclusive and binding for
all purposes, absent manifest error.
(d) If a Conversion Event occurs with respect to a Foreign Currency in
which any of the Securities are denominated or payable other than pursuant to an
election provided for pursuant to Subsection (b) of this Section, then with
respect to each date for the payment of principal of (and premium, if any) and
interest, if any, on the applicable Securities denominated or payable in such
Foreign Currency occurring after the last date on which such Foreign Currency
was used (the "Conversion Date"), the Dollar shall be the currency of payment
for use on each such payment date. Unless otherwise specified pursuant to
Section 301, the Dollar amount to be paid by the Company to the Trustee and by
such Trustee or any Paying Agent to the Holders of such Securities with respect
to such payment date shall be, in the case of a Foreign Currency other than a
currency unit, the Dollar Equivalent of the Foreign Currency or, in the case of
a currency unit, the Dollar Equivalent of the Currency Unit, in each case as
determined by the Exchange Rate Agent in the manner provided in Subsection (f)
or (g) of this Section.
(e) Unless otherwise specified pursuant to Section 301, if the Holder
of a Registered Security denominated in any Currency shall have elected to be
paid in another Currency as provided in Subsection (b) of this Section, and a
Conversion Event occurs with respect to such elected Currency, such Holder shall
receive payment in the Currency in which payment would have been made in the
absence of such election; and if a Conversion Event occurs with respect to the
Currency in which payment would have been made in the absence of such election,
such Holder shall receive payment in Dollars as provided in Subsection (d) of
this Section.
(f) The "Dollar Equivalent of the Foreign Currency" shall be
determined by the Exchange Rate Agent and shall be obtained for each subsequent
payment date by converting the specified Foreign Currency into Dollars at the
Market Exchange Rate on the Conversion Date.
(g) The "Dollar Equivalent of the Currency Unit" shall be determined
by the Exchange Rate Agent and subject to the provisions of Subsection (h) of
this Section shall be the sum of each amount obtained by converting the
Specified Amount of each Component Currency into Dollars at the Market Exchange
Rate for such Component Currency on the Valuation Date with respect to each
payment.
(h) For purposes of this Section 312, the following terms shall have
the following meanings:
42
A "Component Currency" shall mean any currency which, on the
Conversion Date, was a component currency of the relevant currency unit,
including, but not limited to, the euro.
A "Specified Amount" of a Component Currency shall mean the number of
units of such Component Currency or fractions thereof which were represented in
the relevant currency unit, including, but not limited to, the euro, on the
Conversion Date. If after the Conversion Date the official unit of any Component
Currency is altered by way of combination or subdivision, the Specified Amount
of such Component Currency shall be divided or multiplied in the same
proportion. If after the Conversion Date two or more Component Currencies are
consolidated into a single Currency, the respective Specified Amounts of such
Component Currencies shall be replaced by an amount in such single Currency
equal to the sum of the respective Specified Amounts of such consolidated
Component Currencies expressed in such single Currency, and such amount shall
thereafter be a Specified Amount and such single Currency shall thereafter be a
Component Currency. If after the Conversion Date any Component Currency shall be
divided into two or more currencies, the Specified Amount of such Component
Currency shall be replaced by amounts of such two or more currencies, having an
aggregate Dollar Equivalent value at the Market Exchange Rate on the date of
such replacement equal to the Dollar Equivalent of the Specified Amount of such
former Component Currency at the Market Exchange Rate immediately before such
division, and such amounts shall thereafter be Specified Amounts and such
currencies shall thereafter be Component Currencies. If, after the Conversion
Date of the relevant currency unit, including, but not limited to, the euro, a
Conversion Event (other than any event referred to above in this definition of
"Specified Amount") occurs with respect to any Component Currency of such
currency unit and is continuing on the applicable Valuation Date, the Specified
Amount of such Component Currency shall, for purposes of calculating the Dollar
Equivalent of the Currency Unit, be converted into Dollars at the Market
Exchange Rate in effect on the Conversion Date of such Component Currency.
"Election Date" shall mean the Regular Record Date for the applicable
series of Registered Securities or at least 16 days prior to Maturity, as the
case may be, or such other prior date for any series of Registered Securities as
specified pursuant to clause 13 of Section 301 by which the written election
referred to in Subsection 312(b) may be made.
(i) All decisions and determinations of the Exchange Rate Agent
regarding the Dollar Equivalent of the Foreign Currency, the Dollar Equivalent
of the Currency Unit, the Market Exchange Rate and changes in the Specified
Amounts as specified above shall be in its sole discretion and shall, in the
absence of manifest error, be conclusive for all purposes and irrevocably
binding upon the Company, the Trustee and all Holders of such Securities
denominated or payable in the relevant Currency. The Exchange Rate Agent shall
promptly give written notice to the Company and the Trustee of any such decision
or determination.
(j) In the event that the Company determines in good faith that a
Conversion Event has occurred with respect to a Foreign Currency, the Company
43
will immediately give written notice thereof to the Trustee and to the Exchange
Rate Agent (and such Trustee will promptly thereafter give notice in the manner
provided for in Section 106 to the affected Holders) specifying the Conversion
Date. In the event the Company so determines that a Conversion Event has
occurred with respect to the euro or any other currency unit in which Securities
are denominated or payable, the Company will immediately give written notice
thereof to the Trustee and to the Exchange Rate Agent (and such Trustee will
promptly thereafter give notice in the manner provided in Section 106 to the
affected Holders) specifying the Conversion Date and the Specified Amount of
each Component Currency on the Conversion Date. In the event the Company
determines in good faith that any subsequent change in any Component Currency as
set forth in the definition of Specified Amount above has occurred, the Company
will similarly give written notice to the Trustee and the Exchange Rate Agent.
(k) The Trustee of the appropriate series of Securities shall be fully
justified and protected in conclusively relying and acting upon information
received by it from the Company and the Exchange Rate Agent and shall not
otherwise have any duty or obligation to determine the accuracy or validity of
such information independent of the Company or the Exchange Rate Agent.
Section 313. Appointment and Resignation of Successor Exchange Rate Agent.
------------------------------------------------------------
(a) Unless otherwise specified pursuant to Section 301, if and so long
as the Securities of any series (1) are denominated in a Foreign Currency or (2)
may be payable in a Foreign Currency, or so long as it is required under any
other provision of this Indenture, then the Company will maintain with respect
to each such series of Securities, or as so required, at least one Exchange Rate
Agent. The Company will cause the Exchange Rate Agent to make the necessary
foreign exchange determinations at the time and in the manner specified pursuant
to Section 301 for the purpose of determining the applicable rate of exchange
and, if applicable, for the purpose of converting the issued Foreign Currency
into the applicable payment Currency for the payment of principal (and premium,
if any) and interest, if any, pursuant to Section 312.
(b) No resignation of the Exchange Rate Agent and no appointment of a
successor Exchange Rate Agent pursuant to this Section shall become effective
until the acceptance of appointment by the successor Exchange Rate Agent as
evidenced by a written instrument delivered to the Company and the Trustee of
the appropriate series of Securities accepting such appointment executed by the
successor Exchange Rate Agent.
(c) If the Exchange Rate Agent shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of the Exchange
Rate Agent for any cause, with respect to the Securities of one or more series,
the Company, by or pursuant to a Board Resolution, shall promptly appoint a
successor Exchange Rate Agent or Exchange Rate Agents with respect to the
Securities of that or those series (it being understood that any such successor
Exchange Rate Agent may be appointed with respect to the Securities of one or
more or all of such series and that, unless otherwise specified pursuant to
Section 301, at any time there shall only be one Exchange Rate Agent with
44
respect to the Securities of any particular series that are originally issued by
the Company on the same date and that are initially denominated and/or payable
in the same Currency).
Section 314. CUSIP Numbers.
-------------
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that, any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
---------------------------------------
(a) Unless otherwise specified pursuant to Section 301, this Indenture
shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any
surviving rights of registration of transfer or exchange of Securities of such
series expressly provided for herein or pursuant hereto and any right to receive
Additional Amounts, as provided in Section 1005), and the Trustee, upon receipt
of a Company Order, and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture as to
such series when
(1) either
(i) all Securities of such series theretofore
authenticated and delivered and all coupons, if any,
appertaining thereto (other than (A) coupons appertaining to
Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender
is not required or has been waived as provided in Section
305, (B)Securities and coupons of such series which have
been destroyed, lost or stolen and which have been replaced
or paid as provided in Section 306, (C)coupons appertaining
to Securities called for redemption and maturing after the
relevant Redemption Date, whose surrender has been waived as
provided in Section 1106, and (D) Securities and coupons of
such series for whose payment money has theretofore been
deposited with the Trustee or any Paying Agent in trust or
segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as
provided in Section 1003) have been delivered to the Trustee
for cancellation; or
45
(ii) all Securities of such series and, in the
case of subclause (A) or (B) of this clause (ii), any
coupons appertaining thereto not theretofore delivered to
the Trustee for cancellation,
(A) have become due and payable, or
(B) will become due and payable at their Stated
Maturity within one year, or
(C) if redeemable at the option of the Company, are to
be called for redemption within one year under
arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in
the name, and at the expense, of the Company, and
the Company, in the case of subclauses (A), (B) or
(C) of this clause (ii), has irrevocably deposited
or caused to be deposited with the Trustee as
trust funds in trust for such purpose an amount in
the Currency in which the Securities of such
series are payable, sufficient to pay and
discharge the entire indebtedness on such
Securities and such coupons not theretofore
delivered to the Trustee for cancellation,
including the principal (and premium, if any) and
interest, if any, to the date of such deposit (in
the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption
Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction
and discharge of this Indenture as to such series have been complied
with.
(b) Notwithstanding the satisfaction and discharge of this Indenture,
the obligations of the Company to the Trustee and any predecessor Trustee under
Section 606, the obligations of the Company to any Authenticating Agent under
Section 611 if money shall have been deposited with the Trustee pursuant to
clause (1) of Subsection 401(a), the obligations of the Trustee under Section
402 and Subsection 1003(d) and the obligations of the Company and the Trustee
with respect to Securities of such series under Sections 305, 306, 1002 and
1005, with respect to the payment of Additional Amounts, if any, with respect to
any rights of Holders to require the Company to repay such Securities as
contemplated by Section 1301 and with respect to any rights of Holders to
convert or exchange such Securities into other Securities, shall survive such
46
satisfaction and discharge. These obligations shall continue to be governed and
construed in accordance with Section 111.
Section 402. Application of Trust Funds.
--------------------------
Subject to the provisions of Subsection 1003(d), all money deposited
with the Trustee pursuant to Section 401 shall be held in trust and applied by
it, in accordance with the provisions of the Securities, the coupons and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest, if any, for whose payment such money has been deposited with
or received by the Trustee, but such money need not be segregated from other
funds except to the extent required by law.
ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
-----------------
(a) "Event of Default", wherever used herein with respect to any
particular series of Securities, means any one of the following events as such
events may be otherwise amended in accordance with Section 301 (whatever the
reason for such Event of Default and whether or not it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of any interest upon, or any
Additional Amount payable in respect of, any Security of that series
or of any coupon appertaining thereto, when such interest or coupon
becomes due and payable, and continuance of such default for a period
of 30 days; or
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant
or agreement of the Company in this Indenture with respect to any
Security of that series (other than a covenant or agreement a default
in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach
for a period of 60 days after there has been given, by registered or
certified mail, to the Company by the Trustee or to the Company and
the Trustee by the Holders of at least 25% in principal amount of the
Outstanding Securities of that series a written notice specifying such
47
default or breach and requiring it to be remedied and stating that
such notice is a "Notice of Default" hereunder; or
(5) the Company pursuant to or within the meaning of any
Bankruptcy Law:
(i) commences a voluntary case or proceedings,
(ii) consents to the entry of an order for relief
against it in an involuntary case or proceedings,
(iii) consents to the appointment of a Custodian
of it or for all or substantially all of its property,
(iv) makes a general assignment for the benefit of
its creditors, or
(v) issues a public announcement admitting its
inability to pay its debts generally as they become due; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(i) is for relief against the Company in an
involuntary case,
(ii) appoints a Custodian of the Company or for
all or substantially all of its property, or
(iii) orders the winding-up or liquidation of the
Company.
(iv) and the order or decree remains unstayed and
in effect for 90 days; or
(7) any other Event of Default provided with respect to
Securities of that series.
(b) The term "Bankruptcy Law" means title 11, U.S. Code, as amended
from time to time, or any similar foreign, Federal or State law for the relief
of debtors. The term "Custodian" means any custodian, receiver, trustee,
assignee, liquidator or other similar official under any Bankruptcy Law.
Section 502. Acceleration of Maturity; Rescission and Annulment.
--------------------------------------------------
(a) If an Event of Default (other than an Event of Default specified
in clauses (5) and (6) of Subsection 501(a) with respect to the Company) with
respect to Securities of any series at the time Outstanding occurs and is
continuing, then and in every such case the Trustee or the Holders of not less
48
than 25% in principal amount of the Outstanding Securities of that series may
declare the principal (or, if any Securities are Original Issue Discount
Securities or Indexed Securities, such portion of the principal amount as may be
specified in the terms of that series) plus accrued and unpaid interest of all
the Securities of that series to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal amount plus accrued and unpaid interests or
specified portion thereof shall become immediately due and payable. If an Event
of Default specified in clauses (5) and (6) of Subsection 501(a) with respect to
the Company occurs, the amounts described above with respect to the Outstanding
Securities of all series shall ipso facto become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holder. Upon payment of such principal and interest, all of the Company's
obligations under the Securities of such Series and this Indenture, other than
obligations under Section 606, shall terminate.
(b) At any time after such a declaration of acceleration with respect
to Securities of any series has been made and before a judgment or decree for
payment of the money due has been obtained by the Trustee as hereinafter
provided in this Article, the Holders of a majority in principal amount of the
Outstanding Securities of that series, by written notice to the Company and the
Trustee, may rescind and annul such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient in cash to pay all principal, interest and Additional
Amounts which have become due other than by such declaration of
acceleration, interest or any such overdue amounts, and amounts owing
the Trustee;
(2) all Events of Default with respect to Securities of that
series, other than the nonpayment of the principal of (or premium, if
any) or interest on Securities of that series which have become due
solely by such declaration of acceleration, have been cured or waived
as provided in Section 514; and
(3) such rescission would not conflict with any judgment or
decree of a court of competent jurisdiction.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
Section 503. Collection of Indebtedness and Suits for Enforcement
----------------------------------------------------
by Trustee.
----------
(a) The Company covenants that if:
(1) default is made in the payment of any installment of
interest or Additional Amounts on any Security of any series and any
related coupon when such interest or Additional Amounts becomes due
and payable and such default continues for a period of 30 days, or
49
(2) default is made in the payment of the principal of (or
premium, if any, on) any Security of any series at its Maturity,
then the Company will, upon demand of the Trustee, pay to the Trustee, for the
benefit of the Holders of Securities of such series and coupons, the whole
amount then due and payable on such Securities and coupons for principal (and
premium, if any) and interest, if any, with interest upon any overdue principal
(and premium, if any) and, to the extent that payment of such interest shall be
legally enforceable, upon any overdue installments of interest, if any, at the
rate or rates borne by or provided for in such Securities, and, in addition
thereto, such further amount as shall be sufficient to cover the costs and
expenses of collection, including the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel.
(b) If the Company fails to pay such amounts forthwith upon such
demand, the Trustee, in its own name and as trustee of an express trust, may
institute a judicial proceeding for the collection of the sums so due and
unpaid, and may prosecute such proceeding to judgment or final decree, and may
enforce the same against the Company or any other obligor upon Securities of
such series and collect the moneys adjudged or decreed to be payable in the
manner provided by law out of the property of the Company or any other obligor
upon such Securities of such series, wherever situated.
(c) If an Event of Default with respect to Securities of any series
occurs and is continuing, the Trustee may in its discretion proceed to protect
and enforce its rights and the rights of the Holders of Securities of such
series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem necessary to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
Section 504. Trustee May File Proofs of Claim.
--------------------------------
(a) In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition or
other judicial proceeding relative to the Company, or any other obligor upon the
Securities or the property of the Company, or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
of any series shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any overdue principal, premium, if
any, or interest) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(1) to file and prove a claim for the whole amount of
principal (and premium, if any, or in the case of Original Issue
Discount Securities or Indexed Securities, such portion of the
principal as may be provided for in the terms thereof) and interest,
if any, owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to
have the claims of the Trustee (including any claim for the reasonable
50
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial
proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or
other similar official) in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee, and in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due to it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, and
any other amounts due the Trustee under Section 606.
(b) Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder, any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or coupons or the rights of any Holder thereof, or to authorize the
Trustee to vote in respect of the claim of any Holder of a Security or coupon in
any such proceeding.
Section 505. Trustee May Enforce Claims Without Possession of Securities
-----------------------------------------------------------
or Coupons.
----------
All rights of action and claims under this Indenture or the Securities
or coupons may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or coupons or the production thereof in any proceeding
relating thereto, and any such proceeding instituted by the Trustee shall be
brought in its own name as trustee of an express trust, and any recovery of
judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities and coupons in respect
of which such judgment has been recovered.
Section 506. Application of Money Collected.
------------------------------
Any money collected by the Trustee pursuant to this Article shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal (or premium,
if any) or interest, if any, upon presentation of the Securities or coupons, or
both, as the case may be, and the notation thereon of the payment if only
partially paid and upon surrender thereof if fully paid:
First: To the payment of all amounts due the Trustee and any
predecessor Trustee under Section 606;
Second: To the payment of the amounts then due and unpaid
upon the Securities and coupons for principal (and premium, if any)
and interest, if any, in respect of which or for the benefit of which
such money has been collected, ratably, without preference or priority
of any kind, according to the aggregate amounts due and payable on
51
such Securities and coupons for principal (and premium, if any) and
interest, if any, respectively; and
Third: To the payment of the remainder, if any, to the
Company.
Section 507. Limitation on Suits.
-------------------
No Holder of any Security of any series or any related
coupon shall have any right to institute any proceeding, judicial or
otherwise, with respect to this Indenture, or for the appointment of a
receiver or trustee, or for any other remedy hereunder, unless:
(a) such Holder has previously given written notice to the Trustee of
a continuing Event of Default with respect to the Securities of that series;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Securities of that series shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its own
name as Trustee hereunder;
(c) such Holder or Holders have offered to the Trustee reasonable
indemnity satisfactory to it against the costs, expenses and liabilities to be
incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding; and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a majority in
principal amount of the Outstanding Securities of that series;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium
------------------------------------------------------------
and Interest and Additional Amounts, if Any.
-------------------------------------------
Notwithstanding any other provision in this Indenture, the Holder of
any Security or coupon shall have the right which is absolute and unconditional
to receive payment of the principal of (and premium, if any) and (subject to
Sections 305 and 307) interest, if any, and Additional Amounts, if any, on such
Security or payment of such coupon on the respective due dates expressed in such
Security or coupon (or, in the case of redemption, on the Redemption Date) and
to institute suit for the enforcement of any such payment, and such rights shall
not be impaired without the consent of such Holder.
52
Section 509. Restoration of Rights and Remedies.
----------------------------------
If the Trustee or any Holder of a Security or coupon has instituted
any proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case the Company, the Trustee and the Holders of Securities and coupons shall,
subject to any determination in such proceeding, be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 510. Rights and Remedies Cumulative.
------------------------------
Except as otherwise provided with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities or coupons in the
last paragraph of Subsection 306(f), no right or remedy herein conferred upon or
reserved to the Trustee or to the Holders of Securities or coupons is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 511. Delay or Omission Not Waiver.
----------------------------
No delay or omission of the Trustee or of any Holder of any Security
or coupon to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities or coupons, as the case may be.
Section 512. Control by Holders of Securities.
--------------------------------
With respect to any series, the Holders of not less than a majority in
principal amount of the Outstanding Securities of such series shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or exercising any trust or power conferred on
the Trustee with respect to the Securities of such series, provided that
(a) such direction shall not be in conflict with any rule of law or
with this Indenture,
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
53
(c) the Trustee need not take any action which might involve it in
personal liability or be unjustly prejudicial to the Holders of Securities of
such series not consenting.
Section 513. Undertaking for Costs.
---------------------
All parties to this Indenture agree that in any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as a Trustee, a court in its
discretion may require the filing by any party litigant in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorney's fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant, provided that this
Section 513 shall not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 508 hereof, or a suit by Holders of more than 10% in
principal amount of the then Outstanding Securities.
Section 514. Waiver of Past Defaults.
-----------------------
(a) The Holders of not less than a majority in principal amount of the
Outstanding Securities of any series may on behalf of the Holders of all the
Securities of such series and any related coupons waive any past default
hereunder with respect to such series and its consequences, except a default
(1) in the payment of the principal of (or premium, if any)
or interest, if any, or Additional Amounts on any Security of such
series or any related coupons, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security of such series affected.
(b) Upon any such waiver, such default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
Section 515. Waiver of Usury, Stay or Extension Laws.
---------------------------------------
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law or any usury or
other law wherever enacted, now or at any time hereafter in force, which may
affect the covenants or the performance of this Indenture; and the Company (to
the extent that it may lawfully do so) hereby expressly waives all benefit or
advantage of any such law, and covenants that it will not hinder, delay or
impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been
enacted.
54
ARTICLE SIX
THE TRUSTEE
Section 601. Notice of Defaults.
------------------
Within five days after the earlier of receipt from the Company of
notice of the occurrence of a Default or Event of Default hereunder or the date
such occurrence hereunder actually becomes known to a Responsible Officer of the
Trustee, the Trustee shall transmit to all Holders of Securities of such series,
in the manner and to the extent provided in TIA Section 313(c), notice of such
Default hereunder known to the Trustee, unless such Default shall have been
cured or waived; provided, that, except in the case of a Default in the payment
of the principal of (or premium, if any) or interest, if any, on any Security of
such series, or in the payment of any sinking or purchase fund installment with
respect to the Securities of such series, the Trustee shall be protected in
withholding such notice if and so long as the board of directors, the executive
committee or a trust committee of directors and/or Responsible Officers of the
Trustee in good faith determines that the withholding of such notice is in the
interests of the Holders of the Securities and coupons of such series; and
provided further that in the case of any Default or breach of the character
specified in clause (4) of Subsection 501(a) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given until at least
60 days after the occurrence thereof unless otherwise specified in accordance
with Section 301.
Section 602. Certain Rights of Trustee.
-------------------------
(a) Subject to the provisions of TIA Sections 315(a) through 315(d):
(1) The Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee.
(2) The Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form) believed by it to
be genuine and to have been signed or presented by the proper party or
parties.
(3) Any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(other than delivery of any Security, together with any coupons
appertaining thereto, to the Trustee for authentication and delivery
pursuant to Section 303 which shall be sufficiently evidenced as
provided therein) and any resolution of the Board of Directors may be
sufficiently evidenced by a Board Resolution.
55
(4) The Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless it shall
be proved that the Trustee was negligent in ascertaining the pertinent
facts.
(5) The Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Securities of any series, determined as provided in
Sections 101 and 104.
(6) Whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely upon a Board Resolution,
an Opinion of Counsel or an Officers' Certificate.
(7) The Trustee may consult with counsel of its choosing and
the advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
(8) The Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction.
(9) The Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney but in the
case of any certificate or opinion specifically required by the
Indenture to be delivered to the Trustee, the Trustee shall have a
duty to examine the same to determine whether they conform to the
Indenture requirements.
(10) The Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys and the Trustee shall not be responsible
56
for any misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder.
(11) The Trustee shall not be liable for any action taken,
suffered or omitted by it in good faith and believed by it to be
authorized or within the discretion or rights or powers conferred upon
it by this Indenture other than any liabilities arising out of the
negligence of the Trustee.
(12) The rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable by,
the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
(13) The Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or
titles of officers authorized at such time to take specified actions
pursuant to this Indenture, which Officers' Certificate may be signed
by any person authorized to sign an Officers' Certificate, including
any person specified as so authorized in any such certificate
previously delivered and not superseded.
(b) The Trustee shall not be required to expend or risk its own funds
or otherwise incur any financial liability in the performance of any of its
duties hereunder, or in the exercise of any of its rights or powers, if it shall
have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Section 603. Not Responsible for Recitals or Issuance of Securities.
------------------------------------------------------
The recitals contained herein and in the Securities, except the
Trustee's certificate of authentication, and in any coupons shall be taken as
the statements of the Company, and neither the Trustee nor any Authenticating
Agent assumes any responsibility for their correctness. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Securities or coupons, except that the Trustee represents that it is duly
authorized to execute and deliver this Indenture, authenticate the Securities
and perform its obligations hereunder and that the statements made by it in a
Statement of Eligibility on Form T-1 supplied to the Company are true and
accurate, subject to the qualifications set forth therein. Neither the Trustee
nor any Authenticating Agent shall be accountable for the use or application by
the Company of Securities or the proceeds thereof.
Section 604. May Hold Securities.
-------------------
The Trustee, any Paying Agent, Security Registrar, Authenticating
Agent or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Securities and coupons and, subject
57
to TIA Sections 310(b) and 311, may otherwise deal with the Company with the
same rights it would have if it were not Trustee, Paying Agent, Security
Registrar, Authenticating Agent or such other agent.
Section 605. Money Held in Trust.
-------------------
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company.
Section 606. Compensation and Reimbursement.
------------------------------
(a) The Company agrees:
(1) to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as shall be
agreed upon in writing from time to time (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the expenses
and disbursements of its agents and counsel), except any such expense,
disbursement or advance as shall be determined to have been caused by
its own negligence or willful misconduct; and
(3) to indemnify each of the Trustee and any predecessor
Trustee for, and to hold it harmless against, any and all loss,
damage, claims, liability or expense incurred without negligence or
bad faith on its own part, arising out of or in connection with the
acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any claim
(whether asserted by the Company or any Holder or any other Person) or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
(b) As security for the performance of the obligations of the Company
under this Section, the Trustee shall have a claim prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of (or premium, if any) or interest,
if any, on particular Securities or any coupons.
(c) When the Trustee incurs expenses or renders services after an
Event of Default specified in clause (5) or (6) of Subsection 501(a) occurs, the
expenses and compensation for the services are intended to constitute expenses
of administration under any Bankruptcy Law.
58
Section 607. Corporate Trustee Required; Eligibility.
---------------------------------------
There shall at all times be a Trustee hereunder which shall be
eligible to act as Trustee under TIA Section 310(a)(1) and shall have a combined
capital and surplus of at least $50,000,000. If such corporation publishes
reports of condition at least annually, pursuant to law or the requirements of
Federal, State, Territorial or District of Columbia supervising or examining
authority, then for the purposes of this Section, the combined capital and
surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. If at
any time the Trustee shall cease to be eligible in accordance with the
provisions of this Section, it shall resign immediately in the manner and with
the effect hereinafter specified in this Article.
Section 608. Resignation and Removal; Appointment of Successor.
-------------------------------------------------
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 609.
(b) The Trustee may resign at any time with respect to the Securities
of one or more series by giving written notice thereof to the Company.
(c) The Trustee may be removed at any time with respect to the
Securities of any series by Act of the Holders of a majority in principal amount
of the Outstanding Securities of such series delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with the provisions of
TIA Section 310(b) after written request therefor by the Company or by
any Holder of a Security who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under Section 607
and shall fail to resign after written request therefor by the Company
or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation, then, in any
such case, (i) the Company by or pursuant to a Board Resolution may
remove the Trustee and appoint a successor Trustee with respect to all
Securities, or (ii) subject to TIA Section 315(e), any Holder of a
Security who has been a bona fide Holder of a Security for at least
59
six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the removal
of the Trustee with respect to all Securities and the appointment of a
successor Trustee or Trustees.
(e) If an instrument of acceptance by a successor Trustee shall not
have been delivered to the Trustee within 30 days after the giving of a notice
of resignation or the delivery of an Act of removal, the Trustee resigning or
being removed or any Holder who has been a bona fide Holder of Securities for at
least six months, may petition at the expense of the Company any court of
competent jurisdiction for the appointment of a successor Trustee.
(f) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause with
respect to the Securities of one or more series, the Company, by or pursuant to
a Board Resolution, shall promptly appoint a successor Trustee or Trustees with
respect to the Securities of that or those series (it being understood that any
such successor Trustee may be appointed with respect to the Securities of one or
more or all of such series and that at any time, except as provided in Section
613, there shall be only one Trustee with respect to the Securities of any
particular series). If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee with
respect to the Securities of any series shall be appointed by Act of the Holders
of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment, become the
successor Trustee with respect to the Securities of such series and to that
extent supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Securities of any series shall have been so
appointed by the Company or the Holders of Securities and accepted appointment
in the manner hereinafter provided, any Holder of a Security who has been a bona
fide Holder of a Security of such series for at least six months may, on behalf
of himself and all others similarly situated, petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to
Securities of such series.
(g) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Securities of any series and each appointment
of a successor Trustee with respect to the Securities of any series in the
manner provided for notices to the Holders of Securities in Section 106. Each
notice shall include the name of the successor Trustee with respect to the
Securities of such series and the address of its Corporate Trust Office.
Section 609. Acceptance of Appointment by Successor.
--------------------------------------
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Securities, every such successor Trustee shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an instrument
accepting such appointment, and thereupon the resignation or removal of the
retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights,
60
powers, trusts and duties of the retiring Trustee; but, on request of the
Company or the successor Trustee, such retiring Trustee shall, upon payment of
its charges, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee, and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder, subject nevertheless to its
claim, if any, provided for in Section 606.
(b) In case of the appointment hereunder of a successor Trustee with
respect to the Securities of one or more (but not all) series, the Company, the
retiring Trustee and each successor Trustee with respect to the Securities of
one or more series shall execute and deliver an indenture supplemental hereto
wherein each successor Trustee shall accept such appointment and which
(1) shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor
Trustee all the rights, powers, trusts and duties of the retiring
Trustee with respect to the Securities of that or those series to
which the appointment of such successor Trustee relates,
(2) if the retiring Trustee is not retiring with respect to
all Securities, shall contain such provisions as shall be deemed
necessary or desirable to confirm that all the rights, powers, trusts
and duties of the retiring Trustee with respect to the Securities of
that or those series as to which the retiring Trustee is not retiring
shall continue to be vested in the retiring Trustee, and
(3) shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee, it
being understood that nothing herein or in such supplemental indenture
shall constitute such Trustees co-trustees of the same trust and that
each such Trustee shall be trustee of a trust or trusts hereunder
separate and apart from any trust or trusts hereunder administered by
any other such Trustee; and upon the execution and delivery of such
supplemental indenture the resignation or removal of the retiring
Trustee shall become effective to the extent provided therein and each
such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of
the retiring Trustee with respect to the Securities of that or those
series to which the appointment of such successor Trustee relates;
but, on request of the Company or any successor Trustee, such retiring
Trustee shall duly assign, transfer and deliver to such successor
Trustee all property and money held by such retiring Trustee hereunder
with respect to the Securities of that or those series to which the
appointment of such successor Trustee relates.
(c) Upon request of any such successor Trustee, the Company shall
execute any and all instruments for more fully and certainly vesting in and
61
confirming to such successor Trustee all such rights, powers and trusts referred
to in Subsection (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the
time of such acceptance such successor Trustee shall be qualified and eligible
under this Article.
Section 610. Merger, Conversion, Consolidation or Succession to Business.
-----------------------------------------------------------
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise qualified and eligible under this
Article, without the execution or filing of any paper or any further act on the
part of any of the parties hereto. In case any Securities or coupons shall have
been authenticated, but not delivered, by the Trustee then in office, any
successor by merger, conversion or consolidation to such authenticating Trustee
may adopt such authentication and deliver the Securities or coupons so
authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities or coupons. In case any Securities or coupons
shall not have been authenticated by such predecessor Trustee, any such
successor Trustee may authenticate and deliver such Securities or coupons, in
either its own name or that of its predecessor Trustee, with the full force and
effect which this Indenture provides for the certificate of authentication of
the Trustee.
Section 611. Appointment of Authenticating Agent.
-----------------------------------
(a) At any time when any of the Securities remain Outstanding, the
Trustee may appoint an Authenticating Agent or Agents with respect to one or
more series of Securities which shall be authorized to act on behalf of the
Trustee to authenticate Securities of such series issued upon exchange,
registration of transfer or partial redemption thereof, and Securities so
authenticated shall be entitled to the benefits of this Indenture and shall be
valid and obligatory for all purposes as if authenticated by the Trustee
hereunder. Any such appointment shall be evidenced by an instrument in writing
signed by a Responsible Officer of the Trustee, a copy of which instrument shall
be promptly furnished to the Company. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or the
Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
reasonably acceptable to the Company and, except as may otherwise be provided
pursuant to Section 301, shall at all times be a bank or trust company or
corporation organized and doing business and in good standing under the laws of
the United States of America or of any State or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
62
examination by Federal or State authorities. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or the
requirements of the aforesaid supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
Authenticating Agent shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. In case at any
time an Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
(b) Any corporation into which an Authenticating Agent may be merged
or converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to the corporate agency or
corporate trust business of an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section, without the execution or filing of any paper or further act
on the part of the Trustee or the Authenticating Agent.
(c) An Authenticating Agent for any series of Securities may at any
time resign by giving written notice of resignation to the Trustee for such
series and to the Company. The Trustee for any series of Securities may at any
time terminate the agency of an Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee for such series may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall give
notice of such appointment to all Holders of Securities of the series with
respect to which such Authenticating Agent will serve in the manner set forth in
Section 106. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties
of its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
(d) The Company agrees to pay to each Authenticating Agent from time
to time reasonable compensation including reimbursement of its reasonable
expenses for its services under this Section.
(e) If an appointment with respect to one or more series is made
pursuant to this Section, the Securities of such series may have endorsed
thereon, in addition to or in lieu of the Trustee's certificate of
authentication, an alternate certificate of authentication substantially in the
following form:
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
63
[ ]
as Trustee
By
------------------------
as Authenticating Agent
By
------------------------
Authorized Signatory
Section 612. Conflicting Interests.
---------------------
The Trustee shall comply with the provisions of Sub-section 310(b) of
the Trust Indenture Act. [Disclosure of any Senior Indenture entered into
between the Company and the Trustee.]
Section 613. Appointment of Co-Trustee.
-------------------------
(a) For the purpose of meeting any legal requirements of any
jurisdiction in which the Company may at the time be located in connection with
the enforcement of any right or the taking of any action on behalf of the
Holders of any Securities issued hereunder, the Trustee shall have the power and
may execute and deliver all instruments necessary to appoint one or more Persons
to act as a co-trustee or co-trustees, or separate trustee or separate trustees,
such powers, duties, obligations, rights and trusts as the Trustee may consider
necessary or desirable. Each co-trustee or separate trustee hereunder shall be
required to meet the terms of eligibility as a trustee under Section 607. The
Trustee shall promptly notify the Holders and the Company of the appointment of
a co-trustee or separate trustee under this section.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(1) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations shall
be exercised and performed singly by such separate trustee or
co-trustee, but solely at the direction of the Trustee;
(2) no trustee hereunder shall be personally liable by
reason of any act or omission of any other trustee hereunder;
(3) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee;
64
(4) any notice, request or other writing given to the
Trustee shall be deemed to have been given to each of the then
separate trustees and co-trustees, as effectively as if given to each
of them. Every instrument appointing any separate trustee or
co-trustee shall refer to this Indenture and the conditions of this
Article Six. Each separate trustee and co-trustee, upon its acceptance
of the trusts conferred, shall be vested with the estates or property
specified in its instrument of appointment, either jointly with the
Trustee or separately, as may be provided therein, subject to all the
provisions of this Indenture, specifically including every provision
of this Indenture relating to the conduct of, affecting the liability
of, or affording protection or rights (including the rights to
compensation, reimbursement and indemnification hereunder) to, the
Trustee. Every such instrument shall be filed with the Trustee; and
(5) any separate trustee or co-trustee may at any time
constitute the Trustee its agent or attorney-in-fact with full power
and authority, to the extent not prohibited by law, to do any lawful
act under or in respect of this Indenture on its behalf and in its
name for the purposes of enforcing any rights or taking any other
action on behalf of the Holders of any Securities issued hereunder.
Section 614. Trustee's Application for Instructions from the Company.
-------------------------------------------------------
Any application by the Trustee for written instructions from the
Company may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
five Business Days after the date any officer of the Company actually receives
such application, unless any such officer shall have consented in writing to any
earlier date) unless prior to taking any such action (or the effective date in
the case of an omission), the Trustee shall have received written instructions
in response to such application specifying the action to be taken or omitted.
ACTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 701. Disclosure of Names and Addresses of Holders.
--------------------------------------------
(a) The Company will furnish or cause to be furnished to the Trustee:
(1) semiannually, not later than 15 days after each Regular
Record Date for Securities of each series at the time Outstanding, a
list in such form as the Trustee may reasonably require, of the names
and addresses of the Holders of Registered Securities as of such
Regular Record Date, or if there is no Regular Record Date for
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interest for such series of Securities, semiannually, upon such dates
as are set forth in the Board Resolution, Officers' Certificates
indenture supplemental hereto authorizing such series, and
(2) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
provided, that, so long as the Trustee is the Security Registrar, no such list
shall be required to be furnished.
(b) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 701 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it as provided in
Section 701 upon receipt of a new list so furnished.
(c) The rights of the Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and privileges of the Trustee, shall be as provided by the
Trust Indenture Act.
(d) Every Holder of Securities or coupons, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
the Trustee nor any Authenticating Agent nor any Paying Agent nor any Security
Registrar shall be held accountable by reason of the disclosure of any
information as to the names and addresses of the Holders of Securities in
accordance with TIA Section 312, regardless of the source from which such
information was derived, and that the Trustee shall not be held accountable by
reason of mailing any material pursuant to a request made under TIA Section
312(b).
Section 702. Reports by Trustee.
------------------
Within 60 days after May 15 of each year commencing with the first May
15 after the first issuance of Securities pursuant to this Indenture, the
Trustee shall transmit by mail to all Holders of Securities as provided in TIA
Section 313(c) a brief report dated as of such May 15 if required by TIA Section
313(a).
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange, if any, upon which
the Securities are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee of the listing or de-listing of the Securities
on any stock exchange.
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Section 703. Reports by Company.
------------------
(a) The Company will:
(1) file with the Trustee, within 15 days after the Company
is required to file the same with the Commission, copies of the annual
reports and of the information, documents, and other reports (or
copies of such portions of any of the foregoing as the Commission may
from time to time by rules and regulations prescribe) which the
Company may be required to file with the Commission pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act of 1934;
or, if the Company is not required to file information, documents or
reports pursuant to either of such Sections, then it will file with
the Trustee and the Commission, in accordance with rules and
regulations prescribed from time to time by the Commission, such of
the supplementary and periodic information, documents and reports
which may be required pursuant to Section 13 of the Securities
Exchange Act of 1934 in respect of a security listed and registered on
a national securities exchange as may be prescribed from time to time
in such rules and regulations;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and covenants
of this Indenture as may be required from time to time by such rules
and regulations; and
(3) transmit by mail to the Holders of Securities, within 30
days after the filing thereof with the Trustee, in the manner and to
the extent provided in TIA Section 313(c), such summaries of any
information, documents and reports required to be filed by the Company
pursuant to clauses (1) and (2) of this Subsection as may be required
by rules and regulations prescribed from time to time by the
Commission.
(b) Delivery of such reports, information and documents to the Trustee
pursuant to Subsection (a) of this Section is for informational purposes only
and the Trustee's receipt of such shall not constitute constructive notice of
any information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on Officers'
Certificates).
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Section 704. Calculation of Original Issue Discount.
--------------------------------------
Upon request of the Trustee, the Company shall file with the Trustee
promptly at the end of each calendar year
(a) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods), if any, accrued on Outstanding
Securities as of the end of such year and
(b) such other specific information relating to such original issue
discount as may then be relevant under the Internal Revenue Code of 1986, as
amended from time to time.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE OR TRANSFER
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
----------------------------------------------------
The Company shall not consolidate with or merge with or into
any other Person or convey or transfer its properties and assets substantially
as an entirety to any Person, unless:
(a) either the Company shall be the continuing corporation, or the
corporation (if other than the Company) formed by such consolidation or into
which the Company is merged or the Person which acquires by conveyance or
transfer the properties and assets of the Company substantially as an entirety
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, all of the
obligations of the Company under this Indenture and on all the Securities and
this Indenture;
(b) immediately after giving effect to such transaction, no Default or
Event of Default shall have occurred and be continuing; and
(c) the Company and the successor Person have delivered to the Trustee
an Officers' Certificate and an Opinion of Counsel each stating that such
consolidation, merger, conveyance or transfer and such supplemental indenture
comply with this Article and that all conditions precedent herein provided for
relating to such transaction have been complied with.
Section 802. Successor Person Substituted.
----------------------------
(a) Upon any consolidation or merger, or any conveyance or transfer of
the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor corporation formed by such
consolidation or into which the Company is merged or the successor Person to
which such conveyance or transfer is made shall succeed to, and be substituted
for, and may exercise every right and power of, the Company under this Indenture
with the same effect as if such successor had been named as the Company herein;
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and in the event of any such conveyance or transfer (except by a lease), the
Company shall be discharged from all its obligations and covenants under this
Indenture and the Securities and coupons and may be dissolved and liquidated.
(b) Such successor entity thereupon may cause to be signed, and may
issue either in its own name or in the name of the Company, any or all of the
Securities issuable hereunder which theretofore shall not have been signed by
the Company and delivered to the Trustee; and, upon the order of such successor
entity, instead of the Company, and subject to all the terms, conditions and
limitations prescribed in this Indenture, the Trustee shall authenticate and
shall deliver any Securities which previously shall have been signed and
delivered by the officers of the Company to the Trustee for authentication, and
any Securities which such successor entity thereafter shall cause to be signed
and delivered to the Trustee for that purpose. All the Securities of any series
so issued shall in all respects have the same legal rank and benefit under this
Indenture as the Securities of such series theretofore or thereafter issued in
accordance with the terms of this Indenture as though all of such Securities had
been issued at the date of the execution hereof.
(c) In case of any such merger in which the Company is not the
surviving corporation or any such consolidation, sale, lease, assignment,
transfer or conveyance, such changes in phraseology and form (but not in
substance) may be made in the Securities thereafter to be issued as may be
appropriate.
Section 803. Officers' Certificate and Opinion of Counsel.
--------------------------------------------
Any consolidation, merger, sale, conveyance, assignment, transfer or
lease permitted under Section 801 is also subject to the condition that the
Trustee shall have received an Officers' Certificate and an Opinion of Counsel
to the effect that any such consolidation, merger, sale, conveyance, transfer,
assignment or lease, and the assumption by any successor Person and any such
supplemental indenture, comply with the provisions of this Article and that all
conditions precedent herein provided for relating to such transaction have been
complied with.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
--------------------------------------------------
Without the consent of any Holders of Securities or coupons, the
Company when authorized by or pursuant to a Board Resolution, and the Trustee,
at any time and from time to time, may enter into one or more indentures
supplemental hereto, in form satisfactory to the Trustee, for any of the
following purposes:
(a) to evidence the succession of another Person to the Company and
the assumption by any such successor of the covenants of the Company herein and
in the Securities contained; or
69
(b) to add to the covenants of the Company for the benefit of the
Holders of all or any series of Securities (and if such covenants are to be for
the benefit of less than all series of Securities, stating that such covenants
are expressly being included solely for the benefit of such series) or to
surrender any right or power herein conferred upon the Company; or
(c) to add any additional Events of Default for the benefit of the
Holders of all or any series of Securities (and if such Events of Default are to
be for the benefit of less than all series of Securities, stating that such
Events of Default are expressly being included solely for the benefit of such
series); provided, that, in respect of any such additional Events of Default
such supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the case of
other defaults) or may provide for an immediate enforcement upon such default or
may limit the remedies available to the Trustee upon such default or may limit
the right of the Holders of a majority in aggregate principal amount of that or
those series of Securities to which such additional Events of Default apply to
waive such default; or
(d) to add to or change any of the provisions of this Indenture to
provide that Bearer Securities may be registrable as to principal, to change or
eliminate any restrictions on the payment of principal of or any premium or
interest on Bearer Securities, to permit Bearer Securities to be issued in
exchange for Registered Securities, to permit Bearer Securities to be issued in
exchange for Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form; provided that any
such action shall not adversely affect the interests of the Holders of
Securities of any series or any related coupons in any material respect; or
(e) to change or eliminate any of the provisions of this Indenture;
provided that any such change or elimination shall become effective only when
there is no Security Outstanding of any series created prior to the execution of
such supplemental indenture which is entitled to the benefit of such provision;
or
(f) to secure the Securities pursuant to the requirements of such
indenture supplement, if applicable; or
(g) to establish the form or terms of Securities of any series and any
related coupons as permitted by Sections 201 and 301, including the provisions
and procedures relating to Securities convertible into or exchangeable for any
securities of any Person (including the Company); or
(h) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities of one or more
series and to add to or change any of the provisions of this Indenture as shall
be necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee; or
70
(i) to close this indenture with respect to the authentication and
delivery of additional series of Securities, to cure any ambiguity, to correct
or supplement any provision herein which may be inconsistent with any other
provision herein, or to make any other provisions with respect to matters or
questions arising under this Indenture; provided that such action shall not
adversely affect the interests of the Holders of Securities of any series or any
related coupons in any material respect; or
(j) to supplement any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the defeasance and
discharge of any series of Securities pursuant to Sections 401, 1402 and 1403;
provided that any such action shall not adversely affect the interests of the
Holders of Securities of such series and any related coupons or any other series
of Securities in any material respect; or
(k) to comply with the requirements of the Commission in order to
effect or maintain the qualification of this Indenture under the TIA.
Section 902. Supplemental Indentures with Consent of Holders.
-----------------------------------------------
(a) With the consent of the Holders of not less than a majority in
principal amount of all Outstanding Securities affected by such supplemental
indenture, with each series voting separately, by Act of said Holders delivered
to the Company and the Trustee, and the Company when authorized by or pursuant
to a Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture which affects
such series of Securities or of modifying in any manner the rights of the
Holders of Securities of such series under this Indenture; provided, that, no
such supplemental indenture shall, without the consent of the Holder of each
Outstanding Security of such series affected thereby:
(1) change the Stated Maturity of the principal of (or
premium, if any, on) or any installment of principal of or interest
on, any Security, subject to the provisions of Section 308; or reduce
the principal amount thereof (or premium, if any) or the rate of
interest (or change the manner of calculation of interest) thereon, or
any Additional Amounts with respect thereto, or any premium payable
upon the redemption thereof, or change any obligation of the Company
to pay Additional Amounts pursuant to Section 1005 (except as
contemplated by Sub-section 801(a) and permitted by Sub-section
901(a)), or reduce the amount of the principal of an Original Issue
Discount Security or Indexed Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to
Section 502 or the amount thereof provable in bankruptcy pursuant to
Section 504, or adversely affect any right of repayment at the option
of the Holder of any Security, or change any Place of Payment where,
or the Currency in which, any Security or any premium or interest or
Additional Amount thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated
Maturity thereof (or, in the case of redemption or repayment at the
71
option of the Holder, on or after the Redemption Date or the Repayment
Date, as the case may be), or adversely affect any right to convert or
exchange any Security as may be provided pursuant to Section 301
herein, or
(2) reduce the percentage in principal amount of the
Outstanding Securities of any series, the consent of whose Holders is
required for any such supplemental indenture, or the consent of whose
Holders is required for any waiver with respect to such series (of
compliance with certain provisions of this Indenture or certain
defaults hereunder and their consequences) provided for in this
Indenture, or reduce the requirements of Section 1504 for quorum or
voting, or
(3) modify any of the provisions of this Section, Section
514 or Section 1007, except to increase any such percentage or to
provide that certain other provisions of this Indenture that affect
such series cannot be modified or waived without the consent of the
Holder of each Outstanding Security affected thereby, or
(4) modify any of the provisions of this Indenture relating
to the subordination of the Securities or the definitions related
thereto as they affect subordination in a manner adverse to the
Holders, or
(5) cause the Securities to be expressly subordinated to
other indebtedness of the Company.
(b) It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
(c) A supplemental indenture which changes or eliminates any covenant
or other provision of this Indenture which has expressly been included solely
for the benefit of one or more particular series of Securities, or which
modifies the rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the rights under
this Indenture of the Holders of Securities of any other series.
(d) The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Persons entitled to consent to any indenture
supplemental hereto. If a record date is fixed, the Holders at the close of
Business on such record date, or their duly designated proxies, and only such
Persons, shall be entitled to consent to such supplemental indenture, whether or
not such Holders remain Holders after such record date; provided that unless
such consent shall have become effective by virtue of the requisite percentage
having been obtained prior to the date which is 90 days after such record date,
any such consent previously given shall automatically and without further action
by any Holder be cancelled and of no further effect.
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Section 903. Execution of Supplemental Indentures.
------------------------------------
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modification thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and shall be fully protected in relying upon (subject to the provisions of
Article Six hereof), an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The Trustee
may, but shall not be obligated to, enter into any such supplemental indenture
which affects the Trustee's own rights, duties or immunities under this
Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
---------------------------------
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every Holder
of Securities theretofore or thereafter authenticated and delivered hereunder
and of any coupon appertaining thereto shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
-----------------------------------
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
--------------------------------------------------
Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to this Article may, and shall,
if required by the Trustee, bear a notation in form approved by the Trustee as
to any matter provided for in such supplemental indenture. If the Company shall
so determine, new Securities of any series so modified as to conform, in the
opinion of the Trustee and the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Securities of such series.
Section 907. Effect on Senior Indebtedness.
-----------------------------
No supplemental indenture shall adversely affect the rights of any
holder of Senior Indebtedness under Article Sixteen without the consent of such
holder.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium, if any, and Interest.
---------------------------------------------------
The Company covenants and agrees for the benefit of the Holders of
each series of Securities that it will duly and punctually pay the principal of
(and premium, if any) and interest and Additional Amounts, if any, on the
73
Securities of that series in accordance with the terms of such series of
Securities, any coupons appertaining thereto and this Indenture. Any interest
due on Bearer Securities on or before Maturity, other than Additional Amounts,
if any, payable as provided in Section 1005 in respect of principal of (or
premium, if any, on) such a Security, shall be payable only upon presentation
and surrender of the several coupons for such interest installments as are
evidenced thereby as they severally mature. Unless otherwise specified with
respect to Securities of any series pursuant to Section 301, at the option of
the Company, all payments of principal may be paid by check to the registered
Holder of the Registered Security or other person entitled thereto against
surrender of such Security or wire transfer to an account in the United States
maintained by the Payee.
Section 1002. Maintenance of Office or Agency.
-------------------------------
(a) If Securities of a series are issuable only as Registered
Securities, the Company shall maintain in each Place of Payment for any series
of Securities an office or agency where Securities of that series may be
presented or surrendered for payment, where Securities of that series may be
surrendered for registration of transfer or exchange, where Securities of that
series that are convertible or exchangeable may be surrendered for conversion or
exchange, as applicable, and where notices and demands to or upon the Company in
respect of the Securities of that series and this Indenture may be served. If
Securities of a series are issuable as Bearer Securities, the Company will
maintain:
(1) in the Borough of Manhattan, The City of New York, an
office or agency where any Registered Securities of that series may be
presented or surrendered for payment, where any Registered Securities
of that series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable, and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served and where
Bearer Securities of that series and related coupons may be presented
or surrendered for payment in the circumstances described in the
clause(2) of this Subsection (and not otherwise),
(2) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series which is located outside the
United States, an office or agency where Securities of that series and
related coupons may be presented and surrendered for payment;
provided, that, if the Securities of that series are listed on the
Luxembourg Stock Exchange or any other stock exchange located outside
the United States and such stock exchange shall so require, the
Company will maintain a Paying Agent for the Securities of that series
in Luxembourg or any other required city located outside the United
States, as the case may be, so long as the Securities of that series
are listed on such exchange, and
74
(3) subject to any laws or regulations applicable thereto,
in a Place of Payment for that series located outside the United
States an office or agency where any Registered Securities of that
series may be surrendered for registration of transfer, where
Securities of that series may be surrendered for exchange, where
Securities of that series that are convertible or exchangeable may be
surrendered for conversion or exchange, as applicable and where
notices and demands to or upon the Company in respect of the
Securities of that series and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the
location, and any change in the location, of each such office or
agency.
(b) If at any time the Company shall fail to maintain any such
required office or agency or shall fail to furnish the Trustee with the address
thereof, such presentations, surrenders, notices and demands may be made or
served at the Corporate Trust Office of the Trustee, except that Bearer
Securities of that series and the related coupons may be presented and
surrendered for payment at the offices specified in the Security, in London,
England, and the Company hereby appoints the same as its agent to receive such
respective presentations, surrenders, notices and demands, and the Company
hereby appoints the Trustee its agent to receive all such presentations,
surrenders, notices and demands.
(c) Unless otherwise specified with respect to any Securities pursuant
to Section 301, no payment of principal, premium or interest on Bearer
Securities shall be made at any office or agency of the Company in the United
States or by check mailed to any address in the United States or by transfer to
an account maintained with a bank located in the United States; provided, that,
if the Securities of a series are payable in Dollars, payment of principal of
(and premium, if any) and interest, if any, on any Bearer Security shall be made
at the office of the Company's Paying Agent in the Borough of Manhattan, The
City of New York, if (but only if) payment in Dollars of the full amount of such
principal, premium or interest, as the case may be, at all offices or agencies
outside the United States maintained for such purpose by the Company in
accordance with this Indenture, is illegal or effectively precluded by exchange
controls or other similar restrictions.
(d) The Company may from time to time designate one or more other
offices or agencies where the Securities of one or more series may be presented
or surrendered for any or all of such purposes, and may from time to time
rescind such designations; provided, that, no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office
or agency in accordance with the requirements set forth above for Securities of
any series for such purposes. The Company will give prompt written notice to the
Trustee of any such designation or rescission and of any change in the location
of any such other office or agency. Unless otherwise specified with respect to
any Securities pursuant to Section 301 with respect to a series of Securities,
the Company hereby designates as a Place of Payment for each series of
Securities the office or agency of the Company in the Borough of Manhattan, The
City of New York, and initially appoints the Trustee at its Corporate Trust
75
Office as Paying Agent in such city and as its agent to receive all such
presentations, surrenders, notices and demands.
(e) Unless otherwise specified with respect to any Securities pursuant
to Section 301, if and so long as the Securities of any series
(1) are denominated in a Currency other than Dollars or
(2) may be payable in a Currency other than Dollars, or
(3) so long as it is required under any other provision of
the Indenture,
then the Company will maintain with respect to each such series of
Securities, or as so required, at least one Exchange Rate Agent.
Section 1003. Money for Securities Payments to be Held in Trust.
-------------------------------------------------
(a) If the Company or any Subsidiary or any Affiliate of any of them
shall at any time act as Paying Agent with respect to any series of any
Securities and any related coupons, it will, on or before each due date of the
principal of (or premium, if any) or interest, if any, on any of the Securities
of that series, segregate and hold in trust for the benefit of the Persons
entitled thereto a sum in the Currency in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 301 for the
Securities of such series and except, if applicable, as provided in Subsections
312(b), 312(d) and 312(e)) sufficient to pay the principal of (and premium, if
any) and interest, if any, on Securities of such series so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to
act.
(b) Whenever the Company shall have one or more Paying Agents for any
series of Securities and any related coupons, it will, on or before each due
date of the principal of (or premium, if any) or interest, if any, on any
Securities of that series, deposit with a Paying Agent a sum (in the Currency
described in Subsection 1003(a)) sufficient to pay the principal (or premium, if
any) or interest, if any, so becoming due, such sum to be held in trust for the
benefit of the Persons entitled to such principal, premium or interest and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of its action or failure so to act.
(c) The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held in
trust by the Company or such Paying Agent, such sums to be held by the Trustee
upon the same trusts as those upon which such sums were held by the Company or
such Paying Agent; and, upon such payment by any Paying Agent to the Trustee,
such Paying Agent shall be released from all further liability with respect to
such sums.
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(d) Except as otherwise provided in the Securities of any series, any
money deposited with the Trustee or any Paying Agent, or then held by the
Company, in trust for the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series and remaining unclaimed for two
years after such principal, premium or interest has become due and payable shall
be paid to the Company upon Company Request or (if then held by the Company)
shall be discharged from such trust; and the Holder of such Security shall
thereafter, as an unsecured general creditor, look only to the Company for
payment of such principal, premium or interest on any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect to
such trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, that, the Trustee or such Paying Agent, before being
required to make any such repayment, may at the expense of the Company cause to
be published once, in an Authorized Newspaper in each Place of Payment for such
series, or mailed to each Holder of Registered Securities of such series, notice
that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004. Corporate Existence.
-------------------
Subject to Article Eight, the Company shall do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence and material rights and franchises (charter and statutory); provided,
that, neither the Company shall be required to preserve any such right or
franchise if it shall determine that the preservation thereof is no longer
necessary or desirable in the conduct of the business of the Company; and
provided further, that the foregoing shall not prohibit a sale, transfer or
conveyance of a Subsidiary or any of its assets in compliance with the terms of
the Indenture.
Section 1005. Additional Amounts.
------------------
(a) If any Securities of a series provide for the payment of
Additional Amounts, the Company will pay to the Holder of a Security of such
series or any coupon appertaining thereto Additional Amounts as may be specified
as contemplated by Section 301. Whenever in this Indenture there is mentioned,
in any context, the payment of the principal of (or premium, if any) or
interest, if any, on any Security of any series or payment of any related coupon
or the net proceeds received on the sale or exchange of any Security of any
series, such mention shall be deemed to include mention of the payment of
Additional Amounts provided by the terms of such series established pursuant to
Section 301 to the extent that, in such context, Additional Amounts are, were or
would be payable in respect thereof pursuant to such terms and express mention
of the payment of Additional Amounts (if applicable) in any provisions hereof
shall not be construed as excluding Additional Amounts in those provisions
hereof where such express mention is not made.
(b) Except as otherwise specified as contemplated by Section 301, if
the Securities of a series provide for the payment of Additional Amounts, at
least 10 days prior to the first Interest Payment Date with respect to that
77
series of Securities (or if the Securities of that series will not bear interest
prior to Maturity, the first day on which a payment of principal and any premium
is made), and at least 10 days prior to each date of payment of principal,
premium or interest if there has been any change with respect to the matters set
forth in the below-mentioned Officers' Certificate, the Company will furnish the
Trustee and the Company's principal Paying Agent or Paying Agents, if other than
the Trustee, with an Officers' Certificate instructing the Trustee and such
Paying Agent or Paying Agents whether such payment of principal, premium or
interest on the Securities of that series shall be made to Holders of Securities
of that series or any related coupons who are not United States persons without
withholding for or on account of any tax, assessment or other governmental
charge described in the Securities of the series. If any such withholding shall
be required, then such Officers' Certificate shall specify by country the
amount, if any, required to be withheld on such payments to such Holders of
Securities of that series or related coupons and the Company will pay to the
Trustee or such Paying Agent the Additional Amounts required by the terms of
such Securities. In the event that the Trustee or any Paying Agent, as the case
may be, shall not so receive the above-mentioned certificate, then the Trustee
or such Paying Agent shall be entitled (1) to assume that no such withholding or
deduction is required with respect to any payment of principal of (or premium,
if any) or interest with respect to any Securities of a series or related
coupons until it shall have received a certificate advising otherwise and (2) to
make all payments of principal of (or premium, if any) and interest with respect
to the Securities of a series or related coupons without withholding or
deductions until otherwise advised. The Company covenants to indemnify the
Trustee and any Paying Agent for, and to hold them harmless against, any loss,
liability or expense reasonably incurred without negligence or bad faith on
their part arising out of or in connection with actions taken or omitted by any
of them in reliance on any Officers' Certificate furnished pursuant to this
Section.
Section 1006. Statement as to Compliance.
--------------------------
The Company will deliver to the Trustee, within 120 days after the end
of each fiscal year, a brief certificate from the principal executive officer,
principal financial officer or principal accounting officer as to his or her
knowledge of the Company's compliance with all conditions and covenants under
this Indenture and, if the Company is in default, specifying all such defaults
and the nature and status thereof of which he or she may have knowledge. For
purposes of this Section 1006, such compliance shall be determined without
regard to any period of grace or requirement of notice under this Indenture.
Section 1007. Waiver of Certain Covenants.
---------------------------
(a) With respect to the Securities of any series, the Company may omit
in any particular instance to comply with any term, provision or condition
specified pursuant to Section 301 as being subject to this Section 1007, if
before or after the time for such compliance the Holders of at least a majority
in principal amount of all Outstanding Securities of such series affected by
such term, provision or condition, by Act of such Holders, waive such compliance
78
in such instance or generally waive compliance with such term, provision or
condition, but no such waiver shall extend to or affect such term, provision or
condition except to the extent so expressly waived, and, until such waiver shall
become effective, the obligations of the Company and the duties of the Trustee
in respect of any such term, provision or condition shall remain in full force
and effect.
Section 1008. Statement by Officers as to Default.
-----------------------------------
The Company shall deliver to the Trustee, as soon as possible and in
any event within 10 days after the Company becomes aware of the occurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Applicability of Article.
------------------------
Securities of any series which are redeemable before their Stated
Maturity shall be redeemable in accordance with their terms and (except as
otherwise specified as contemplated by Section 301 for Securities of any series)
in accordance with this Article.
Section 1102. Election to Redeem; Notice to Trustee.
-------------------------------------
The election of the Company to redeem any Securities shall be
evidenced by or pursuant to a Board Resolution. In case of any redemption at the
election of the Company of less than all of the Securities of any series, the
Company shall, at least 60 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee in writing of such Redemption Date and of the principal amount of
Securities of such series to be redeemed. In the case of any redemption of
Securities prior to the expiration of any restriction on such redemption
provided in the terms of such Securities or elsewhere in this Indenture, the
Company shall furnish the Trustee with an Officers' Certificate evidencing
compliance with such restriction.
Section 1103. Selection by Trustee of Securities to be Redeemed.
-------------------------------------------------
(a) If less than all the Securities of any series issued on the same
day with the same terms are to be redeemed, the particular Securities to be
redeemed shall be selected not more than 60 days prior to the Redemption Date by
the Trustee, from the Outstanding Securities of such series issued on such date
with the same terms not previously called for redemption, by such method as the
Trustee shall deem fair and appropriate and which may provide for the selection
for redemption of portions (equal to the minimum authorized denomination for
Securities of that series or any integral multiple thereof) of the principal
amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
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(b) The Trustee shall promptly notify the Company and the Security
Registrar (if other than itself) in writing of the Securities selected for
redemption and, in the case of any Securities selected for partial redemption,
the principal amount thereof to be redeemed.
(c) For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Security redeemed or to be redeemed only in part, to the
portion of the principal amount of such Security which has been or is to be
redeemed.
Section 1104. Notice of Redemption.
--------------------
(a) Notice of redemption shall be given in the manner provided in
Section 106, not less than 30 days nor more than 60 days prior to the Redemption
Date, unless a shorter period is specified by the terms of such series
established pursuant to Section 301, to each Holder of Securities to be
redeemed, but failure to give such notice in the manner herein provided to the
Holder of any Security designated for redemption as a whole or in part, or any
defect in the notice to any such Holder, shall not affect the validity of the
proceedings for the redemption of any other such Security or portion thereof.
(b) Any notice that is mailed to the Holders of Registered Securities
in the manner herein provided shall be conclusively presumed to have been duly
given, whether or not the Holder receives the notice. All notices of redemption
shall state:
(1) the Redemption Date,
(2) the Redemption Price and the amount of accrued interest,
if any, to the Redemption Date payable as provided in Section 1106,
(3) if less than all the Outstanding Securities of any
series are to be redeemed, the identification (and, in the case of
partial redemption, the principal amount) of the particular Securities
to be redeemed,
(4) in case any Security is to be redeemed in part only, the
notice which relates to such Security shall state that on and after
the Redemption Date, upon surrender of such Security, the Holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date, the Redemption Price and
accrued interest, if any, to the Redemption Date payable as provided
in Section 1106 will become due and payable upon each such Security,
or the portion thereof, to be redeemed and, if applicable, that
interest thereon shall cease to accrue on and after said date,
(6) the Place or Places of Payment where such Securities,
together in the case of Bearer Securities with all coupons
80
appertaining thereto, if any, maturing after the Redemption Date, are
to be surrendered for payment of the Redemption Price and accrued
interest, if any,
(7) that the redemption is for a sinking fund, if such is
the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the Redemption Date
or the amount of any such missing coupon or coupons will be deducted
from the Redemption Price, unless security or indemnity satisfactory
to the Company, the Trustee for such series and any Paying Agent is
furnished,
(9) if Bearer Securities of any series are to be redeemed
and any Registered Securities of such series are not to be redeemed,
and if such Bearer Securities may be exchanged for Registered
Securities not subject to redemption on this Redemption Date pursuant
to Section 305 or otherwise, the last date, as determined by the
Company, on which such exchanges may be made, and
(10) the CUSIP number of such Security, if any.
(c) Notice of redemption of Securities to be redeemed shall be given
by the Company or, at the Company's request, by the Trustee in the name and at
the expense of the Company.
Section 1105. Deposit of Redemption Price.
---------------------------
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, which it may not do in the case of a sinking fund payment under Article
Twelve, segregate and hold in trust as provided in Section 1003) an amount of
money in the Currency in which the Securities of such series are payable (except
as otherwise specified pursuant to Section 301 for the Securities of such series
and except, if applicable, as provided in Subsections 312(b), 312(d) and 312(e))
sufficient to pay on the Redemption Date the Redemption Price of, and (unless
otherwise specified pursuant to Section 301) accrued and unpaid interest, if
any, on, all the Securities or portions thereof which are to be redeemed on that
date.
Section 1106. Securities Payable on Redemption Date.
-------------------------------------
(a) Notice of redemption having been given as aforesaid, the
Securities of any series so to be redeemed shall, on the Redemption Date, become
due and payable at the Redemption Price therein specified in the Currency in
which the Securities of such series are payable (except as otherwise specified
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Subsections 312(b), 312(d) and 312(e)) (together with
accrued interest, if any, to the Redemption Date), and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
81
accrued interest, if any) such Securities shall if the same were
interest-bearing cease to bear interest and the coupons for such interest
appertaining to any Bearer Securities so to be redeemed, except to the extent
provided below, shall be void. Upon surrender of any such Security for
redemption in accordance with said notice, together with all coupons, if any,
appertaining thereto maturing after the Redemption Date, such Security shall be
paid by the Company at the Redemption Price, together with accrued interest, if
any, to the Redemption Date; provided, that, installments of interest on Bearer
Securities whose Stated Maturity is on or prior to the Redemption Date shall be
payable only at an office or agency located outside the United States (except as
otherwise provided in Section 1002) and, unless otherwise specified as
contemplated by Section 301, only upon presentation and surrender of coupons for
such interest; and provided further that installments of interest on Registered
Securities whose Stated Maturity is prior to (or, if specified pursuant to
Section 301, on) the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Record Dates according to their terms and the
provisions of Section 307.
(b) If any Bearer Security surrendered for redemption shall not be
accompanied by all appurtenant coupons maturing after the Redemption Date, such
Security may be paid after deducting from the Redemption Price an amount equal
to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be
furnished to them such security or indemnity as they may require to save each of
them and any Paying Agent harmless. If thereafter the Holder of such Security
shall surrender to the Trustee or any Paying Agent any such missing coupon in
respect of which a deduction shall have been made from the Redemption Price,
such Holder shall be entitled to receive the amount so deducted; provided, that,
interest represented by coupons shall be payable only at an office or agency
located outside the United States (except as otherwise provided in Section 1002)
and, unless otherwise specified as contemplated by Section 301, only upon
presentation and surrender of those coupons.
(c) If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate of interest set
forth in such Security or, in the case of an Original Issue Discount Security,
at the Yield to Maturity of such Security.
Section 1107. Securities Redeemed in Part.
---------------------------
Any Registered Security which is to be redeemed only in part (pursuant
to the provisions of this Article or of Article Twelve) shall be surrendered at
a Place of Payment therefor (with, if the Company or the Trustee so requires,
due endorsement by, or a written instrument of transfer in form satisfactory to
the Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security without service charge a
new Security or Securities of the same series, of any authorized denomination as
requested by such Holder in aggregate principal amount equal to and in exchange
82
for the unredeemed portion of the principal of the Security so surrendered.
However, if less than all the Securities of any series with differing issue
dates, interest rates and stated maturities are to be redeemed, the Company in
its sole discretion shall select the particular Securities to be redeemed and
shall notify the Trustee in writing thereof at least 45 days prior to the
relevant redemption date.
ARTICLE TWELVE
SINKING FUNDS
Section 1201. Applicability of Article.
------------------------
(a) The provisions of this Article shall be applicable to any sinking
fund for the retirement of Securities of a series except as otherwise specified
as contemplated by Section 301 for Securities of such series.
(b) The minimum amount of any sinking fund payment provided for by the
terms of Securities of any series is herein referred to as a "mandatory sinking
fund payment", and any payment in excess of such minimum amount provided for by
the terms of such Securities of any series is herein referred to as an "optional
sinking fund payment". If provided for by the terms of any Securities of any
series, the cash amount of any mandatory sinking fund payment may be subject to
reduction as provided in Section 1202. Each sinking fund payment shall be
applied to the redemption of Securities of any series as provided for by the
terms of Securities of such series.
Section 1202. Satisfaction of Sinking Fund Payments with Securities.
-----------------------------------------------------
Except as otherwise specifically contemplated by Section 301 for
Securities of such series, the Company may, in satisfaction of all or any part
of any mandatory sinking fund payment with respect to the Securities of a
series, (a) deliver Outstanding Securities of such series (other than any
previously called for redemption) together in the case of any Bearer Securities
of such series with all unmatured coupons appertaining thereto and (b) apply as
a credit Securities of such series which have been redeemed either at the
election of the Company pursuant to the terms of such Securities or through the
application of permitted optional sinking fund payments pursuant to the terms of
such Securities, as provided for by the terms of such Securities; provided that
such Securities so delivered or applied as a credit have not been previously so
credited. Such Securities shall be received and credited for such purpose by the
Trustee at the applicable Redemption Price specified in such Securities for
redemption through operation of the sinking fund and the amount of such
mandatory sinking fund payment shall be reduced accordingly.
Section 1203. Redemption of Securities for Sinking Fund.
-----------------------------------------
Not less than 60 days prior to each sinking fund payment date for
Securities of any series, the Company will deliver to the Trustee an Officers'
Certificate specifying the amount of the next ensuing mandatory sinking fund
payment for that series pursuant to the terms of that series, the portion
thereof, if any, which is to be satisfied by payment of cash in the Currency in
which the Securities of such series are payable (except as otherwise specified
83
pursuant to Section 301 for the Securities of such series and except, if
applicable, as provided in Subsections 312(b), 312(d) and 312(e)) and the
portion thereof, if any, which is to be satisfied by delivering and crediting
Securities of that series pursuant to Section 1202, and the optional amount, if
any, to be added in cash to the next ensuing mandatory sinking fund payment, and
will also deliver to the Trustee any Securities to be so delivered and credited.
If such Officers' Certificate shall specify an optional amount to be added in
cash to the next ensuing mandatory sinking fund payment, the Company shall
thereupon be obligated to pay the amount therein specified. Not less than 30
days before each such sinking fund payment date the Trustee shall select the
Securities to be redeemed upon such sinking fund payment date in the manner
specified in Section 1103 and cause notice of the redemption thereof to be given
in the name of and at the expense of the Company in the manner provided in
Section 1104. Such notice having been duly given, the redemption of such
Securities shall be made upon the terms and in the manner stated in Sections
1106 and 1107.
ARTICLE THIRTEEN
REPAYMENT AT THE OPTION OF HOLDERS
Section 1301. Applicability of Article.
------------------------
Repayment of Securities of any series before their Stated Maturity at
the option of Holders thereof shall be made in accordance with the terms of such
Securities and (except as otherwise specified by the terms of such series
established pursuant to Section 301) in accordance with this Article.
Section 1302. Repayment of Securities.
-----------------------
Securities of any series subject to repayment in whole or in part at
the option of the Holders thereof will, unless otherwise provided in the terms
of such Securities, be repaid at the Repayment Price thereof, together with
interest, if any, thereon accrued to the Repayment Date specified in or pursuant
to the terms of such Securities. The Company covenants that on or before the
Repayment Date it will deposit with the Trustee or with a Paying Agent (or, if
the Company or any Subsidiary or any Affiliate of any of them is acting as
Paying Agent, segregate and hold in trust as provided in Section 1003) an amount
of money in the Currency in which the Securities of such series are payable
(except as otherwise specified pursuant to Section 301 for the Securities of
such series and except, if applicable, as provided in Subsections 312(b), 312(d)
and 312(e)) sufficient to pay the Repayment Price of, and (unless otherwise
specified pursuant to Section 301) accrued interest on, all the Securities or
portions thereof, as the case may be, to be repaid on such date.
Section 1303. Exercise of Option.
------------------
Securities of any series subject to repayment at the option of the
Holders thereof will contain an "Option to Elect Repayment" form on the reverse
of such Securities. To be repaid at the option of the Holder, any Security so
providing for such repayment, with the "Option to Elect Repayment" form on the
84
reverse of such Security duly completed by the Holder (or by the Holder's
attorney duly authorized in writing), must be received by the Company at the
Place of Payment therefor specified in the terms of such Security (or at such
other place or places of which the Company shall from time to time notify the
Holders of such Securities) not earlier than 45 days nor later than 30 days
prior to the Repayment Date. If less than the entire Repayment Price of such
Security is to be repaid in accordance with the terms of such Security, the
portion of the Repayment Price of such Security to be repaid, in increments of
the minimum denomination for Securities of such series, and the denomination or
denominations of the Security or Securities to be issued to the Holder for the
portion of such Security surrendered that is not to be repaid, must be
specified. Any Security providing for repayment at the option of the Holder
thereof may not be repaid in part if, following such repayment, the unpaid
principal amount of such Security would be less than the minimum authorized
denomination of Securities of the series of which such Security to be repaid is
a part. Except as otherwise may be provided by the terms of any Security
providing for repayment at the option of the Holder thereof, exercise of the
repayment option by the Holder shall be irrevocable unless waived by the
Company.
Section 1304. When Securities Presented for Repayment Become Due and
------------------------------------------------------
Payable.
-------
(a) If Securities of any series providing for repayment at the option
of the Holders thereof shall have been surrendered as provided in this Article
and as provided by or pursuant to the terms of such Securities, such Securities
or the portions thereof, as the case may be, to be repaid shall become due and
payable and shall be paid by the Company on the Repayment Date therein
specified, and on and after such Repayment Date (unless the Company shall
default in the payment of such Securities on such Repayment Date) such
Securities shall, if the same were interest-bearing, cease to bear interest and
the coupons for such interest appertaining to any Bearer Securities so to be
repaid, except to the extent provided below, shall be void. Upon surrender of
any such Security for repayment in accordance with such provisions, together
with all coupons, if any, appertaining thereto maturing after the Repayment
Date, the Repayment Price of such Security so to be repaid shall be paid by the
Company, together with accrued interest, if any, to the Repayment Date;
provided, that, coupons whose Stated Maturity is on or prior to the Repayment
Date shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise
specified pursuant to Section 301, only upon presentation and surrender of such
coupons; and provided further that installments of interest on Registered
Securities, whose Stated Maturity is prior to (or, if specified pursuant to
Section 301, on) the Repayment Date shall be payable (but without interest
thereon, unless the Company shall default in the payment thereof) to the Holders
of such Securities, or one or more Predecessor Securities, registered as such at
the close of business on the relevant Record Dates according to their terms and
the provisions of Section 307.
(b) If any Bearer Security surrendered for repayment shall not be
accompanied by all appurtenant coupons maturing after the Repayment Date, such
Security may be paid after deducting from the amount payable therefor as
provided in Section 1302 an amount equal to the face amount of all such missing
85
coupons, or the surrender of such missing coupon or coupons may be waived by the
Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any
Paying Agent any such missing coupon in respect of which a deduction shall have
been made as provided in the preceding sentence, such Holder shall be entitled
to receive the amount so deducted; provided, that, interest represented by
coupons shall be payable only at an office or agency located outside the United
States (except as otherwise provided in Section 1002) and, unless otherwise
specified as contemplated by Section 301, only upon presentation and surrender
of those coupons.
(c) If any Security surrendered for repayment shall not be so repaid
upon surrender thereof, the Repayment Price shall, until paid, bear interest
from the Repayment Date at the rate of interest set forth in such Security or,
in the case of an Original Issue Discount Security, at the Yield to Maturity of
such Security.
Section 1305. Securities Repaid in Part.
-------------------------
Upon surrender of any Registered Security which is to be repaid in
part only, the Company shall execute and the Trustee shall authenticate and
deliver to the Holder of such Security, without service charge and at the
expense of the Company, a new Registered Security or Securities of the same
series, of any authorized denomination specified by the Holder, in an aggregate
principal amount equal to and in exchange for the portion of the principal of
such Security so surrendered which is not to be repaid.
ARTICLE FOURTEEN
DEFEASANCE AND COVENANT DEFEASANCE
Section 1401. Applicability of Article; Company's Option to Effect
----------------------------------------------------
Defeasance or Covenant Defeasance.
---------------------------------
If pursuant to Section 301 provision is made for either or both of (a)
defeasance of the Securities of or within a series under Section 1402 or (b)
covenant defeasance of the Securities of or within a series under Section 1403,
then the provisions of such Section or Sections, as the case may be, together
with the other provisions of this Article (with such modifications thereto as
may be specified pursuant to Section 301 with respect to any Securities), shall
be applicable to such Securities and any coupons appertaining thereto, and the
Company may at its option by Board Resolution, at any time, with respect to such
Securities and any coupons appertaining thereto, elect to have Section 1402 (if
applicable) or Section 1403 (if applicable) be applied to such Outstanding
Securities and any coupons appertaining thereto upon compliance with the
conditions set forth below in this Article.
Section 1402. Defeasance and Discharge.
------------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
each be deemed to have been discharged from its obligations with respect to such
86
Outstanding Securities and any coupons appertaining thereto on the date the
conditions set forth in Section 1404 are satisfied (hereinafter, "defeasance").
For this purpose, such defeasance means that the Company shall be deemed to have
paid and discharged the entire indebtedness represented by such Outstanding
Securities and any coupons appertaining thereto, which shall thereafter be
deemed to be "Outstanding" only for the purposes of Section 1405 and the other
Sections of this Indenture referred to in clauses (a) and (b) of this Section
1402, and to have satisfied all its other obligations under such Securities and
any coupons appertaining thereto and this Indenture insofar as such Securities
and any coupons appertaining thereto are concerned (and the Trustee, at the
expense of the Company, shall execute proper instruments acknowledging the
same), except for the following which shall survive until otherwise terminated
or discharged hereunder:
(a) the rights of Holders of such Outstanding Securities and any
coupons appertaining thereto to receive, solely from the trust fund described in
Section 1404 and as more fully set forth in such Section, payments in respect of
the principal of (and premium, if any) and interest, if any, on such Securities
and any coupons appertaining thereto when such payments are due,
(b) the obligations of the Company with respect to such Securities
under Sections 304, 305, 306, 1002 and 1003 and with respect to the payment of
Additional Amounts, if any, on such Securities as contemplated by Section 1005
with respect to the rights, if any, of the holders of such Securities to require
the Company to repay such Securities as contemplated by Article Thirteen and
with respect to the rights, if any, of holders to convert or exchange such
Securities into other Securities,
(c) the rights, powers, trusts, duties and immunities of the Trustee
hereunder and
(d) Subject to compliance with this Article Fourteen, the Company may
exercise its option under this Section 1402 notwithstanding the prior exercise
of its option under Section 1403 with respect to such Securities and any coupons
appertaining thereto.
Section 1403. Covenant Defeasance.
-------------------
Upon the Company's exercise of the above option applicable to this
Section with respect to any Securities of or within a series, the Company shall
each be released from its obligations under any other covenant specified
pursuant to Section 301, with respect to such Outstanding Securities and any
coupons appertaining thereto on and after the date the conditions set forth in
Section 1404 are satisfied (hereinafter, "covenant defeasance"), and such
Securities and any coupons appertaining thereto shall thereafter be deemed to
not be "Outstanding" for the purposes of any direction, waiver, consent or
declaration or Act of Holders (and the consequences of any thereof) in
connection with any applicable covenant, but shall continue to be deemed
"Outstanding" for all other purposes hereunder. For this purpose, such covenant
defeasance means that, with respect to such Outstanding Securities and any
coupons appertaining thereto, the Company may omit to comply with and shall have
no liability in respect of any term, condition or limitation set forth in any
87
such Section or such other covenant, whether directly or indirectly, by reason
of any reference elsewhere herein to any such Section or such other covenant or
by reason of reference in any such Section or such other covenant to any other
provision herein or in any other document and such omission to comply shall not
constitute a Default or an Event of Default under clauses (4) or (7) of
Subsection 501(a) or otherwise except as specified in accordance with Section
301, as the case may be, but, except as specified above, the remainder of this
Indenture and such Securities and any coupons appertaining thereto shall be
unaffected thereby.
Section 1404. Conditions to Defeasance or Covenant Defeasance.
-----------------------------------------------
The following shall be the conditions to application of Section 1402
or Section 1403 to any Outstanding Securities of or within a series and any
coupons appertaining thereto:
(a) The Company shall irrevocably have deposited or caused to be
deposited with the Trustee (or another trustee satisfying the requirements of
Section 607 who shall agree to comply with the provisions of this Article
Fourteen applicable to it) as trust funds in trust for the purpose of making the
following payments, specifically pledged as security for, and dedicated solely
to, the benefit of the Holders of such Securities and any coupons appertaining
thereto, (1) an amount (in such Currency in which such Securities and any
coupons appertaining thereto are then specified as payable at Stated Maturity),
or (2) Government Obligations applicable to such Securities and coupons
appertaining thereto (determined on the basis of the Currency in which such
Securities and coupons appertaining thereto are then specified as payable at
Stated Maturity) which through the scheduled payment of principal and interest
in respect thereof in accordance with their terms will provide, not later than
one day before the due date of any payment of principal of (and premium, if any)
and interest, if any, on such Securities and any coupons appertaining thereto,
money in an amount, or (3) a combination thereof in an amount, sufficient, in
the opinion of a nationally recognized firm of independent public accountants or
nationally recognized independent investment banking firm expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which
shall be applied by the Trustee (or other qualifying trustee) to pay and
discharge, (i) the principal of (and premium, if any) and interest, if any, on
such Outstanding Securities and any coupons appertaining thereto on the Stated
Maturity of such principal or installment of principal or interest and (ii) any
mandatory sinking fund payments or analogous payments applicable to such
Outstanding Securities and any coupons appertaining thereto on the day on which
such payments are due and payable in accordance with the terms of this Indenture
and of such Securities and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No Default or Event of Default with respect to such Securities and
any coupons appertaining thereto shall have occurred and be continuing on the
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date of such deposit or, insofar clauses (5) and (6) of Subsection 501(a) are
concerned, at any time during the period ending on the 91st day after the date
of such deposit (it being understood that this condition shall not be deemed
satisfied until the expiration of such period).
(d) In the case of an election under Section 1402, the Company shall
have delivered to the Trustee an Opinion of Counsel stating that (1) the Company
has received from, or there has been published by, the Internal Revenue Service
a ruling, or (2) since the date of execution of this Indenture, there has been a
change in the applicable Federal income tax law, in either case to the effect
that, and based thereon such opinion shall confirm that, the Holders of such
Outstanding Securities and any coupons appertaining thereto will not recognize
income, gain or loss for Federal income tax purposes as a result of such
defeasance and will be subject to Federal income tax on the same amounts, in the
same manner and at the same times as would have been the case if such defeasance
had not occurred.
(e) In the case of an election under Section 1403, the Company shall
have delivered to the Trustee an Opinion of Counsel to the effect that the
Holders of such Outstanding Securities and any coupons appertaining thereto will
not recognize income, gain or loss for Federal income tax purposes as a result
of such covenant defeasance and will be subject to Federal income tax on the
same amounts, in the same manner and at the same times as would have been the
case if such covenant defeasance had not occurred.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 1402 or the covenant defeasance under
Section 1403 (as the case may be) have been complied with and an Opinion of
Counsel to the effect that either (i) as a result of a deposit pursuant to
Subsection (a) of this Section and the related exercise of the Company's option
under Section 1402 or Section 1403 (as the case may be), registration is not
required under the Investment Company Act of 1940, as amended, by the Company,
with respect to the trust funds representing such deposit or by the trustee for
such trust funds or (ii) all necessary registrations under said Act have been
effected.
(g) Notwithstanding any other provisions of this Section, such
defeasance or covenant defeasance shall be effected in compliance with any
additional or substitute terms, conditions or limitations which may be imposed
on the Company in connection therewith pursuant to Section 301.
Section 1405. Deposited Money and Government Obligations to Be Held in
--------------------------------------------------------
Trust; Other Miscellaneous Provisions.
-------------------------------------
(a) Subject to the provisions of Subsection 1003(d), all money and
Government Obligations (or other property as may be provided pursuant to Section
301) (including the proceeds thereof) deposited with the Trustee (or other
qualifying trustee, collectively for purposes of this Section 1405, the
"Trustee") pursuant to Section 1404 in respect of any Outstanding Securities of
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any series and any coupons appertaining thereto shall be held in trust and
applied by the Trustee, in accordance with the provisions of such Securities and
any coupons appertaining thereto and this Indenture, to the payment, either
directly or through any Paying Agent (including the Company acting as its own
Paying Agent) as the Trustee may determine, to the Holders of such Securities
and any coupons appertaining thereto of all sums due and to become due thereon
in respect of principal (and premium, if any) and interest, if any, but such
money need not be segregated from other funds except to the extent required by
law.
(b) Unless otherwise specified with respect to any Security pursuant
to Section 301, if, after a deposit referred to in Subsection 1404(a) has been
made, (1) the Holder of a Security in respect of which such deposit was made is
entitled to, and does, elect pursuant to Subsection 312(b) or the terms of such
Security to receive payment in a Currency other than that in which the deposit
pursuant to Subsection 1404(a) has been made in respect of such Security, or (2)
a Conversion Event occurs as contemplated in Subsection 312(d) or 312(e) or by
the terms of any Security in respect of which the deposit pursuant to Subsection
1404(a) has been made, the indebtedness represented by such Security and any
coupons appertaining thereto shall be deemed to have been, and will be, fully
discharged and satisfied through the payment of the principal of (and premium,
if any) and interest, if any, on such Security as the same becomes due out of
the proceeds yielded by converting (from time to time as specified below in the
case of any such election) the amount or other property deposited in respect of
such Security into the Currency in which such Security becomes payable as a
result of such election or Conversion Event based on the applicable Market
Exchange Rate for such Currency in effect on the second Business Day prior to
each payment date, except, with respect to a Conversion Event, for such Currency
in effect (as nearly as feasible) at the time of the Conversion Event.
(c) The Company shall pay and indemnify the Trustee against any tax,
fee or other charge imposed on or assessed against the Government Obligations
deposited pursuant to Section 1404 or the principal and interest received in
respect thereof other than any such tax, fee or other charge which by law is for
the account of the Holders of such Outstanding Securities and any coupons
appertaining thereto.
(d) Anything in this Article Fourteen to the contrary notwithstanding,
the Trustee shall deliver or pay to the Company from time to time upon Company
Request any money or Government Obligations (or other property and any proceeds
therefrom) held by it as provided in Section 1404 which, in the opinion of a
nationally recognized firm of independent public accountants expressed in a
written certification thereof delivered to the Trustee, are in excess of the
amount thereof which would then be required to be deposited to effect a
defeasance or covenant defeasance, as applicable, in accordance with this
Article.
Section 1406. Reinstatement.
-------------
If the Trustee or any Paying Agent is unable to apply any money in
accordance with Section 1405 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such
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application, then the Company's obligations, under this Indenture and such
Securities and any related coupons shall be revived and reinstated as though no
deposit had occurred pursuant to Section 1402 or 1403, as the case may be, until
such time as the Trustee or Paying Agent is permitted to apply all such money in
accordance with Section 1405; provided, that, if the Company makes any payment
of principal of (or premium, if any) or interest, if any, on any such Security
or any related coupon following the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities and
any related coupons to receive such payment from the money held by the Trustee
or Paying Agent.
ARTICLE FIFTEEN
MEETINGS OF HOLDERS OF SECURITIES
Section 1501. Purposes for Which Meetings May Be Called.
-----------------------------------------
If Securities of a series are issuable as Bearer Securities, a meeting
of Holders of Securities of such series may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities of such
series.
Section 1502. Call, Notice and Place of Meetings.
----------------------------------
(a) The Trustee may at any time call a meeting of Holders of
Securities of any series for any purpose specified in Section 1501, to be held
at such time and at such place in the Borough of Manhattan, The City of New York
or in London as the Trustee shall determine. Notice of every meeting of Holders
of Securities of any series, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 106, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution,
or the Holders of at least 10% in principal amount of the Outstanding Securities
of any series, shall have requested the Trustee to call a meeting of the Holders
of Securities of such series for any purpose specified in Section 1501, by
written request setting forth in reasonable detail the action proposed to be
taken at the meeting, and the Trustee shall not have made the first publication
of the notice of such meeting within 21 days after receipt of such request or
shall not thereafter proceed to cause the meeting to be held as provided herein,
then the Company or the Holders of Securities of such series in the amount above
specified, as the case may be, may determine the time and the place in the
Borough of Manhattan, The City of New York or in London for such meeting and may
call such meeting for such purposes by giving notice thereof as provided in
Subsection (a) of this Section.
Section 1503. Persons Entitled to Vote at Meetings.
------------------------------------
To be entitled to vote at any meeting of Holders of Securities of any
series, a Person shall be (a) a Holder of one or more Outstanding Securities of
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such series, or (b) a Person appointed by an instrument in writing as proxy for
a Holder or Holders of one or more Outstanding Securities of such series by such
Holder or Holders. The only Persons who shall be entitled to be present or to
speak at any meeting of Holders of Securities of any series shall be the Persons
entitled to vote at such meeting and their counsel, any representatives of the
Trustee and its counsel and any representatives of the Company and its counsel.
Section 1504. Quorum; Action.
--------------
(a) The Persons entitled to vote a majority in principal amount of the
Outstanding Securities of a series shall constitute a quorum for a meeting of
Holders of Securities of such series; provided, that if any action is to be
taken at such meeting with respect to a consent or waiver which this Indenture
expressly provides may be given by the Holders of not less than a specified
percentage in principal amount of the Outstanding Securities of a series, the
Persons entitled to vote such specified percentage in principal amount of the
Outstanding Securities of such series shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of Securities of such
series, be dissolved. In any other case the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
of not less than 10 days as determined by the chairman of the meeting prior to
the adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Subsection 1502(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of
any adjourned meeting shall state expressly the percentage, as provided above,
of the principal amount of the Outstanding Securities of such series which shall
constitute a quorum.
(b) Subject to Subsection (a) of this section, at the reconvening of
any meeting adjourned for lack of a quorum the Persons entitled to vote 25% in
principal amount of the Outstanding Securities at the time shall constitute a
quorum for the taking of any action set forth in the notice of the original
meeting.
(c) Except as limited by the proviso to Section 902, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of
not less than a majority in principal amount of the Outstanding Securities of
that series; provided, that except as limited by the proviso to Section 902, any
resolution with respect to any request, demand, authorization, direction,
notice, consent, waiver or other action which this Indenture expressly provides
may be made, given or taken by the Holders of a specified percentage, which is
less than a majority, in principal amount of the Outstanding Securities of a
series may be adopted at a meeting or an adjourned meeting duly reconvened and
at which a quorum is present as aforesaid by the affirmative vote of the Holders
of not less than such specified percentage in principal amount of the
Outstanding Securities of that series.
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(d) Any resolution passed or decision taken at any meeting of Holders
of Securities of any series duly held in accordance with this Section shall be
binding on all the Holders of Securities of such series and the related coupons,
whether or not present or represented at the meeting.
(e) Notwithstanding the foregoing provisions of this Section 1504, if
any action is to be taken at a meeting of Holders of Securities of any series
with respect to any request, demand, authorization, direction, notice, consent,
waiver or other action that this Indenture expressly provides may be made, given
or taken by the Holders of a specified percentage in principal amount of all
Outstanding Securities affected thereby, or of the Holders of such series and
one or more additional series:
(1) there shall be no minimum quorum requirement for such
meeting; and
(2) the principal amount of the Outstanding Securities of
such series that vote in favor of such request, demand, authorization,
direction, notice, consent, waiver or other action shall be taken into
account in determining whether such request, demand, authorization,
direction, notice, consent, waiver or other action has been made,
given or taken under this Indenture.
Section 1505. Determination of Voting Rights; Conduct and Adjournment of
----------------------------------------------------------
Meetings.
--------
(a) Notwithstanding any provisions of this Indenture, the Company may
make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities of a series in regard to proof of the holding of
Securities of such series and of the appointment of proxies and in regard to the
appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other
matters concerning the conduct of the meeting as it shall deem appropriate.
Except as otherwise permitted or required by any such regulations, the holding
of Securities shall be proved in the manner specified in Section 104 and the
appointment of any proxy shall be proved in the manner specified in Section 104
or by having the signature of the Person executing the proxy witnessed or
guaranteed by any trust company, bank or banker authorized by Section 104 to
certify to the holding of Bearer Securities. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 104 or other proof.
(b) The Company shall, by an instrument in writing appoint a temporary
chairman of the meeting, unless the meeting shall have been called by Holders of
Securities as provided in Subsection 1502(b), in which case the Holders of
Securities of the series calling the meeting shall in like manner appoint a
temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the Persons entitled to vote a majority in
principal amount of the Outstanding Securities of such series represented at the
meeting.
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(c) At any meeting each Holder of a Security of such series or proxy
shall be entitled to one vote for each $1,000 principal amount of the
Outstanding Securities of such series held or represented by him; provided,
that, no vote shall be cast or counted at any meeting in respect of any Security
challenged as not Outstanding and ruled by the chairman of the meeting to be not
Outstanding. The chairman of the meeting shall have no right to vote, except as
a Holder of a Security of such series or proxy.
(d) Any meeting of Holders of Securities of any series duly called
pursuant to Section 1502 at which a quorum is present may be adjourned from time
to time by Persons entitled to vote a majority in principal amount of the
Outstanding Securities of such series represented at the meeting, and the
meeting may be held as so adjourned without further notice.
Section 1506. Counting Votes and Recording Action of Meetings.
-----------------------------------------------
The vote upon any resolution submitted to any meeting of Holders of
Securities of any series shall be by written ballots on which shall be
subscribed the signatures of the Holders of Securities of such series or of
their representatives by proxy and the principal amounts and serial numbers of
the Outstanding Securities of such series held or represented by them. The
permanent chairman of the meeting shall appoint two inspectors of votes who
shall count all votes cast at the meeting for or against any resolution and who
shall make and file with the secretary of the meeting their verified written
reports in duplicate of all votes cast at the meeting. A record, at least in
duplicate, of the proceedings of each meeting of Holders of Securities of any
series shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more persons having
knowledge of the fact, setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Subsection 1502(a) and, if
applicable, Section 1504. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the former to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE SIXTEEN
SUBORDINATION OF SECURITIES
Section 1601. Agreement to Subordinate.
------------------------
Except as otherwise specified pursuant to Section 301, the Company,
for itself, its successors and assigns, covenants and agrees, and each Holder of
Securities by his acceptance thereof, likewise covenants and agrees, that the
payment of the principal of (and premium, if any) and interest, if any, on each
and all of the Securities is hereby expressly subordinated, to the extent and in
the manner hereinafter set forth, in right of payment to the prior payment in
full of all Senior Indebtedness.
94
Section 1602. Distribution on Dissolution, Liquidation and Reorganization;
------------------------------------------------------------
Subrogation of Securities.
-------------------------
(a) Except as otherwise specified pursuant to Section 301, upon any
distribution of assets of the Company upon any dissolution, winding up,
liquidation or reorganization of the Company, whether in bankruptcy, insolvency,
reorganization or receivership proceedings or upon an assignment for the benefit
of creditors or any other marshalling of the assets and liabilities of the
Company or otherwise (subject to the power of a court of competent jurisdiction
to make other equitable provision reflecting the rights conferred in this
Indenture upon the Senior Indebtedness and the holders thereof with respect to
the Securities and the holders thereof by a lawful plan of reorganization under
applicable bankruptcy law):
(1) the holders of all Senior Indebtedness shall be entitled
to receive payment in full of the principal thereof (and premium, if
any) and interest due thereon before the Holders of the Securities are
entitled to receive any payment upon the principal (or premium, if
any) or interest, if any, on indebtedness evidenced by the Securities;
(2) any payment or distribution of assets of the Company of
any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled
except for the provisions of this Article Sixteen shall be paid by the
liquidating trustee or agent or other person making such payment or
distribution, whether a trustee in bankruptcy, a receiver or
liquidating trustee or otherwise, directly to the holders of Senior
Indebtedness or their representative or representatives or to the
trustee or trustees under any indenture under which any instruments
evidencing any of such Senior Indebtedness may have been issued,
ratably according to the aggregate amounts remaining unpaid on account
of the principal of (and premium, if any) and interest on the Senior
Indebtedness held or represented by each, to the extent necessary to
make payment in full of all Senior Indebtedness remaining unpaid,
after giving effect to any concurrent payment or distribution to the
holders of such Senior Indebtedness; and
(3) in the event that, notwithstanding the foregoing, any
payment or distribution of assets of the Company of any kind or
character, whether in cash, property or securities, shall be received
by the Trustee or the Holders of the Securities before all Senior
Indebtedness is paid in full, such payment or distribution shall be
paid over, upon written notice to the Trustee, to the holder of such
Senior Indebtedness or their representative or representatives or to
the trustee or trustees under any indenture under which any instrument
evidencing any of such Senior Indebtedness may have been issued,
ratably as aforesaid, for application to payment of all Senior
Indebtedness remaining unpaid until all such Senior Indebtedness shall
have been paid in full, after giving effect to any concurrent payment
or distribution to the holders of such Senior Indebtedness.
95
(b) Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the rights of the holders of
Senior Indebtedness to receive payments or distributions of cash, property or
securities of the Company applicable to Senior Indebtedness until the principal
of (and premium, if any) and interest, if any, on the Securities shall be paid
in full and no such payments or distributions to the Holders of the Securities
of cash, property or securities otherwise distributable to the holders of Senior
Indebtedness shall, as between the Company, its creditors other than the holders
of Senior Indebtedness, and the Holders of the Securities be deemed to be a
payment by the Company to or on account of the Securities. It is understood that
the provisions of this Article Sixteen are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on the
one hand, and the holders of the Senior Indebtedness, on the other hand. Nothing
contained in this Article Sixteen or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as between the Company, its creditors
other than the holders of Senior Indebtedness, and the Holders of the
Securities, the obligation of the Company, which is unconditional and absolute,
to pay to the Holders of the Securities the principal of (and premium, if any)
and interest, if any, on the Securities as and when the same shall become due
and payable in accordance with their terms, or to affect the relative rights of
the Holders of the Securities and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein or in the Securities
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under this Article Sixteen of the holders of Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy. Upon any payment or distribution of assets
of the Company referred to in this Article Sixteen, the Trustee, subject to the
provisions of Section 601, shall be entitled to rely upon a certificate of the
liquidating trustee or agent or other person making any distribution to the
Trustee for the purpose of ascertaining the Persons entitled to participate in
such distribution, the holders of Senior Indebtedness and other indebtedness of
the Company, the amount thereof or payable thereon, the amount or amounts paid
or distributed thereon and all other facts pertinent thereto or to this Article
Sixteen.
(c) The Trustee, however, shall not be deemed to owe any fiduciary
duty to the holders of Senior Indebtedness. The Trustee shall not be liable to
any such holder if it shall pay over or distribute to or on behalf of Holders of
Securities or the Company moneys or assets to which any holder of Senior
Indebtedness shall be entitled by virtue of this Article Sixteen.
(d) If the Trustee or any Holder of Securities does not file a proper
claim or proof of debt in the form required in any proceeding referred to above
prior to 30 days before the expiration of the time to file such claim in such
proceeding, then the holder of any Senior Indebtedness is hereby authorized, and
has the right, to file an appropriate claim or claims for or on behalf of such
Holder of Securities.
Section 1603. No Payment on Securities in Certain Circumstances.
-------------------------------------------------
(a) Except as otherwise specified pursuant to Section 301,
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(1) Upon the maturity of any Senior Indebtedness by lapse of
time, acceleration (unless waived, rescinded or annulled) or
otherwise, or upon any payment default (with or without the giving of
notice or lapse of time or both, in accordance with the terms of the
instrument governing such Senior Indebtedness, and without any waiver
or forgiveness) with respect to any Senior Indebtedness, all amounts
payable thereon shall first be paid in full, or such Senior
Indebtedness, before any payment is made, directly or indirectly by
set off or otherwise, on account of principal of, or interest on, the
Securities of such series or to acquire any of the Securities of such
series or on account of the redemption provisions of the Securities of
such series.
(2) Upon a default with respect to any Senior Indebtedness
(other than under circumstances when the terms of clause (1) of this
Section are applicable), as such default is defined therein or in the
instrument under which it is outstanding, permitting the holders to
accelerate the maturity thereof, upon written notice thereof given to
the Company and the Trustee by or on behalf of holders of such Senior
Indebtedness ("Default Notice"), then, unless and until such default
shall have been cured or waived by the holders of such Senior
Indebtedness or shall have ceased to exist, no direct or indirect
payment shall be made by the Company with respect to the principal of,
or interest on, the Securities of such series and the coupons, if any,
appertaining thereto or to acquire any of such Securities or on
account of the redemption provisions of the Securities of such series
and the coupons, if any, appertaining thereto; provided, that this
clause (2) shall not prevent the making of any payment (which is not
otherwise prohibited by clause (1) of this Section) for more than 179
days after the Default Notice shall have been given unless the Senior
Indebtedness in respect of which such event of default exists has been
declared due and payable in its entirety, in which case no such
payment may be made until such acceleration has been rescinded or
annulled or such Senior Indebtedness has been paid in full.
(3) If, notwithstanding the foregoing provisions of this
Section, any payment on account of principal of, or interest on, the
Securities of such series or of any coupon appertaining thereto shall
be received by the Trustee, by and Holder or by any Paying Agent (or,
if the Company is acting as its own Paying Agent, money for any such
payment is segregated and held in trust), then, unless and until such
payment is no longer prohibited by this Section, such payment (subject
to the provisions of Section 1603) shall be held in trust for the
benefit of the holders of Senior Indebtedness and, upon notice to the
Trustee or such Paying Agent from the representative of the holders of
the Senior Indebtedness and pursuant to the directions of such
representative, shall be paid over or delivered to the holders of
Senior Indebtedness or their representative(s), ratably according to
the aggregate amount remaining unpaid on account of the principal of
and interest on the Senior Indebtedness held or represented by each,
97
for application to the payment or prepayment of all Senior
Indebtedness remaining unpaid to the extent necessary to pay all
Senior Indebtedness in full in accordance with its terms, after giving
effect to any concurrent payment or distribution or provision therefor
to or for the holders of Senior Indebtedness. Promptly after becoming
aware thereof, the Company shall give written notice to the Trustee of
any event prohibiting payments on account of principal of, or interest
on, the Securities of any series and any coupons appertaining thereto
and, in such event, shall provide to the Trustee, in the form of an
Officers' Certificate, the names and addresses of the holders of such
Senior Indebtedness and their representative(s), if any, the amount of
the Senior Indebtedness held by each such holder, any information
necessary to calculate the daily or other increase in Senior
Indebtedness held by such holders and any other information which the
Trustee may reasonably request to comply with this Article. Subject to
the provisions of Section 1602 hereof, in the event that the Trustee
or the Paying Agent reasonably determines that additional evidence is
required with respect to any person as a holder of Senior Indebtedness
to participate in any payment or distribution pursuant to this
Article, the Trustee or the Paying Agent, as the case may be, may
request that such person furnish evidence to its reasonable as to the
extent such person is entitled to participate in such payment or
distribution and as to other facts pertinent to the rights of such
persons under this Article and if such evidence is not furnished, the
Trustee or the Paying Agent, as the case may be, may defer any payment
to such person pending judicial determination as to the right of such
person to receive such payment.
Section 1604. Payments on Securities Permitted.
--------------------------------
(a) Nothing contained in this Indenture or in any of the Securities
shall,
(1) affect the obligation of the Company to make, or prevent
the Company from making, at any time except as provided in Sections
1602 and 1603, payments of principal of (or premium, if any) or
interest, if any, on the Securities, or
(2) prevent the application by the Trustee of any moneys
deposited with it hereunder to the payment of or on account of the
principal of (or premium, if any) or interest, if any, on the
Securities, unless the Trustee shall have received at its Corporate
Trust Office written notice of any event prohibiting the making of
such payment more than two Business Days prior to the date fixed for
such payment.
Section 1605. Authorization of Holders to Trustee to Effect Subordination.
-----------------------------------------------------------
Each Holder of Securities by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
98
appropriate to effectuate the subordination as provided in this Article Sixteen
and appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1606. Notices to Trustee.
------------------
Notwithstanding the provisions of this Article Sixteen or any other
provisions of this Indenture, neither the Trustee nor any Paying Agent (other
than the Company) shall be charged with knowledge of the existence of any Senior
Indebtedness or of any event which would prohibit the making of any payment of
moneys to or by the Trustee or such Paying Agent, unless and until the Trustee
or such Paying Agent shall have received (in the case of the Trustee, at its
Corporate Trust Office) written notice thereof from the Company or from the
holder of any Senior Indebtedness or from the trustee for any such holder,
together with proof satisfactory to the Trustee of such holding of Senior
Indebtedness or of the authority of such trustee; provided, that if at least two
Business Days prior to the date upon which by the terms hereof any such moneys
may become payable for any purpose (including, without limitation, the payment
of either the principal (or premium, if any) or interest, if any, on any
Security) the Trustee shall not have received with respect to such moneys the
notice provided for in this Section 1606, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such moneys and to apply the same to the purpose for which they were
received, and shall not be affected by any notice to the contrary, which may be
received by it within two Business Days prior to such date. The Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such a notice has been given by a
holder of Senior Indebtedness or a trustee on behalf of any such holder. In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article Sixteen, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article Sixteen and, if such evidence is not furnished,
the Trustee may defer any payment to such Person pending judicial determination
as to the right of such Person to receive such payment.
Section 1607. Trustee as Holder of Senior Indebtedness.
----------------------------------------
(a) The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article Sixteen in respect of any Senior
Indebtedness at any time held by it to the same extent as any other holder of
Senior Indebtedness and nothing in Section 613 or elsewhere in this Indenture
shall be construed to deprive the Trustee of any of its rights as such holder.
(b) Nothing in this Article Sixteen shall apply to claims of, or
payments to, the Trustee under or pursuant to Section 606.
99
Section 1608. Modifications of Terms of Senior Indebtedness.
---------------------------------------------
Any renewal or extension of the time of payment of any Senior
Indebtedness or the exercise by the holders of Senior Indebtedness of any of
their rights under any instrument creating or evidencing Senior Indebtedness,
including, without limitation, the waiver of default thereunder, may be made or
done all without notice to or assent from the Holders of the Securities or the
Trustee. No compromise, alteration, amendment, modification, extension, renewal
or other change of, or waiver, consent or other action in respect of, any
liability or obligation under or in respect of, or of any of the terms,
covenants or conditions of any indenture or other instrument under which any
Senior Indebtedness is outstanding or of such Senior Indebtedness, whether or
not such release is in accordance with the provisions of any applicable
document, shall in any way alter or affect any of the provisions of this Article
Sixteen or of the Securities relating to the subordination thereof.
Section 1609. Reliance on Judicial Order or Certificate of Liquidating
--------------------------------------------------------
Agent.
-----
Upon any payment or distribution of assets of the Company referred to
in this Article Sixteen, the Trustee and the Holders of the Securities shall be
entitled to rely upon any order or decree entered by any court of competent
jurisdiction in which such insolvency, bankruptcy, receivership, liquidation,
reorganization, dissolution, winding up or similar case or proceeding is
pending, or a certificate of the trustee in bankruptcy, liquidating trustee,
custodian, receiver, assignee for the benefit of creditors, agent or other
person making such payment or distribution, delivered to the Trustee or to the
Holders of Securities, for the purpose of ascertaining the persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article Sixteen.
100
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
CLEARONE COMMUNICATIONS, INC.
By
------------------------------------
Name:
Title:
THE BANK OF NEW YORK,
as Trustee
By
------------------------------------
Name:
Title:
101
EXHIBIT A
FORMS OF CERTIFICATES
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i) are
owned by person(s) that are not citizens or residents of the United States,
domestic partnerships, domestic corporations or any estate the income of which
is subject to United States federal income taxation regardless of its source or
a trust whose administration is subject to the primary supervision of a United
States court and which has one or more United States persons who have the
authority to control all of its decisions ("United States person(s)"), (ii) are
owned by United States person(s) that are (a) foreign branches of United States
financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as
"financial institutions") purchasing for their own account or for resale, or (b)
United States person(s) who acquired the Securities through foreign branches of
United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a)
or (b), each such United States financial institution hereby agrees, on its own
behalf or through its agent, that you may advise ClearOne Communications, Inc.
or its agent that such financial institution will comply with the requirements
of Section 165(j)(3)(A), (B) or (C) of the United States Internal Revenue Code
of 1986, as amended, and the regulations thereunder), or (iii) are owned by
United States or foreign financial institution(s) for purposes of resale during
the restricted period (as defined in United States Treasury Regulations Section
1.163-5(c)(2)(i)(D)(7)), and, in addition, if the owner is a United States or
foreign financial institution described in clause (iii) above (whether or not
also described in clause (i) or (ii)), this is to further certify that such
financial institution has not acquired the Securities for purposes of resale
directly or indirectly to a United States person or to a person within the
United States or its possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U. S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
We undertake to advise you promptly by tested telex on or prior to the
date on which you intend to submit your certification relating to the
above-captioned Securities held by you for our account in accordance with your
Operating Procedures if any applicable statement herein is not correct on such
date, and in the absence of any such notification it may be assumed that this
certification applies as of such date. This certificate excepts and does not
102
relate to [U. S. $]_____________ of such interest in the above-captioned
Securities in respect of which we are not able to certify and as to which we
understand an exchange for an interest in a Permanent Global Security or an
exchange for and delivery of definitive Securities (or, if relevant, collection
of any interest) cannot be made until we do so certify.
We understand that this certificate may be required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________________
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
[Name of Person Making Certification]
------------------------------
(Authorized Signatory)
Name:
Title:
A-1-2
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND
CLEARSTREAM BANKING SOCIETE ANONYME IN CONNECTION
WITH THE EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL
SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission from
each of the persons appearing in our records as persons entitled to a portion of
the principal amount set forth below (our "Member Organizations") substantially
in the form attached hereto, as of the date hereof, [U.S.$] __________________
principal amount of the above-captioned Securities (i) is owned by person(s)
that are not citizens or residents of the United States, domestic partnerships,
domestic corporations or any estate the income of which is subject to United
States Federal income taxation regardless of its source or a trust whose
administration is subject to the primary supervision of a United States court
and which has one or more United States persons who have the authority to
control all of its decisions ("United States person(s)"), (ii) is owned by
United States person(s) that are (a) foreign branches of United States financial
institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as "financial institutions")
purchasing for their own account or for resale, or (b) United States person(s)
who acquired the Securities through foreign branches of United States financial
institutions and who hold the Securities through such United States financial
institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that
we may advise ClearOne Communications, Inc. or its agent that such financial
institution will comply with the requirements of Section 165(j)(3)(A), (B) or
(C) of the Internal Revenue Code of 1986, as amended, and the regulations
thereunder), or (iii) is owned by United States or foreign financial
institution(s) for purposes of resale during the restricted period (as defined
in United States Treasury Regulations Section 1.163-5(c)(2)(i)(D)(7)), and, to
the further effect, that financial institutions described in clause (iii) above
(whether or not also described in clause (i) or (ii)) have certified that they
have not acquired the Securities for purposes of resale directly or indirectly
to a United States person or to a person within the United States or its
possessions.
As used herein, "United States" means the United States of America
(including the states and the District of Columbia); and its "possessions"
include Puerto Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island
and the Northern Mariana Islands.
103
We further certify that (i) we are not making available herewith for
exchange (or, if relevant, collection of any interest) any portion of the
temporary global Security representing the above-captioned Securities excepted
in the above-referenced certificates of Member Organizations and (ii) as of the
date hereof we have not received any notification from any of our Member
Organizations to the effect that the statements made by such Member
Organizations with respect to any portion of the part submitted herewith for
exchange (or, if relevant, collection of any interest) are no longer true and
cannot be relied upon as of the date hereof.
We understand that this certification is required in connection with
certain tax legislation in the United States. If administrative or legal
proceedings are commenced or threatened in connection with which this
certificate is or would be relevant, we irrevocably authorize you to produce
this certificate or a copy thereof to any interested party in such proceedings.
Dated: ________________________
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
[Morgan Guaranty Trust Company of New
York, Brussels Office,] as Operator of
the Euroclear System
[Clearstream Banking societe anonyme]
By
---------------------------------
A-2-2
Exhibit 12.1
ClearOne Communications, Inc.
Statement re: Computation of Ratio of Earnings to Fixed Charges
(In thousands, except ratios)
Year Ended
2002 2001 2000 1999 1998
-----------------------------------------------
Fixed Charges:
Interest on debt $ 23 $ 42 $ 66 $ 148 $ 240
Interest portion of rental expense 440 316 199 154 80
-----------------------------------------------
Total fixed charges $ 464 $ 358 $ 265 $ 302 $ 320
===============================================
Earnings:
Consolidated pre-tax income from
continuing operations $11,242 $ 8,844 $ 6,720 $ 3,229 $ 988
Add back: fixed charges 464 358 265 302 320
-----------------------------------------------
Total earnings $11,706 $ 9,202 $ 6,985 $ 3,531 $ 1,308
===============================================
Ratio of earnings to fixed charges 25.2x 25.7x 26.4x 11.7x 4.1x
Exhibit 23.3
CONSENT OF INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement on Form S-3/A and related Prospectuses of ClearOne
Communications, Inc., filed with the Securities and Exchange Commission on
November 1, 2002, and to the incorporation by reference therein of our report
dated August 9, 2002 (except note 20 as to which the date is August 27, 2002),
with respect to the consolidated financial statements of ClearOne
Communications, Inc., included in its Annual Report (Form 10-K) for the year
ended June 30, 2002, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
November 1, 2002
Exhibit 23.4
INDEPENDENT AUDITORS' CONSENT
We consent to the incorporation by reference in this Registration Statement of
ClearOne Communications, Inc. on Form S-3/A of our report dated March 1, 2002,
appearing in the Current Report on Form 8-K/A of ClearOne Communications, Inc.,
filed with the Securities and Exchange Commission on August 14, 2002, and to the
reference to us under the heading "Experts" in the Prospectuses, which are part
of this Registration Statement.
/s/ DELOITTE & TOUCHE LLP
Minneapolis, Minnesota
November 1, 2002
