INDENTURE, dated as of ____________, _______, between SIRIUS SATELLITE RADIO INC., a Delaware corporation
(hereinafter called the “Company”), having its principal office at 1221 Avenue of
the Americas, 36th Floor, New York, New York 10020 and , a corporation organized under the laws of , as Trustee hereunder (hereinafter called the “Trustee”), having its Corporate Trust Office
at.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its lawful purposes senior subordinated
debt securities (hereinafter called the “Securities”) evidencing its senior subordinated
indebtedness, and has duly authorized the execution and delivery of this Indenture to provide for
the issuance from time to time of the Securities, unlimited as to principal amount, to bear interest
at the rates or formulas, to mature at such times and to have such other provisions as shall be fixed
as hereinafter provided.
This Indenture is subject to the provisions of the Trust Indenture Act of 1939 that are deemed to be
incorporated into this Indenture and shall, to the extent applicable, be governed by such provisions.
All things necessary to make this Indenture a valid agreement of the Company, in accordance with its
terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities by the holders thereof,
it is mutually covenanted and agreed, for the equal and proportionate benefit of all the holders
of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions. For all purposes of this Indenture, except as otherwise expressly provided or unless the context
otherwise requires:
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(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; |
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(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; |
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(3) all accounting terms not otherwise defined herein have the meanings assigned to them in accordance
with GAAP; |
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(4) the word “including” means “including without limitation,” and |
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(5) 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. |
“Act,” when used with respect to any Holder, has the meaning specified in Section 1.4.
“Additional Amounts” means any additional amounts which are required by a Security or by or pursuant to a Board Resolution,
under circumstances specified therein, to be paid by the Company in respect of certain taxes imposed
on certain Holders and which are owing to such Holders.
“Affiliate” of any specified Person means any other Person directly or indirectly controlling or controlled
by or under direct or indirect common control with such specified Person. For the purposes of this
definition, “control” when used with respect to any specified Person means the power to
direct the management and policies of such Person, directly or indirectly, whether through the ownership
of voting securities, by contract or otherwise; and the terms “controlling” and “controlled”
have meanings correlative to the foregoing.
“Authenticating Agent” means any authenticating agent appointed by the Trustee pursuant to Section 6.11.
“Authorized Newspaper” means a newspaper, printed 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. Whenever successive publications are required
to be made in Authorized Newspapers, the successive publications may be made in the same or in different
Authorized Newspapers in the same city meeting the foregoing requirements and in each case on any
Business Day.
“Bankruptcy Law” has the meaning specified in Section 5.1.
“Bearer Security” means any Security established pursuant to Section 2.1 which is payable to bearer.
“Board of Directors” means the board of directors of the Company, the executive committee of that board or any committee
of that board duly authorized to act hereunder.
“Board Resolution” means a copy of a resolution certified by the Secretary or an Assistant Secretary of the Company
to have been duly adopted by the Board of Directors and to be in full force and effect on the date
of such certification, and delivered to the Trustee.
“Business Day,” when used with respect to any Place of Payment or any other particular location referred to
in this Indenture or in the Securities, means, unless otherwise specified with respect to any Securities
pursuant to Section 3.1, any day, other than a Saturday or Sunday, that is neither a legal holiday
nor a day on which banking institutions in that Place of
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Payment or particular location are authorized or required by law, regulation or executive order to
close.
“CEDEL” means Centrale de Livraison de Valeurs Mobilieres, S.A., or its successor.
“Commission” means the Securities and Exchange Commission, as from time to time constituted, created under
the Securities Exchange Act of 1934, or, if at any time after execution of this instrument such Commission
is not existing and performing the duties now assigned to it under the Trust Indenture Act, then
the body performing such duties on such date.
“Common Depositary” has the meaning specified in Section 3.4.
“Common Stock” means, with respect to any Person, capital stock issued by such Person other than Preferred
Stock.
“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 Chief
Executive Officer, Chief Financial Officer, the President or a Vice President of the Company and
delivered to the Trustee.
“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.
“corporation” means a corporation, association, partnership, companies (including limited liability companies)
joint-stock company or business trust.
“coupon” means any interest coupon appertaining to a Bearer Security.
“Currency Conversion Event” means the cessation of use of (i) a Foreign Currency both by the government of the country which
issued such currency and for the settlement of transactions by a central bank or other public institutions
of or within the international banking community, (ii) the ECU both within the European Monetary
System and for the settlement of transactions by public institutions of or within the European Communities
or (iii) any currency unit (or composite currency) other than the ECU for the purposes for which
it was established.
“Custodian” has the meaning specified in Section 5.1.
“Defaulted Interest” has the meaning specified in Section 3.7.
“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.
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“DTC” has the meaning specified in Section 3.4.
“ECU” means the European Currency Unit as defined and revised from time to time by the Council of
the European Communities.
“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 Economic Community, the European Coal and Steel Community and the European
Atomic Energy Community.
“European Monetary System” means the European Monetary System established by the Resolution of December 5, 1978 of the
Council of the European Communities.
“Event of Default” has the meaning specified in Article 5.
“Foreign Currency” means any currency, currency unit or composite currency, including the ECU, 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.
“GAAP” means generally accepted accounting principles, as in effect from time to time, as used in the
United States, applied on a consistent basis.
“Government Obligations” means securities which are (i) direct obligations of the United States of America or the government
which issued the Foreign Currency in which the Securities of a particular series are payable, for
the payment of which its full faith and credit is pledged or (ii) obligations of a Person controlled
or supervised by and acting as an agency or instrumentality of the United States of America or such
government which issued the foreign currency in which the Securities of such series are payable,
the payment of which is unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government, which, in either case, are not callable or redeemable
at the option of the issuer thereof, and shall also include a depository receipt issued by a bank
or trust company as custodian with respect to any such Government Obligation or a specific payment
of interest on or principal of any such Government Obligation held by such custodian for the account
of the holder of a depository receipt, provided that (except as required by law) such custodian is
not authorized to make any deduction from the amount payable to the holder of such depository receipt
from any amount received by the custodian in respect of the Government Obligation or the specific
payment of interest on or principal of the Government Obligation evidenced by such depository receipt.
“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 3.1; provided, however, that, if at any time
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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 particular series of Securities for which such Person is Trustee established as contemplated
by Section 3.1, 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 the terms of which provide that the principal amount thereof payable at Stated
Maturity may be more or less than the principal face amount thereof at original issuance.
“interest,” 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 10.8, 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.
“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 or otherwise.
“Material Adverse Effect” has the meaning specified in Section 10.4.
“Officers’ Certificate” means a certificate signed by the Chairman of the Board of Directors, the President or a Vice
President and by the Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee.
“Opinion of Counsel” means a written opinion of counsel, who may be counsel for the Company or who may be an employee
of or other counsel for the Company and who shall be reasonably satisfactory to the Trustee.
“Original Issue Discount Security” means any Security which provides for an amount less than the principal amount thereof to be
due and payable upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2.
“Outstanding,” when used with respect to Securities, means, as of the date of determination, all Securities
theretofore authenticated and delivered under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
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(ii) Securities, or portions thereof, for whose payment or redemption or repayment at the option of the
Holder money in the necessary amount has been theretofore deposited with the Trustee or any Paying
Agent (other than the Company) in trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such Securities and any coupons appertaining
thereto; provided that, if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the Trustee has been made; |
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(iii) Securities, except to the extent provided in Sections 14.2 and 14.3, with respect to which the Company
has effected defeasance and/or covenant defeasance as provided in Article 14; |
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(iv) Securities which have been paid pursuant to Section 3.6 or in exchange for or in lieu of which other
Securities have been authenticated and delivered pursuant to this Indenture, other than any such
Securities in respect of which there shall have been presented to the Trustee proof satisfactory
to it that such Securities are held by a bona fide purchaser in whose hands such Securities are valid
obligations of the Company; and |
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(v) Securities converted into Common Stock or Preferred Stock pursuant to or in accordance with this Indenture
if the terms of such Securities provide for convertibility pursuant to Section 3.1; |
provided, however, that in determining whether the Holders of the requisite principal amount of the
Outstanding Securities have given any request, demand, authorization, direction, notice, consent
or waiver hereunder or are present at a meeting of Holders for quorum purposes, and for the purpose
of making the calculations required by TIA Section 313, (i) the principal amount of an Original Issue
Discount Security that may be counted in making such determination or calculation and that shall
be deemed to be Outstanding for such purpose shall be equal to the amount of principal thereof that
would be (or shall have been declared to be) due and payable, at the time of such determination,
upon a declaration of acceleration of the maturity thereof pursuant to Section 5.2, (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 pursuant to Section 3.1 as of the date such Security is originally issued
by the Company, of the principal amount (or, in the case of an Original Issue Discount Security,
the Dollar equivalent as of such date of original issuance of the amount determined as provided in
clause (i) above) of such Security, (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 3.1, 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 the Trustee 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
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satisfaction of the Trustee the pledgee’s right so to act with respect to such Securities and
that the pledgee is not the Company or any other obligor upon the Securities or any Affiliate of
the Company or of such other obligor.
“Paying Agent” means any Person authorized by the Company to pay the principal of (and premium, if any) or
interest on any Securities or coupons on behalf of the Company.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization or government or any agency or political subdivision thereof.
“Place of Payment,” when used with respect to the Securities of or within any series, means the place or places
where the principal of (and premium, if any) and interest on such Securities are payable as specified
as contemplated by Sections 3.1 and 10.2.
“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 3.6 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.
“Preferred Stock” means, with respect to any Person, capital shares issued by such Person that are entitled to
a preference or priority over any other capital shares issued by such Person upon any distribution
of such Person’s assets, whether by dividend or upon liquidation, dissolution or winding up.
“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 as set forth in such Security.
“Redemption Price,” when used with respect to any Security to be redeemed, means the price at which it is to be
redeemed pursuant to this Indenture.
“Registered Security” shall mean any Security which is registered in the Security Register.
“Regular Record Date” for the interest payable on any Interest Payment Date on the Registered Securities of or within
any series means the date specified for that purpose as contemplated by Section 3.1, whether or not
a Business Day.
“Repurchase 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.
“Repurchase 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.
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“Representative” means the indenture trustee or other trustee, agent or representative for an issue of Senior
Indebtedness.
“Responsible Officer,” when used with respect to the Trustee, means the chairman or vice-chairman of the Board of
Directors, the chairman or vice-chairman of the executive committee of the Board of Directors, the
president, any vice president (whether or not designated by a number or a word or words added before
or after the title “vice president,”) the secretary, any assistant secretary, the treasurer,
any assistant treasurer, any corporate trust officer, the controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of the above designated
officers and also means, with respect to a particular corporate trust matter, any other officer to
whom such matter is referred because of such officer’s knowledge and familiarity with the particular
subject.
“Security” has the meaning stated in the first recital of this Indenture and, more particularly, means
any Security or Securities authenticated and delivered under this Indenture; provided, however, that,
if at any time there is more than one Person acting as Trustee under this Indenture, “Securities”
with respect to the Indenture as to which such Person is Trustee shall have the meaning stated in
the first recital of this Indenture and shall more particularly mean Securities authenticated and
delivered under this Indenture, exclusive, however, of Securities of any series as to which such
Person is not Trustee.
“Security Register” and “Security Registrar” have the respective meanings specified in Section 3.5.
“Senior Indebtedness” means: (1) the principal, premium, if any, interest and all other amounts owed in respect of
all the Company’s (A) indebtedness for money borrowed and (B) indebtedness evidenced by securities,
debentures, bonds or other similar instruments, (2) all of the Company’s capital lease obligations,
(3) all obligations issued or assumed by the Company as the deferred purchase price of property,
all of the Company’s conditional sale obligations and all of the Company’s obligations
under any title retention agreement (but excluding trade accounts payable arising in the ordinary
course of business), (4) all of the Company’s obligations for the reimbursement of any letter
of credit, banker’s acceptance, security purchase facility or similar credit transaction, (5)
all obligations of the type referred to in clauses (1) through (4) above of other persons for the
payment of which the Company is responsible or liable as obligor, guarantor or otherwise, and (6)
all obligations of the type referred to in clauses (1) through (5) above of other persons secured
by any lien on any of the Company’s properties or assets (whether or not such obligation is
assumed by the Company), except for (x) any such indebtedness that is by its terms subordinated to
or pari passu with the Securities and (y) any indebtedness between or among the Company or affiliates
of the Company, including all other debt securities and guarantees in respect of those debt securities
issued to any trust, or trustees of such trust, partnership or other entity affiliated with the Company
that is, directly or indirectly, a financing vehicle of the Company (a “Financing Entity”)
in connection with the issuance by such Financing Entity of preferred securities or other securities
that rank pari passu with, or junior to, the Securities.
“Senior Subordinated Indebtedness” means any Indebtedness which ranks pari passu with the Securities.
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“Significant Subsidiary” means any Subsidiary which is a “significant subsidiary” (as defined in Article 1,
Rule 1-02 of Regulation S-X, promulgated under the Securities Act of 1933) of 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 3.7.
“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.
“Subordinated Indebtedness” means Indebtedness which is by its terms subordinated in right of payment to the Securities.
“Subsidiary” means a corporation a majority of the outstanding voting stock of which is owned, directly or
indirectly, by the Company or by one or more other Subsidiaries of the Company, or by the Company
and one or more other Subsidiaries. For the purposes of this definition, “voting stock”
means stock that ordinarily has voting power for the election of directors, whether at all times
or only so long as no senior class of stock has such voting power by reason of any contingency.
“Trust Indenture Act” or “TIA” means the Trust Indenture Act of 1939, as in force at the date hereof; provided, however, that
in the event the Trust Indenture Act of 1939 or such rules and regulations are amended after such
date, “Trust Indenture Act” means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 and such rules and regulations as so amended.
“Trustee” means the Person named as the “Trustee” in the first paragraph of this Indenture until
a successor Trustee shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter “Trustee” shall mean or include each Person who is then a Trustee hereunder;
provided, however, that if at any time there is more than one such Person, “Trustee” as
used with respect to the Securities of any series shall mean only the Trustee with respect to Securities
of that series.
“United States” means, unless otherwise specified with respect to any Securities pursuant to Section 3.1, 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 3.1, an
individual who is a citizen or resident of the United States, a corporation, partnership or other
entity created or organized in or under the laws of the United States or an estate or trust the income
of which is subject to United States federal income taxation regardless of its source.
“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)
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and as set forth in such Security in accordance with generally accepted United States bond yield computation
principles.
Section 1.2 Compliance Certificates and Opinions. Upon any application or request by the Company to the Trustee to take any action under any
provision of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the opinion of such counsel
all such conditions precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request, no additional certificate
or opinion need be furnished.
Every certificate or opinion with respect to compliance with a condition or covenant provided for in
this Indenture (including certificates delivered pursuant to Section 10.8) 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 1.3 Form of Documents Delivered to Trustee. In any case where several matters are required to be certified by, or covered by an opinion
of, any specified Person, it is not necessary that all such matters be certified by, or covered by
the opinion of, only one such Person, or that they be so certified or covered by only one document,
but one such Person may certify or give an opinion as to some matters and one or more other such
Persons as to other matters, and any such Person may certify or give an opinion as to such matters
in one or several documents.
Any certificate or opinion of an officer of the Company may be based, insofar as it relates to legal
matters, upon an Opinion of Counsel, or a certificate or representations by counsel, unless such
officer knows, or in the exercise of reasonable care should know, that the opinion, certificate or
representations with respect to the matters upon which his certificate or opinion is based are erroneous.
Any such Opinion of Counsel or certificate or representations may be based, insofar as it relates
to factual matters, upon a certificate or opinion of, or representations by, an officer or officers
of the Company stating that the information as to such factual matters is in the possession of the
Company, unless such counsel knows that the certificate or opinion or representations as to such
matters are erroneous.
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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 1.4 Acts of Holders. (a) Any request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders of the Outstanding Securities of
all series or one or more series, as the case may be, may be embodied in and evidenced by one or
more instruments of substantially similar tenor signed by such Holders in person or by agents duly
appointed in writing. If Securities of a series are issuable as Bearer Securities, any request, demand,
authorization, direction, notice, consent, waiver or other action provided by this Indenture to be
given or taken by Holders of Securities of such series may, alternatively, be embodied in and evidenced
by the record of Holders of Securities of such series voting in favor thereof, either in person or
by proxies duly appointed in writing, at any meeting of Holders of Securities of such series duly
called and held in accordance with the provisions of the supplemental indenture with respect to such
series, 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 1.4.
(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 his 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 reasonable manner
which the Trustee deems sufficient.
(c) The ownership of Registered Securities shall be proved by the Security Register.
(d) The ownership of Bearer Securities may be proved by the production of such Bearer Securities or by
a certificate executed, as depositary, by any trust company, bank, banker or other depositary, 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, 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
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affidavit bearing a later date issued in respect of the same Bearer Security is produced, or (2) such
Bearer Security is produced to the Trustee by some other Person, or (3) such Bearer Security is surrendered
in exchange for a Registered Security, or (4) such Bearer Security is no longer Outstanding. The
ownership of Bearer Securities may also be proved in any other manner which the Trustee deems sufficient.
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(e) (i) 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; provided that the Company may not
set a record date for, and the provisions of this paragraph shall not apply with respect to, the
giving or making of any notice, declaration, request or direction referred to in clause (e)(iii)
below. Notwithstanding TIA Section 316(c), such record date shall be the record date specified in
or pursuant to such Board Resolution, which shall be a date not earlier than the date 30 days prior
to the first solicitation of Holders generally in connection therewith and not later than the date
such solicitation is completed. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after such record date, but
only the Holders of record at the close of business on such record date shall be deemed to be Holders
for the purposes of determining whether Holders of the requisite proportion of Outstanding Securities
have authorized or agreed or consented to such request, demand, authorization, direction, notice,
consent, waiver or other Act, and for that purpose the Outstanding Securities shall be computed as
of such record date; provided that no such authorization, agreement or consent by the Holders on
such record date shall be deemed effective unless it shall become effective pursuant to the provisions
of this Indenture not later than eleven months after the record date. |
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(ii) Subject to clause (e)(iii) below, in the absence of any such record date fixed by the Company, regardless
as to whether a solicitation of the Holders is occurring on behalf of the Company or any Holder,
the Trustee may, at its option, fix in advance a record date for the determination of such Holders
entitled to give such request, demand, authorization, direction, notice, consent, waiver or other
Act, but the Trustee shall have no obligation to do so. Any such record date shall be a date not
more than 30 days prior to the first solicitation of Holders generally in connection therewith and
no later than the date of such solicitation. |
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(iii) The Trustee may set any day as a record date for the purpose of determining the Holders of Outstanding
Securities entitled to join in the giving or making of (i) any Notice of Default, (ii) any declaration
of acceleration referred to in Section 5.2, (iii) any request to institute proceedings referred to
in Section 5.7(2), or (iv) any direction referred to in Section 5.12. If any record date is set pursuant
to this paragraph, the Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to join in such notice, declaration, request or direction, whether or not such
Holders remain Holders after such record date; provided that no such action shall be effective hereunder
unless taken on or prior to any applicable expiration date by Holders |
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of the requisite principal amount of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for any action (whereupon
the record date previously set shall automatically and without any action by any Person be cancelled
and of no effect), nor shall anything in this paragraph be construed to render ineffective any action
taken by Holders of the requisite principal amount of Outstanding Securities on the date such action
is taken. Promptly after any record date is set pursuant to this paragraph, the Trustee, at the Company’s
expense, shall cause notice of such record date, the proposed action by Holders and the applicable
expiration date to be given to the Company in writing and to each Holder of Securities in the manner
set forth in Section 1.6. |
(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 1.5 Notices, etc., to Trustee and Company. Any request, demand, authorization, direction, notice, consent, waiver or Act of Holders or
other document provided or permitted by this Indenture to be made upon, given or furnished to, or
filed with,
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(1) the Trustee by any Holder or by the Company shall be sufficient for every purpose hereunder if made,
given, furnished or filed in writing to or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration; provided that notices to the Trustee shall only be deemed given when
actually received by the Trustee, |
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(2) the Company by the Trustee or by any Holder shall be sufficient for every purpose hereunder (unless
otherwise herein expressly provided) if in writing and mailed, first class postage prepaid, to the
Company addressed to it at the address of its principal office specified in the first paragraph of
this Indenture or at any other address previously furnished in writing to the Trustee by the Company. |
Section 1.6 Notice to Holders; Waiver. Where this Indenture provides for notice of any event to Holders of Registered Securities by
the Company or the Trustee, such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each such Holder affected by
such event, at his address as it appears in the Security Register, not later than the latest date,
and not earlier than the earliest date, prescribed for the giving of such notice. In any case where
notice to Holders of Registered Securities is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders of Registered Securities or the sufficiency of any notice
to Holders of Bearer Securities given as provided herein. Any notice mailed to a Holder in the manner
herein prescribed shall be conclusively deemed to have been received by such Holder, whether or not
such Holder actually receives such notice.
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If by reason of the suspension of or irregularities in regular mail service or by reason of any other
cause it shall be impracticable to give such notice by mail, then such notification to Holders of
Registered Securities as shall be made with the approval of the Trustee shall constitute a sufficient
notification to such Holders for every purpose hereunder.
Except as otherwise expressly provided herein or otherwise specified with respect to any Securities
pursuant to Section 3.1, where this Indenture provides for notice to Holders of Bearer Securities
of any event, such notice shall be sufficiently given if published in an Authorized Newspaper in
New York City and in such other city or cities as may be specified in such Securities on a Business
Day, such publication to be not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. Any such notice shall be deemed to have been given on the
date of such publication or, if published more than once, on the date of the first such publication.
If by reason of the suspension of publication of any Authorized Newspaper or Authorized Newspapers
or by reason of any other cause it shall be impracticable to publish any notice to Holders of Bearer
Securities as provided above, then such notification to Holders of Bearer Securities as shall be
given with the approval of the Trustee shall constitute sufficient notice to such Holders for every
purpose hereunder. Neither the failure to give notice by publication to any particular 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.
Any request, demand, authorization, direction, notice, consent or waiver required or permitted under
this Indenture shall be in the English language, except that any published notice may be in an official
language of the country of publication.
Where this Indenture provides for notice in any manner, such notice may be waived in writing by the
Person entitled to receive such notice, either before or after the event, and such waiver shall be
the equivalent of such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action taken in reliance upon
such waiver.
Section 1.7 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 1.8 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 1.9 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 1.10 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
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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 1.11 Governing Law. This Indenture and the Securities and coupons shall be governed by and construed in accordance
with the law of the State of New York without regard to conflicts of laws principles. This Indenture
is subject to the provisions of the TIA that are required to be part of this Indenture and shall,
to the extent applicable, be governed by such provisions.
Section 1.12 Legal Holidays. In any case where any Interest Payment Date, Redemption Date, Repurchase Date, sinking fund
payment date, Stated Maturity or Maturity of any Security or the last date on which a Holder has
the right to convert his Securities 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 hereof), payment
of interest or any Additional Amounts or principal (and premium, 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,
Repurchase Date or sinking fund payment date, or at the Stated Maturity or Maturity or on such last
day for conversion; provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repurchase Date, sinking fund payment
date, Stated Maturity or Maturity or on such last day for conversion, as the case may be.
Section 1.13 Personal Immunity from Liability for Incorporators, Stockholders, Etc. No recourse shall be had for the payment of the principal of or premium, if any, or interest,
if any, on any Security, or for any claim based thereon, or otherwise in respect of any Security,
or based on or in respect of this Indenture or any indenture supplemental hereto, against any incorporator,
or against any past, present or future stockholder, director or officer, as such, of the Company
or of any successor corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise, all such liability being expressly
waived and released as a condition of, and as consideration for, the execution of this Indenture
and the issue of Securities.
Section 1.14 Conflict with Trust Indenture Act. If any provision hereof limits, qualifies or conflicts with a provision of the TIA which is
required under such Act to be a part of and govern this Indenture, the latter provision shall control.
If any provision of this Indenture modifies or excludes any provision of the TIA which may be so
modified or excluded, the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be. To the extent a Security conflicts with a provision in the
Indenture, the Indenture governs.
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ARTICLE 2
SECURITIES FORMS
Section 2.1 Forms of Securities. The Registered Securities, if any, of each series and the Bearer Securities, if any, of each
series and related coupons shall be in substantially the forms as shall be established in one or
more indentures supplemental hereto or approved from time to time by or pursuant to a Board Resolution
in accordance with Section 3.1, 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 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 securities exchange on
which the Securities may be listed or any depositary therefor, or to conform to usage or as may,
consistently herewith, be determined by the officers executing such Securities as evidenced by their
execution of the Securities.
Unless otherwise specified as contemplated by Section 3.1, Bearer Securities shall have interest coupons
attached.
The definitive Securities and coupons shall be printed, lithographed or engraved or produced by any
combination of these methods on a steel engraved border or steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such Securities or coupons, as evidenced
by their execution of such Securities or coupons.
Section 2.2 Form of Trustee’s Certificate of Authentication. Subject to Section 6.12, the Trustee’s certificate of authentication shall be in substantially
the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned
Indenture.
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as Trustee |
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By |
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Authorized Signatory |
Section 2.3 Securities Issuable in Global Form. If Securities of or within a series are issuable in global form, as specified as contemplated
by Section 3.1, then, notwithstanding clause (8) of Section 3.1 and the provisions of Section 3.2,
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
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the Company Order to be delivered to the Trustee pursuant to Section 3.3 or 3.4. Subject to the provisions
of Section 3.3 and, if applicable, Section 3.4, 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 3.3 or 3.4 has
been, or simultaneously is, delivered, any instructions by the Company with respect to endorsement
or delivery or redelivery of a Security in global form shall be in writing but need not comply with
Section 1.2 and need not be accompanied by an Opinion of Counsel.
The provisions of the last sentence of Section 3.3 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 1.2 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 3.3.
Notwithstanding the provisions of Section 3.7, unless otherwise specified as contemplated by Section
3.1, payment of principal of and any premium and interest on any Security in permanent global form
shall be made to the Person or Persons specified therein.
Notwithstanding the provisions of Section 3.8 and except as provided in the preceding paragraph, the
Company, the Trustee and any agent of the Company and the Trustee shall treat as the Holder of such
principal amount of Outstanding Securities represented by a permanent global Security (i) in the
case of a permanent global Security in registered form, the Holder of such permanent global Security
in registered form, or (ii) in the case of a permanent global Security in bearer form, Euroclear
or CEDEL.
ARTICLE 3
THE SECURITIES
Section 3.1 Amount Unlimited; Issuable in Series. The aggregate principal amount of Securities which may be authenticated and delivered under
this Indenture is unlimited.
The Securities may be issued in one or more series. 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
3.3, 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 (22) below) if so provided, may be determined from time to time by the Company with
respect to unissued Securities of the series when issued from time to time):
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(1) the title of the Securities of the series (which shall distinguish the Securities of such series from
all other series of Securities); |
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(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
3.4, 3.5, 3.6, 9.6, 11.7 or 13.6); |
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(3) the Person to whom any interest on any Registered Security of the series shall be payable, if other
than 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, 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 3.4; |
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(4) the date or dates, or the method by which such date or dates will be determined, on which the principal
and premium, if any, of the Securities of the series shall be payable or the method of that determination
or the right to defer any interest payments; |
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(5) the rate or rates (which may be fixed or variable) at which the Securities of the series shall bear
interest, if any, or the method by which such rate or rates shall be determined, the date or dates
from which such interest shall accrue or the method by which such date or dates shall be determined,
the Interest Payment Dates on which such interest will be payable and the Regular Record Date, if
any, for the interest payable on any Registered Security on any Interest Payment Date, or the method
by which such date shall be determined, and the basis upon which interest shall be calculated if
other than that of a 360-day year of twelve 30-day months; |
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(6) the place or places, if any, other than or in addition to the Borough of Manhattan, New York City,
where the principal of (and premium, if any), interest, if any, on, and Additional Amounts, if any,
payable in respect of, Securities of the series shall be payable, any Registered Securities of the
series may be surrendered for registration of transfer, exchange or conversion and notices or demands
to or upon the Company in respect of the Securities of the series and this Indenture may be served; |
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(7) the period or periods within which, the date or dates on which, the price or prices at which, the
currency or currencies, currency unit or units or composite currency or currencies in which, and
other terms and conditions upon which Securities of the series may be redeemed, in whole or in part,
at the option of the Company, if the Company is to have the option; |
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(8) 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, currency unit or units or composite currency or currencies in which, and other terms
and conditions upon which |
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Securities of the series shall be redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation; |
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(9) the terms, if any, upon which the Securities of the series may be convertible into or exchanged for
Securities of another series, Common Stock or Preferred Stock, as the case may be, and the terms
and conditions upon which such conversion shall be effected (including the initial conversion or
exchange price or rate, the conversion or exchange period, any adjustment of the applicable conversion
price and any requirements relative to the reservation of such shares for purposes of conversion
or exchange); |
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(10) if other than denominations of $1,000 and any integral multiple thereof, the denominations in which
any Registered Securities of the series shall be issuable and, if other than the denomination of
$5,000, the denomination or denominations in which any Bearer Securities of the series shall be issuable; |
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(11) if other than Dollars, the Foreign Currency or Currencies in which payment of the principal of (and
premium, if any) or interest or Additional Amounts, if any, on the Securities of the series shall
be payable or in which the Securities of the series shall be denominated; |
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(12) whether the amount of payments of principal of (and 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, currency units, composite
currencies, commodities, equity indices or other indices), and the manner in which such amounts shall
be determined; |
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(13) if the principal amount payable at the stated maturity of the Securities of the series will not be
determinable as of any one or more dates before the Stated Maturity, the amount that will be deemed
to be the principal amount as of any date for any purpose, including the principal amount thereof
which will be due and payable upon any Maturity other than the Stated Maturity or which will be deemed
to be outstanding as of any date (or, in any such case, the manner in which the deemed principal
amount is to be determined), and if necessary, the manner of determining the equivalent thereof in
United States currency; |
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(14) whether the principal of (and premium, if any) or interest or Additional Amounts, 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
or currencies, currency unit or units or composite currency or currencies other than that in which
such Securities are denominated or stated to be payable, the period or periods within which, and
the terms and conditions upon which, such election may be made, and the time and manner of, and identity
of the exchange rate agent with responsibility for, determining the exchange rate between the currency
or currencies, currency unit or units or composite currency or currencies in which such Securities
are denominated or stated to be payable and the |
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currency or currencies, currency unit or units or composite currency or currencies in which such Securities
are to be so payable; |
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(15) 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 5.2 or, if applicable, the portion of the principal amount of Securities of the series that
is convertible in accordance with the provisions of this Indenture, or the method by which such portion
shall be determined; |
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(16) the applicability of, and any addition to or change in, the covenants and definitions then set forth
in the Indenture or in the terms then set forth in such Indenture relating to permitted consolidations,
mergers or sales of assets; |
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(17) the applicability, if any, of Section 14.2 and/or Section 14.3 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
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(18) (a) whether Securities of the series are to be issuable as Registered Securities, Bearer Securities
(with or without coupons) or both, any restrictions applicable to the offer, sale or delivery of
Bearer Securities and the terms upon which Bearer Securities of the series may be exchanged for Registered
Securities of the series and vice versa (if permitted by applicable laws and regulations), whether
any Securities of the series are to be issuable initially in temporary global form and whether any
Securities of the series are to be issuable in permanent global form with or without coupons and,
if so, whether beneficial owners of interests in any such permanent global Security may exchange
such interests for Securities of such series 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 3.5, and, if Registered Securities of the series are to be issuable as a global Security,
the identity of the depositary for such series; |
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(18) (b) 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; |
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(18) (c) 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; |
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(19) the appointment of any trustee, any authenticating or paying agents, transfer agent or registrars; |
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(20) the terms, if any, of any guarantee of the payment of principal, premium and interest with respect
to the Securities of the series and any corresponding changes to the provisions of the applicable
indenture as then in effect; |
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(21) the terms, if any, of the transfer, mortgage, pledge or assignment as security for the Securities
of the series of any properties, assets, moneys, proceeds, securities or other collateral, including
whether certain provisions of the TIA are applicable and any corresponding changes to provisions
of the applicable indenture as then in effect and including provisions addressing priority, perfection
and escrow arrangements related to the security interest; |
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(22) any deletions from, modifications of or additions to the Events of Default or covenants of the Company
with respect to Securities of the series, whether or not such Events of Default or covenants are
consistent with the Events of Default or covenants set forth herein, and any change in the right
of the Trustee or the Holders of the Securities to declare the principal premium and interest with
respect to debt securities due and payable; |
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(23) provisions, if any, granting special rights to the Holders of Securities of the series upon the occurrence
of such events as may be specified; |
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(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; |
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(25) whether and under what circumstances the Company will pay Additional Amounts as contemplated by Section
10.8 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); and |
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(26) any other terms of the series. |
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
3.3) and set forth in such Officers’ Certificate or in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and, unless otherwise provided,
a series may be reopened, without the consent of the Holders, for issuances of additional Securities
of such series.
If any of the terms of the Securities of any series are established by action taken pursuant to one
or more Board Resolutions, a copy of an appropriate record of such action(s) shall be certified by
the Secretary or an Assistant Secretary of the Company and delivered to the Trustee at or prior to
the delivery of the Officers’ Certificate setting forth the terms of the Securities of such
series.
Section 3.2 Denominations. The Securities of each series shall be issuable in such denominations as shall be specified
as contemplated by Section 3.1. 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
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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 3.3 Execution, Authentication, Delivery and Dating. The Securities and any coupons appertaining thereto shall be executed on behalf of the Company
by the Chief Executive Officer, Chief Financial Officer, the President or a Vice President of the
Company and attested by its Secretary or one of its Assistant Secretaries. The signature of any of
these individuals on the Securities and coupons may be manual or facsimile signatures of the present
or any future such authorized officer and may be imprinted or otherwise reproduced on the Securities.
Securities or coupons bearing the manual or facsimile signatures of individuals who were at any time
the proper officers of the Company shall bind the Company, notwithstanding that such individuals
or any of them have ceased to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities or coupons.
At any time and from time to time after the execution and delivery of this Indenture, the Company may
deliver Securities of any series, together with any coupon appertaining thereto, executed by the
Company to the Trustee for authentication, together with a Company Order for the authentication and
delivery of such Securities, and the Trustee in accordance with the Company Order shall authenticate
and deliver such Securities; provided, however, that, in connection with its original issuance, no
Bearer Security shall be mailed or otherwise delivered to any location in the United States; and
provided further that, unless otherwise specified with respect to any series of Securities pursuant
to Section 3.1, 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 to Euroclear
or CEDEL, as the case may be, 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 3.1,
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
3.4, the notation of a beneficial owner’s interest therein upon original issuance of such Security
or upon exchange of a portion of a temporary global Security shall be deemed to be delivery in connection
with its original issuance of such beneficial owner’s interest in such permanent global Security.
Except as permitted by Section 3.6, 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 or formula, maturity date, date of
issuance and date from which interest shall accrue. In authenticating such
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Securities, and accepting the additional responsibilities under this Indenture in relation to such
Securities, the Trustee shall be entitled to receive, and (subject to TIA Section 315(a) through
315(d)) shall be fully protected in relying upon,
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(i) an Opinion of Counsel stating that: |
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(a) the form or forms of such Securities and any coupons have been established in conformity with the
provisions of this Indenture; |
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(b) the terms of such Securities and any coupons have been established in conformity with the provisions
of this Indenture; and |
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(c) 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, moratorium, reorganization and other similar
laws of general applicability relating to or affecting the enforcement of creditors’ rights
generally and to general equitable principles; and |
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(ii) an Officers’ Certificate stating that all conditions precedent provided for in this Indenture
relating to the issuance of the Securities have been complied with and that, to the best of the knowledge
of the signers of such certificate, no Event of Default with respect to any of the Securities shall
have occurred and be continuing. |
If such form or terms have been so established, the Trustee shall not be required to authenticate such
Securities if the issue of such Securities pursuant to this Indenture will affect the Trustee’s
own rights, duties, obligations or immunities under the Securities and this Indenture or otherwise
in a manner which is not reasonably acceptable to the Trustee.
Notwithstanding the provisions of Section 3.1 and of the preceding paragraph, 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 3.1 or a Company Order, or an Opinion of Counsel
or an Officers’ Certificate otherwise required pursuant to the preceding paragraph at the time
of issuance of each Security of such series; provided that 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.
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 3.1.
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 by manual signature of an authorized signatory, and such
24
certificate upon any Security shall be conclusive evidence, and the only evidence, that such Security
has been duly authenticated and delivered hereunder and is entitled to the benefits of this Indenture.
Notwithstanding the foregoing, if any Security shall have been authenticated and delivered hereunder
but never issued and sold by the Company, and the Company shall deliver such Security to the Trustee
for cancellation as provided in Section 3.9 together with a written statement (which need not comply
with Section 1.2 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 3.4 Temporary Securities. (a) Pending the preparation of definitive Securities of any series, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver, temporary Securities
which are printed, lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of which they are issued,
in registered form, or, if authorized, in bearer form with one or more coupons or without coupons,
and with such appropriate insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as conclusively evidenced by their execution of such Securities.
In the case of Securities of any series, such temporary Securities may be in global form.
Except in the case of temporary Securities in global form (which shall be exchanged in accordance with
Section 3.4(b) or as otherwise provided in or pursuant to a Board Resolution) if temporary Securities
of any series are issued, the Company will cause definitive Securities of that series to be prepared
without unreasonable delay. After the preparation of definitive Securities of such series, the temporary
Securities of such series shall be exchangeable for definitive Securities of such series upon surrender
of the temporary Securities of such series at the office or agency of the Company in a Place of Payment
for that series, without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities of any series (accompanied by any non-matured coupons appertaining thereto)
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a like
principal amount of definitive Securities of the same series of authorized denominations; provided,
however, that no definitive Bearer Security shall be delivered in exchange for a temporary Registered
Security; and provided further that a definitive Bearer Security shall be delivered in exchange for
a temporary Bearer Security only in compliance with the conditions set forth in Section 3.3. Until
so exchanged, the temporary Securities of any series shall be entitled to in all respects the same
benefits under this Indenture as definitive Securities of such series.
(b) Unless otherwise provided in or pursuant to a Board Resolution, this Section 3.4(b) shall govern the
exchange of temporary Securities issued in global form other than through the facilities of The Depository
Trust Company (“DTC”). If any such temporary Security is issued in global form, then 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 CEDEL, for credit to the respective accounts of the beneficial owners of such Securities (or
to such other accounts as they may direct).
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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, 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 3.1, and, if any combination thereof is so specified, as requested by the beneficial owner
thereof; provided, however, that, unless otherwise specified in such temporary global Security, upon
such presentation by the Common Depositary, such temporary global Security is accompanied by a certificate
dated the Exchange Date or a subsequent date and signed by Euroclear as to the portion of such temporary
global Security held for its account then to be exchanged and a certificate dated the Exchange Date
or a subsequent date and signed by CEDEL 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 3.1; 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 3.3.
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 CEDEL, as the case may be, to request such exchange on his behalf and delivers to Euroclear
or CEDEL, 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 3.1), dated no earlier than 15 days
prior to the Exchange Date, copies of which certificate shall be available from the offices of Euroclear
and CEDEL, the Trustee, any Authenticating Agent appointed for such series of Securities and each
Paying Agent. Unless otherwise specified in such temporary global Security, any such exchange shall
be made free of charge to the beneficial owners of such temporary global Security, except that a
Person receiving definitive Securities must bear the cost of insurance, postage, transportation and
the like unless such Person takes delivery of such definitive Securities in person at the offices
of Euroclear or CEDEL. Definitive Securities in bearer form to be delivered in exchange for any portion
of a temporary global Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary Securities of any series shall in all
respects be entitled to the same benefits under this Indenture as definitive Securities of the same
series and of like tenor authenticated and delivered hereunder, except that, unless otherwise specified
as contemplated by Section 3.1, 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 CEDEL on such Interest Payment
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Date upon delivery by Euroclear and CEDEL 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 3.1), for credit without further interest on or after such Interest Payment Date to the
respective accounts of Persons who are the beneficial owners of such temporary global Security on
such Interest Payment Date and who have each delivered to Euroclear or CEDEL, as the case may be,
a certificate dated no earlier than 15 days prior to the Interest Payment Date occurring prior to
such Exchange Date in the form set forth as Exhibit A-1 to this Indenture (or in such other forms
as may be established pursuant to Section 3.1). Notwithstanding anything to the contrary herein contained,
the certifications made pursuant to this paragraph shall satisfy the certification requirements of
the preceding two paragraphs of this Section 3.4(b) and of the third paragraph of Section 3.3 of
this Indenture and the interests of the Persons who are the beneficial owners of the temporary global
Security with respect to which such certification was made will be exchanged for definitive Securities
of the same series and of like tenor on the Exchange Date or the date of certification if such date
occurs after the Exchange Date, without further act or deed by such beneficial owners. Except as
otherwise provided in this paragraph, no payments of principal or interest 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 CEDEL 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 3.5 Registration, Registration of Transfer and Exchange. The Company shall cause to be kept at the Corporate Trust Office of the Trustee or in any office
or agency of the Company in a Place of Payment a register for each series of Securities (the registers
maintained in such office or in any such office or agency of the Company in a Place of Payment being
herein sometimes referred to collectively as the “Security Register”) in which, subject
to such reasonable regulations as it may prescribe, the Company shall provide for the registration
of Registered Securities and of transfers of Registered Securities. The Security Register shall be
in written form or any other form capable of being converted into written form within a reasonable
time. The Trustee, at its Corporate Trust Office, is hereby 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.
Subject to the provisions of this Section 3.5, upon surrender for registration of transfer of any Registered
Security of any series at any office or agency of the Company in a Place of Payment for that series,
the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Registered Securities of the same series, of any authorized
denominations and of a like aggregate principal amount, bearing a number not contemporaneously outstanding,
and containing identical terms and provisions.
Subject to the provisions of this Section 3.5, at the option of the Holder, Registered Securities of
any series may be exchanged for other Registered Securities of the same series, of any authorized
denomination or denominations and of a like aggregate principal amount, containing identical terms
and provisions, upon surrender of the Registered Securities to be exchanged at any such office or
agency. Whenever any such Registered Securities are so
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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 3.1, Bearer Securities
may not be issued in exchange for Registered Securities.
If (but only if) permitted by the applicable Board Resolution and (subject to Section 3.3) set forth
in the applicable Officers’ Certificate, or in any indenture supplemental hereto, delivered
as contemplated by Section 3.1, at the option of the Holder, Bearer Securities of any series may
be exchanged for Registered Securities of the same series of any authorized denominations and of
a like aggregate principal amount and tenor, upon surrender of the Bearer Securities to be exchanged
at any such office or agency, with all unmatured coupons and all matured coupons in default thereto
appertaining. If the Holder of a Bearer Security is unable to produce any such unmatured coupon or
coupons or matured coupon or coupons in default, any such permitted exchange may be effected if the
Bearer Securities are accompanied by payment in funds acceptable to the Company in an amount equal
to the face amount of such missing coupon or coupons, or the surrender of such missing coupon or
coupons may be waived by the Company and the Trustee if there is furnished to them such security
or indemnity as they may require to save each of them and any Paying Agent harmless. If thereafter
the Holder of such Security shall surrender to any Paying Agent any such missing coupon in respect
of which such a payment shall have been made, such Holder shall be entitled to receive the amount
of such payment; provided, however, that, except as otherwise provided in Section 10.2, interest
represented by coupons shall be payable only upon presentation and surrender of those coupons at
an office or agency located outside the United States. Notwithstanding the foregoing, in case a Bearer
Security of any series is surrendered at any such office or agency in a permitted exchange for a
Registered Security of the same series and like tenor after the close of business at such office
or agency on (i) any Regular Record Date and before the opening of business at such office or agency
on the relevant Interest Payment Date, or (ii) any Special Record Date and before the opening of
business at such office or agency on the related proposed date for payment of Defaulted Interest,
such Bearer Security shall be surrendered without the coupon relating to such Interest Payment Date
or proposed date for payment, as the case may be, and interest or Defaulted Interest, as the case
may be, will not be payable on such Interest Payment Date or proposed date for payment, as the case
may be, in respect of the Registered Security issued in exchange for such Bearer Security, but will
be payable only to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Whenever any Securities are so surrendered for exchange, the Company shall execute, and the Trustee
shall authenticate and deliver, the Securities which the Holder making the exchange is entitled to receive.
Notwithstanding the foregoing, except as otherwise specified as contemplated by Section 3.1, any permanent
global Security shall be exchangeable only as provided in this paragraph. If the depositary for any
permanent global Security is DTC, then, unless the terms of such global Security expressly permit
such global Security to be exchanged in whole or in part for definitive Securities, a global Security
may be transferred, in whole but not in part, only to a nominee of DTC, or by a nominee of DTC to
DTC, or to a successor to DTC for such global Security selected or approved by the Company or to
a nominee of such successor to DTC. If at any time DTC notifies the Company that it is unwilling
or unable to continue as depositary for the applicable global Security or Securities or if at any
time DTC ceases to be a clearing agency registered under the Securities Exchange Act of 1934 if so
required by applicable law or
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regulation, the Company shall appoint a successor depositary with respect to such global Security or
Securities. If (x) a successor depositary for such global Security or Securities is not appointed
by the Company within 90 days after the Company receives such notice or becomes aware of such unwillingness,
inability or ineligibility, (y) an Event of Default has occurred and is continuing and the beneficial
owners representing a majority in principal amount of the applicable series of Securities represented
by such global Security or Securities advise DTC to cease acting as depositary for such global Security
or Securities or (z) the Company, in its sole discretion, determines at any time that all Outstanding
Securities (but not less than all) of any series issued or issuable in the form of one or more global
Securities shall no longer be represented by such global Security or Securities, then the Company
shall execute, and the Trustee shall authenticate and deliver, definitive Securities of like series,
rank, tenor and terms in definitive form in an aggregate principal amount equal to the principal
amount of such global Security or Securities. If any beneficial owner of an interest in a permanent
global Security is otherwise 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 3.1 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 execute, and the Trustee shall
authenticate and deliver, definitive Securities in aggregate principal amount equal to the principal
amount of such beneficial owner’s interest in such permanent global Security. On or after the
earliest date on which such interests may be so exchanged, such permanent global Security shall be
surrendered for exchange by DTC 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; provided, however,
that no such exchanges may occur during a period beginning at the opening of business 15 days before
any selection of Securities to be redeemed and ending on the relevant Redemption Date if the Security
for which exchange is requested may be among those selected for redemption; and provided further
that no Bearer Security delivered in exchange for a portion of a permanent global Security shall
be mailed or otherwise delivered to any location in the United States. If a Registered Security is
issued in exchange for any portion of a permanent global Security after the close of business at
the office or agency where such exchange occurs on (i) any Regular Record Date and before the opening
of business at such office or agency on the relevant Interest Payment Date or (ii) any Special Record
Date and the opening of business at such office or agency on the related proposed date for payment
of Defaulted Interest, interest or Defaulted Interest, as the case may be, will not be payable on
such Interest Payment Date or proposed date for payment, as the case may be, in respect of such Registered
Security, but will be payable on such Interest Payment Date or proposed date for payment, as the
case may be, only to the Person to whom interest in respect of such portion of such permanent global
Security is payable in accordance with the provisions of this Indenture.
All Securities issued upon any registration of transfer or exchange of Securities shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or exchange.
Every Registered Security presented or surrendered for registration of transfer or for exchange or
redemption 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
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Company and the Security Registrar, duly executed by the Holder thereof or his attorney duly authorized
in writing.
No service charge shall be made for any registration of transfer or exchange of Securities, but the
Company may require payment of a sum sufficient to cover any tax or other governmental charge that
may be imposed in connection with any registration of transfer or exchange of Securities, other than
exchanges pursuant to Section 3.4, 9.6, 11.7 or 13.6 not involving any transfer.
The Company or the Trustee, as applicable, shall not be required (i) to issue, register the transfer
of or exchange any Security if such Security may be among those selected for redemption during a
period beginning at the opening of business 15 days before selection of the Securities to be redeemed
under Section 11.3 and ending at the close of business on (A) if such Securities are issuable only
as Registered Securities, the day of the mailing of the relevant notice of redemption and (B) if
such Securities are issuable as Bearer Securities, the day of the first publication of the relevant
notice of redemption or, if such Securities are also issuable as Registered Securities and there
is no publication, the mailing of the relevant notice of redemption, or (ii) to register the transfer
of or exchange any Registered Security so selected for redemption in whole or in part, except, in
the case of any Registered Security to be redeemed in part, the portion thereof not to be redeemed,
or (iii) to exchange any Bearer Security so selected for redemption except that such a Bearer Security
may be exchanged for a Registered Security of that series and like tenor, provided that such Registered
Security shall be simultaneously surrendered for redemption or (iv) to issue, register the transfer
of or exchange any Security which has been surrendered for repayment at the option of the Holder,
except the portion, if any, of such Security not to be so repaid.
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities. If any mutilated Security or a Security with a mutilated coupon appertaining to it is surrendered
to the Trustee or the Company, together with, in proper cases, such security or indemnity as may
be required by the Company or the Trustee to save each of them or any agent of either of them harmless,
the Company shall execute and the Trustee shall authenticate and deliver in exchange therefor a new
Security of the same series and principal amount, containing identical terms and provisions and bearing
a number not contemporaneously outstanding, with coupons corresponding to the coupons, if any, appertaining
to the surrendered Security.
If there shall be delivered to the Company and to the Trustee (i) evidence to their satisfaction of
the destruction, loss or theft of any Security or coupon and (ii) such security or indemnity as may
be required by them to save each of them and any agent of either of them harmless, then, in the absence
of notice to the Company or the Trustee that such Security or coupon has been acquired by a bona
fide purchaser, the Company shall execute and upon its request the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security or in exchange for the Security to
which a destroyed, lost or stolen coupon appertains (with all appurtenant coupons not destroyed,
lost or stolen), a new Security of the same series and principal amount, containing identical terms
and provisions and bearing a number not contemporaneously outstanding, with coupons corresponding
to the coupons, if any, appertaining to such destroyed, lost or stolen Security or to the Security
to which such destroyed, lost or stolen coupon appertains.
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Notwithstanding the provisions of the previous two paragraphs, in case any such mutilated, destroyed,
lost or stolen Security or coupon has become or is about to become due and payable, the Company in
its discretion may, instead of issuing a new Security, with coupons corresponding to the coupons,
if any, appertaining to such destroyed, lost or stolen Security or to the Security to which such
destroyed, lost or stolen coupon appertains, pay such Security or coupon; provided, however, that
payment of principal of (and premium, if any), any interest on and any Additional Amounts with respect
to, Bearer Securities shall, except as otherwise provided in Section 10.2, be payable only at an
office or agency located outside the United States and, unless otherwise specified as contemplated
by Section 3.1, any interest on Bearer Securities shall be payable only upon presentation and surrender
of the coupons appertaining thereto.
Upon the issuance of any new Security under this Section, the Company may require the payment of a
sum sufficient to cover any tax or other governmental charge that may be imposed in relation thereto
and any other expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security of any series with its coupons, if any, issued pursuant to this Section in lieu
of any destroyed, lost or stolen Security, or in exchange for a Security to which a destroyed, lost
or stolen coupon appertains, shall constitute an original additional contractual obligation of the
Company, whether or not the destroyed, lost or stolen Security and its coupons, if any, or the destroyed,
lost or stolen coupon shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other Securities of that
series and their coupons, if any, duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the extent lawful) all other rights
and remedies with respect to the replacement or payment of mutilated, destroyed, lost or stolen Securities
or coupons.
Section 3.7 Payment of Interest; Interest Rights Preserved. Except as otherwise specified with respect to a series of Securities in accordance with the
provisions of Section 3.1, interest 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 10.2; provided, however, that each installment of interest on any Registered
Security may at the Company’s option be paid by (i) mailing a check for such interest, payable
to or upon the written order of the Person entitled thereto pursuant to Section 3.8, to the address
of such Person as it appears on the Security Register or (ii) transfer to an account maintained by
the payee located inside the United States.
Unless otherwise provided as contemplated by Section 3.1 with respect to the Securities of any series,
payment of interest may be made, in the case of a Bearer Security, by transfer to an account maintained
by the payee with a bank located outside the United States.
Unless otherwise provided as contemplated by Section 3.1, every permanent global Security will provide
that interest, if any, payable on any Interest Payment Date will be paid to DTC, Euroclear and/or
CEDEL, as the case may be, with respect to that portion of such
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permanent global Security held for its account by Cede & Co. or the Common Depositary, as the case
may be, for the purpose of permitting such party to credit the interest received by it in respect
of such permanent global Security to the accounts of the beneficial owners thereof.
In case a Bearer Security of any series is surrendered in exchange for a Registered Security of such
series after the close of business (at an office or agency in a Place of Payment for such series)
on any Regular Record Date and before the opening of business (at such office or agency) on the next
succeeding Interest Payment Date, such Bearer Security shall be surrendered without the coupon relating
to such Interest Payment Date and interest will not be payable on such Interest Payment Date in respect
of the Registered Security issued in exchange for such Bearer Security, but will be payable only
to the Holder of such coupon when due in accordance with the provisions of this Indenture.
Except as otherwise specified with respect to a series of Securities in accordance with the provisions
of Section 3.1, any interest on any Registered Security of any series that is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein called “Defaulted
Interest”) shall forthwith cease to be payable to the registered Holder thereof on the relevant
Regular Record Date by virtue of having been such Holder, and such Defaulted Interest may be paid
by the Company, at its election in each case, as provided in clause (1) or (2) below:
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(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 30 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 or currencies, currency unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 3.1 for the Securities
of such series) 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. The Trustee shall promptly notify the Company of such Special Record Date and, in the name
and at the expense of the Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid, to each Holder of
Registered Securities of such series at his address as it appears in the Security Register not less
than 10 days prior to such Special Record Date. The Trustee may, in its discretion, in the name and
at the expense of the Company, cause a similar notice to be published at least once in an Authorized
Newspaper in each place of payment, but such publications shall not be a condition precedent to the
establishment of such Special Record Date. Notice of the proposed |
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payment of such Defaulted Interest
and the Special Record Date therefor having been mailed as aforesaid, such Defaulted Interest shall
be paid to the Persons in whose names the Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on such Special Record Date and shall
no longer be payable pursuant to the following clause (2). In case a Bearer Security of any series
is surrendered at the office or agency in a Place of Payment for such series in exchange for a Registered
Security of such series after the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on the related proposed date for
payment of Defaulted Interest, such Bearer Security shall be surrendered without the 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. |
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(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. |
Subject to the foregoing provisions of this Section and Section 3.5, 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 3.8 Persons Deemed Owners. Prior to due presentment of a Registered Security for registration of transfer, the Company,
the Trustee and any agent of the Company or the Trustee may treat the Person in whose name such Registered
Security is registered as the owner of such Security for the purpose of receiving payment of principal
of (and premium, if any), and (subject to Sections 3.5 and 3.7) interest on, such Registered Security
and for all other purposes whatsoever, whether or not such Registered Security be overdue, and neither
the Company, the Trustee nor any agent of the Company or the Trustee shall be affected by notice
to the contrary.
Title to any Bearer Security and any coupons appertaining thereto shall pass by delivery. The Company,
the Trustee and any agent of the Company or the Trustee may treat the Holder of any Bearer Security
and the Holder 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 neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Security Registrar will have any responsibility
or liability for any aspect of the records relating to or payments
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made on account of beneficial ownership interests of a Security in global form or for maintaining,
supervising or reviewing any records relating to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security, nothing herein shall prevent the
Company, the Trustee, or any agent of the Company or the Trustee, from giving effect to any written
certification, proxy or other authorization furnished by any depositary, as a Holder, with respect
to such global Security or impair, as between such depositary and owners of beneficial interests
in such global Security, the operation of customary practices governing the exercise of the rights
of such depositary (or its nominee) as Holder of such global Security.
Section 3.9 Cancellation. All Securities and coupons surrendered for payment, redemption, repayment at the option of
the Holder, registration of transfer or exchange or for credit against any sinking fund payment shall,
if surrendered to any Person other than the Trustee, be delivered to the Trustee, and any such Securities
and coupons and Securities and coupons surrendered directly to the Trustee for any such purpose shall
be promptly canceled by it; provided, however, where the Place of Payment is located outside of the
United States, the Paying Agent at such Place of Payment may cancel the Securities surrendered to
it for such purposes prior to delivering the Securities to the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and 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
canceled 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 canceled as provided in this Section,
except as expressly permitted by this Indenture. Canceled Securities and coupons held by the Trustee
shall be destroyed by the Trustee and the Trustee shall deliver a certificate of such destruction
to the Company, unless by a Company Order the Company directs their return to it.
Section 3.10 Computation of Interest. Except as otherwise specified as contemplated by Section 3.1 with respect to Securities of
any series, interest on the Securities of each series shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
ARTICLE 4
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture. This Indenture shall upon Company Request cease to be of further effect with respect to any
series of Securities specified in such Company Request (except as to any surviving rights of conversion,
registration of transfer or exchange of Securities of such series herein expressly provided for and
any right to receive Additional Amounts), 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:
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(A) all Securities of such series theretofore authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities surrendered for exchange for Registered
Securities and maturing after such exchange, whose surrender is not required or has been waived as
provided in Section 3.5, (ii) Securities and coupons of such series which have been destroyed, lost
or stolen and which have been replaced or paid as provided in Section 3.6, (iii) coupons appertaining
to Securities called for redemption and maturing after the relevant Redemption Date, whose surrender
has been waived as provided in Section 11.6, and (iv) Securities and coupons of such series for whose
payment money has theretofore been deposited in trust or segregated and held in trust by the Company
and thereafter repaid to the Company or discharged from such trust, as provided in Section 10.3)
have been delivered to the Trustee for cancellation; or |
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(B) all Securities of such series and, in the case of (i) or (ii) below, any coupons appertaining thereto
not theretofore delivered to the Trustee for cancellation |
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(i) have become due and payable,
or |
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(ii) will become due and payable at
their Stated Maturity within one year, or |
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(iii) if redeemable at the option of the
Company, are to be called for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has irrevocably deposited or caused to be
deposited with the Trustee as trust funds in trust for the purpose (A) an amount of money in the
currency or currencies, currency unit or units or composite currency or currencies in which the Securities
of such series are payable, (B) Government Obligations that 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, money in an amount, or (C) a combination thereof, sufficient
in each case to pay and discharge the entire indebtedness on such Securities and such coupons not
theretofore delivered to the Trustee for cancellation, for principal (and premium, if any) and interest,
and any Additional Amounts with respect thereto, 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; |
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(2) the Company has paid or caused to be paid all other sums payable hereunder by the Company; and |
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(3) the Company has delivered to the Trustee an Officers’ Certificate and an Opinion of Counsel,
each stating that all conditions precedent herein provided for relating to the satisfaction and discharge
of this Indenture as to such series have been complied with. |
Notwithstanding the satisfaction and discharge of this Indenture, the obligations of the Company to
the Trustee and any predecessor Trustee under Section 6.7, the obligations of the Company to any
Authenticating Agent under Section 6.12 and, if money shall have been deposited with and held by
the Trustee pursuant to subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 4.2 and the last paragraph of Section 10.3 shall survive.
Section 4.2 Application of Trust Funds. Subject to the provisions of the last paragraph of Section 10.3, all amounts deposited with
the Trustee pursuant to Section 4.1 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 any interest
and Additional Amounts for whose payment such amounts have been deposited with or received by the
Trustee, but such amounts need not be segregated from other funds except to the extent required by
law. All moneys deposited with the Trustee pursuant to Section 4.01 (and held by it or any Paying
Agent) for the payment of Securities subsequently converted shall be returned to the Company upon
Company Request.
ARTICLE 5
REMEDIES
Section 5.1 Events of Default. “Event of Default,” wherever used herein with respect to any particular series of
Securities, means any one of the following events (whatever the reason for such Event of Default
and whether or not it shall be occasioned by the provisions of Article 15 or be voluntary or involuntary
or be effected by operation of law or pursuant to any judgment, decree or order of any court or any
order, rule or regulation of any administrative or governmental body)
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(1) default in the payment of any interest upon or any Additional Amounts payable in respect of any Security
of that series or of any coupon appertaining thereto, when such interest, Additional Amounts or coupon
becomes due and payable, and continuance of such default for a period of 30 days (whether or not
such payment is prohibited by the provisions of Article 15); or |
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(2) default in the payment of the principal of (or premium, if any, on) any Security of that series when
it becomes due and payable at its Maturity (whether or not such payment is prohibited by the provisions
of Article 15); or |
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(3) default in the deposit of any sinking fund payment, when and as due by the terms of any Security of
that series; or |
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(4) default in the performance, or breach, of any covenant or warranty of the Company in this Indenture
with respect to any Security of that series (other than a covenant or warranty 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 90 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 |
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(5) the Company or any Significant Subsidiary pursuant to or within the meaning of any Bankruptcy Law: |
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(A) commences a voluntary case, |
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(B) consents to the entry of an order for relief against it in an involuntary case, |
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(C) consents to the appointment of a Custodian of it or for all or substantially all of its property,
or |
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(D) makes a general assignment for the benefit of its creditors; or |
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(6) a court of competent jurisdiction enters an order or decree under any Bankruptcy Law that: |
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(A) is for relief against the Company or any Significant Subsidiary in an involuntary case, |
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(B) appoints a Custodian of the Company or any Significant Subsidiary or for all or substantially all
of the property of any of them, or |
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(C) orders the winding up or liquidation of the Company or any Significant Subsidiary, |
and the order or decree remains unstayed and in effect for 60 days; or
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(7) any other Event of Default provided with respect to Securities of that series. |
As used in this Section 5.1, the term “Bankruptcy Law” means title 11, U.S. Code or any similar
Federal or State law for the relief of debtors and the term “Custodian” means any receiver,
trustee, assignee, liquidator or other similar official under any Bankruptcy Law.
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Section 5.2 Acceleration of Maturity; Rescission and Annulment. If an Event of Default with respect to Securities of any series at the time Outstanding occurs
and is continuing, then and in every such case the Trustee or the Holders of not less than 25% in
principal amount of the Outstanding Securities of that series may declare the principal (or, if any
Securities are Original Issue Discount Securities or Indexed Securities, such portion of the principal
as may be specified in the terms thereof) of all the Securities of that series to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given by the Holders),
and upon any such declaration such principal or specified portion thereof shall become immediately
due and payable. If an Event of Default specified in Section 5.1(5) or 5.1(6) occurs, the principal
of, and accrued interest (including Additional Amounts) on, all the Securities shall automatically,
and without any declaration or other action on the part of the Trustee or any Holder, become immediately
due and payable.
At any time after such a declaration of acceleration with respect to Securities of any series has been
made and before a judgment or decree for payment of the money due has been obtained by the Trustee
as hereinafter in this Article provided, the Holders of 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:
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(1) the Company has paid or deposited with the Trustee a sum sufficient to pay in the currency or currency
unit or composite currency in which the Securities of such series are payable (except as otherwise
specified pursuant to Section 3.1 for the Securities of such series): |
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(A) all overdue installments of interest on and any Additional Amounts payable in respect of all Outstanding
Securities of that series and any related coupons, |
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(B) the principal of (and premium, if any, on) any Outstanding Securities of that series which have become
due otherwise than by such declaration of acceleration and interest thereon at the rate or rates
borne by or provided for in such Securities, |
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(C) to the extent that payment of such interest is lawful, interest upon overdue installments of interest
and any Additional Amounts at the rate or rates borne by or provided for in such Securities, and |
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(D) all sums paid or advanced by the Trustee hereunder and the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel; and |
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(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 5.13. |
No such rescission shall affect any subsequent default or impair any right consequent thereon.
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Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee. The Company covenants that if:
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(1) default is made in the payment of any installment of interest or Additional Amounts, if any, on any
Security of any series and any related coupon when such interest or Additional Amount becomes due
and payable and such default continues for a period of 30 days, or |
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(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 such 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 and Additional Amounts, 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 or Additional Amounts, if
any, at the rate or rates borne by or provided for in such Securities, and, in addition thereto,
such further amount as shall be sufficient to cover the costs and expenses of collection, including
the reasonable compensation, expenses, disbursements and advances of the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the Trustee, in its own name and
as trustee of an express trust, may institute a judicial proceeding for the collection of the sums
so due and unpaid, and may prosecute such proceeding to judgment or final decree, and may enforce
the same against the Company or any other obligor upon such 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.
If an Event of Default with respect to Securities of any series occurs and is continuing, the Trustee
may in its discretion proceed to protect and enforce its rights and the rights of the Holders of
Securities of such series and any related coupons by such appropriate judicial proceedings as the
Trustee shall deem most effectual to protect and enforce any such rights, whether for the specific
enforcement of any covenant or agreement in this Indenture or in aid of the exercise of any power
granted herein, or to enforce any other proper remedy.
Section 5.4 Trustee May File Proofs of Claim. In case of the pendency of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or 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 overdue principal, premium,
if any, or interest) shall be entitled and empowered, by intervention in such proceeding or otherwise:
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(i) to file and prove a claim
for the whole amount, or such lesser amount as may be provided for in the Securities of such series,
of principal (and |
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premium, if any) and interest and Additional Amounts, 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 |
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(ii) to collect and receive any moneys
or other property payable or deliverable on any such claims and to distribute the same; |
and any custodian, receiver, assignee, trustee, liquidator, sequestrator (or other similar official)
in any such judicial proceeding is hereby directed by each Holder of Securities of such series and
coupons to make such payments to the Trustee, and in the event that the Trustee shall request the
making of such payments directly to the Holders, to pay to the Trustee any amount due to it for the
reasonable compensation, expenses, disbursements and advances of the Trustee and any predecessor
Trustee, their agents and counsel, and any other amounts due the Trustee or any predecessor Trustee
under Section 6.7.
Nothing herein contained shall be deemed to authorize the Trustee to authorize or consent to or accept
or adopt on behalf of any Holder of a Security or coupon any plan of reorganization, arrangement,
adjustment or composition affecting the Securities or coupons or the rights of any Holder thereof,
or to authorize the Trustee to vote in respect of the claim of any Holder of a Security or coupon
in any such proceeding; provided; however, that the Trustee may, on behalf of the Holders, vote for
the election of a trustee in bankruptcy or similar official and be a member of a creditors’
or other similar committee.
Section 5.5 Trustee May Enforce Claims Without Possession of Securities or Coupons. All rights of action and claims under this Indenture or any of the Securities or coupons may
be prosecuted and enforced by the Trustee without the possession of any of the Securities or coupons
or the production thereof in any proceeding relating thereto, and any such proceeding instituted
by the Trustee shall be brought in its own name as trustee of an express trust, and any recovery
of judgment shall, after provision for the payment of the reasonable compensation, expenses, disbursements
and advances of the Trustee, its agents and counsel, be for the ratable benefit of the Holders of
the Securities and coupons in respect of which such judgment has been recovered.
Section 5.6 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 and any Additional Amounts, upon presentation
of the Securities or coupons, or both, as the case may be, and the notation thereon of the payment
if only partially paid and upon surrender thereof if fully paid:
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FIRST: To the payment of all amounts due the Trustee and any predecessor Trustee under Section 6.7; |
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SECOND: To the holders of Senior Indebtedness to the extent required by the provisions of Article 15. |
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THIRD: To the payment of the amounts then due and unpaid upon the Securities and coupons for principal
(and premium, if any) and interest and any Additional Amounts payable, 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), interest and Additional Amounts, respectively; and |
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FOURTH: To the payment of the remainder, if any, to the Company. |
Section 5.7 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:
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(1) such Holder has previously given written notice to the Trustee of a continuing Event of Default with
respect to the Securities of that series; |
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(2) the Holders of not less than 25% in principal amount of the Outstanding Securities of that series
shall have made written request to the Trustee to institute proceedings in respect of such Event
of Default in its own name as Trustee hereunder; |
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(3) such Holder or Holders have offered to the Trustee indemnity reasonably satisfactory to the Trustee
against the costs, expenses and liabilities to be incurred in compliance with such request; |
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(4) the Trustee for 60 days after its receipt of such notice, request and offer of indemnity has failed
to institute any such proceeding; and |
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(5) no direction inconsistent with such written request has been given to the Trustee during such 60-day
period by the Holders of a majority in principal amount of the Outstanding Securities of that series; |
it being understood and intended that no one or more of such Holders shall have any right in any manner
whatever by virtue of, or by availing of, any provision of this Indenture to affect, disturb or prejudice
the rights of any other of such Holders, or to obtain or to seek to obtain priority or preference
over any other of such Holders or to enforce any right under this Indenture, except in the manner
herein provided and for the equal and ratable benefit of all such Holders.
Section 5.8 Unconditional Right of Holders to Receive Principal, Premium, if any, Interest and Additional Amounts. Notwithstanding any other provision in this Indenture, the Holder of any Security or coupon
shall have the right which is absolute and unconditional to receive payment of the principal of (and
premium, if any) and (subject to Sections 3.5 and 3.7) interest on, and any Additional Amounts in
respect of, such Security or payment of such coupon on the respective due dates expressed in such
Security or coupon (or, in the case of redemption or repurchase, on the Redemption Date or Repurchase
Date, as the case may be) and, if applicable, to convert such Security in accordance with the provisions
of the applicable supplemental indenture or Board Resolutions and to institute suit for the enforcement
of any such payment, and such rights shall not be impaired without the consent of such Holder.
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Section 5.9 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 5.10 Rights and Remedies Cumulative. Except as otherwise provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities or coupons in the last paragraph of Section 3.6, 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 5.11 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 5.12 Control by Holders of Securities. The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series shall have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power conferred on the Trustee
with respect to the Securities of such series, provided that
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(1) such direction shall not be in conflict with any rule of law or with this Indenture, |
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(2) the Trustee may take any other action deemed proper by the Trustee which is not inconsistent with
such direction, and |
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(3) the Trustee need not take any action which might involve it in personal liability or be unduly prejudicial
to the Holders of Securities of such series not joining therein. |
Section 5.13 Waiver of Past Defaults. The Holders of not less than a majority in principal amount of the Outstanding Securities of
any series may on behalf of the Holders of all the Securities of such series and any related coupons
waive any past default hereunder with respect to such series and its consequences, except a default
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(1) in the payment of the principal of (or premium, if any) or interest on or Additional Amounts payable
in respect of any Security of such series or any related coupons, or |
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(2) in respect of a covenant or provision hereof which under Article 9 cannot be modified or amended without
the consent of the Holder of each Outstanding Security of such series affected. |
Upon any such waiver, such default shall cease to exist, and any Event of Default arising therefrom
shall be deemed to have been cured, for every purpose of this Indenture; but no such waiver shall
extend to any subsequent or other default or Event of Default or impair any right consequent thereon.
Section 5.14 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
usury, stay or extension law wherever enacted, now or at any time hereafter in force, which may affect
the covenants or the performance of this Indenture; and the Company (to the extent that it may lawfully
do so) hereby expressly waives all benefit or advantage of any such law, and covenants that it will
not hinder, delay or impede the execution of any power herein granted to the Trustee, but will suffer
and permit the execution of every such power as though no such law had been enacted.
Section 5.15 Undertaking for Costs. All parties to this Indenture agree, and each Holder of any Security by his acceptance thereof
shall be deemed to have agreed, that any court may in its discretion require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against the Trustee for any
action taken or omitted by it as Trustee, the filing by any party litigant in such suit of any undertaking
to pay the costs of such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys’ fees, against any party litigant in such suit having due regard
to the merits and good faith of the claims or defenses made by such party litigant; but the provisions
of this Section shall not apply to any suit instituted by the Trustee, to any suit instituted by
any Holder, or group of Holders, holding in the aggregate more than 10% in principal amount of the
Outstanding Securities, or to any suit instituted by any Holder for the enforcement of the payment
of the principal of (or premium, if any) or interest on any Security on or after the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on or after the Redemption Date).
ARTICLE 6
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities. (a) Except during the continuance of an Event of Default,
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(1) the Trustee undertakes to perform such duties and only such duties as are specifically set forth in
this Indenture, and no implied covenants or obligations shall be read into this Indenture against
the Trustee; and |
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(2) in the absence of bad faith on its part, the Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture; but in the case of any such
certificates or opinions which by any provision hereof are specifically required to be furnished
to the Trustee, the Trustee shall be under a duty to examine the same to determine whether or not
they conform to the requirements of this Indenture. |
(b) In case an Event of Default has occurred and is continuing, the Trustee shall exercise such of the
rights and powers vested in it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent person would exercise or use under the circumstances in the conduct of his
or her own affairs.
(c) No provision of this Indenture shall be construed to relieve the Trustee from liability for its own
negligent action, its own negligent failure to act, or its own willful misconduct, except that
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(1) this paragraph (c) shall not be construed to limit the effect of paragraph (a) of this Section; |
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(2) the Trustee shall not be liable for any error of judgment made in good faith by a Responsible Officer,
unless it shall be proved that the Trustee was negligent in ascertaining the pertinent facts; |
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(3) the Trustee shall not be liable with respect to any action taken or omitted to be taken by it in good
faith in accordance with the direction of the Holders of a majority in principal amount of the Outstanding
Securities relating to the time, method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the Trustee, under this Indenture;
and |
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(4) no provision of this Indenture shall require the Trustee to expend or risk its own funds or otherwise
incur any financial liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers. |
(d) Whether or not therein expressly so provided, every provision of this Indenture relating to the conduct
or affecting the liability of or affording protection to the Trustee (as Trustee, Paying Agent, Authenticating
Agent or Security Registrar) shall be subject to the provisions of this Section.
Section 6.2 Notice of Defaults. Within 90 days after the occurrence of any default hereunder with respect to the Securities
of any series, the Trustee shall transmit in the manner and to the extent provided in TIA Section
313(c), notice of such default hereunder known to the Trustee, unless such default shall have been
cured or waived; provided, however, that, except in the case of a default in the payment of the principal
of (or premium, if any) or interest on or any Additional Amounts with respect to any Security of
such series, or in the payment of any sinking fund installment with respect to the Securities of
such series, the Trustee shall be protected in withholding such notice if and so long as Responsible
Officers of the Trustee in good faith determine that the withholding of such notice is in the interests
of the
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Holders of the Securities and coupons of such series; and provided further that in the case of any
default or breach of the character specified in Section 5.1(4) with respect to the Securities and
coupons of such series, no such notice to Holders shall be given until at least 90 days after the
occurrence thereof. For the purpose of this Section, the term “default” means any event
which is, or after notice or lapse of time or both would become, an Event of Default with respect
to the Securities of such series.
Section 6.3 Certain Rights of Trustee. Subject to the provisions of TIA Section 315(a) through 315(d):
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(1) the Trustee may rely and shall be protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties; |
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(2) any request or direction of the Company mentioned herein shall be sufficiently evidenced by a Company
Request or Company Order (other than delivery of any Security, together with any coupons appertaining
thereto, to the Trustee for authentication and delivery pursuant to Section 3.3 which shall be sufficiently
evidenced as provided therein) and any resolution of the Board of Directors may be sufficiently evidenced
by a Board Resolution; |
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(3) whenever in the administration of this Indenture the Trustee shall deem it desirable that a matter
be proved or established prior to taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may request and, in the absence of bad
faith on its part, rely upon an Officers’ Certificate and Opinion of Counsel; |
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(4) the Trustee may consult with counsel and the advice of such counsel or any Opinion of Counsel shall
be full and complete authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon; |
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(5) the Trustee shall be under no obligation to exercise any of the rights or powers vested in it by this
Indenture at the request or direction of any of the Holders of Securities of any series or any related
coupons pursuant to this Indenture, unless such Holders shall have offered to the Trustee 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; |
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(6) the Trustee shall not be bound to make any investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, coupon or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters as it may see fit, and, if
the Trustee shall determine to make such further inquiry or investigation, it shall be entitled to
make |
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reasonable examination of the books, records and premises of the Company, personally or by agent or
attorney following reasonable notice to the Company; |
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(7) the Trustee may execute any of the trusts or powers hereunder or perform any duties hereunder either
directly or by or through agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it hereunder; and |
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(8) the Trustee shall not be liable for any action taken, suffered or omitted by it in good faith and
reasonably believed by it to be authorized or within the discretion or rights or powers conferred
upon it by this Indenture. |
The Trustee shall not be required to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise of any of its rights
or powers, if it shall have reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Except during the continuance of an Event of Default, the Trustee undertakes to perform 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.
Section 6.4 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. 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 6.5 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 6.6 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 6.7 Compensation and Reimbursement. The Company agrees:
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(1) to pay to the Trustee from time to time reasonable compensation for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to the compensation of
a trustee of an express trust); |
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(2) except as otherwise expressly provided herein, to reimburse each of the Trustee and any predecessor
Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel) except any such expense, disbursement
or advance as may be attributable to its negligence or bad faith; and |
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(3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on its own part, arising
out of or in connection with the acceptance or administration of the trust or trusts hereunder, including
the costs and expenses of defending itself against any claim or liability in connection with the
exercise or performance of any of its powers or duties hereunder. |
When the Trustee incurs expenses or renders services in connection with an Event of Default specified
in Section 5.l(5) or Section 5.1(6), the expenses (including the reasonable charges and expenses
of its counsel) and the compensation for the services are intended to constitute expenses of administration
under any applicable Federal or state bankruptcy, insolvency or other similar law.
As security for the performance of the obligations of the Company under this Section, the Trustee shall
have a lien 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
on particular Securities or any coupons.
The provisions of this Section shall survive the termination of this Indenture.
Section 6.8 Corporate Trustee Required; Eligibility; Conflicting Interests. 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.
If the Trustee has or shall acquire a conflicting interest within the meaning of the TIA, the Trustee
shall either eliminate such interest or resign to the extent and in the manner provided by and subject
to the provisions of the TIA and this Indenture.
Section 6.9 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 6.10.
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(b) The Trustee may resign at any time with respect to the Securities of one or more series by giving
written notice thereof to the Company. If an instrument of acceptance by a successor Trustee shall
not have been delivered to the Trustee within 30 days after the giving of such notice of resignation,
the resigning Trustee may petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(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:
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(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 |
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(2) the Trustee shall cease to be eligible under Section 6.8 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 |
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(3) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose of rehabilitation, conservation or liquidation, |
then, in any such case, (i) the Company by or pursuant to a Board Resolution may remove the Trustee
and appoint a successor Trustee with respect to all Securities, or (ii) subject to TIA Section 315(e),
any Holder of a Security who has been a bona fide Holder of a Security for at least six months may,
on behalf of himself and all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee with respect to all Securities and the appointment of a successor
Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy shall occur
in the office of Trustee for any cause with respect to the Securities of one or more series, the
Company, by or pursuant to a Board Resolution, shall promptly appoint a successor Trustee or Trustees
with respect to the Securities of that or those series (it being understood that any such successor
Trustee may be appointed with respect to the Securities of one or more or all of such series and
that at any time there shall be only one Trustee with respect to the Securities of any particular
series). If, within one year after such resignation, removal or incapability, or the occurrence of
such vacancy, a successor Trustee with respect to the Securities of any series shall be appointed
by Act of the Holders of a majority in principal amount of the Outstanding Securities of such series
delivered to the Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith
upon its acceptance of such appointment, become the successor Trustee with respect to the Securities
of such series and to that extent supersede the successor Trustee appointed by the Company. If no
successor Trustee with respect to the Securities of any series shall have been so appointed by the
Company or the Holders of Securities and accepted appointment in the manner hereinafter provided, any Holder of a
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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.
(f) The Company shall give notice of each resignation and each removal of the Trustee with respect to
the Securities of any series and each appointment of a successor Trustee with respect to the Securities
of any series in the manner provided for notices to the Holders of Securities in Section 1.6. 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 6.10 Acceptance of Appointment by Successor. (a) In case of the appointment hereunder of a successor Trustee with respect to
all Securities, every such successor Trustee shall execute, acknowledge and deliver to the Company
and to the retiring Trustee an instrument accepting such appointment, and thereupon the resignation
or removal of the retiring Trustee shall become effective and such successor Trustee, without any
further act, deed or conveyance, shall become vested with all the rights, powers, trusts and duties
of the retiring Trustee; but, on request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, 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.
(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,
pursuant to Article 9 hereof, 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 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.
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(c) Upon request of any such successor Trustee, the Company shall execute any and all instruments for
more fully and certainly vesting in and confirming to such successor Trustee all such rights, powers
and trusts referred to in paragraph (a) or (b) of this Section, as the case may be.
(d) No successor Trustee shall accept its appointment unless at the time of such acceptance such successor
Trustee shall be qualified and eligible under this Article.
Section 6.11 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 6.12 Appointment of Authenticating Agent. At any time when any of the Securities remain Outstanding, the Trustee may appoint an Authenticating
Agent or Agents with respect to one or more series of Securities which shall be authorized to act
on behalf of the Trustee to authenticate Securities of such series issued upon exchange, registration
of transfer or partial redemption or repayment thereof, and Securities so authenticated shall be
entitled to the benefits of this Indenture and shall be valid and obligatory for all purposes as
if authenticated by the Trustee hereunder. Any such appointment shall be evidenced by an instrument
in writing signed by a Responsible Officer of the Trustee, a copy of which instrument shall be promptly
furnished to the Company. Wherever reference is made in this Indenture to the authentication and
delivery of Securities by the Trustee or the Trustee’s certificate of authentication, such reference
shall be deemed to include authentication and delivery on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by an Authenticating
Agent. Each Authenticating Agent shall be acceptable to the Company and 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
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accordance with the provisions of this Section, such Authenticating Agent shall resign immediately
in the manner and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or converted or with which it may
be consolidated, or any corporation resulting from any merger, conversion or consolidation to which
such Authenticating Agent shall be a party, or any corporation succeeding to the corporate agency
or corporate trust business of an Authenticating Agent, shall continue to be an Authenticating Agent,
provided such corporation shall be otherwise eligible under this Section, without the execution or
filing of any paper or further act on the part of the Trustee or the Authenticating Agent.
An Authenticating Agent for any series of Securities may at any time resign by giving written notice
of resignation to the Trustee for such series and to the Company. 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 1.6. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent herein. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of this Section.
The Company agrees to pay to each Authenticating Agent from time to time reasonable compensation including
reimbursement of its reasonable expenses for its services under this Section.
If an appointment with respect to one or more series is made pursuant to this Section, the Securities
of such series may have endorsed thereon, in addition to or in lieu of the Trustee’s certificate
of authentication, an alternate certificate of authentication substantially in the following form:
This is one of the Securities of the series designated therein referred to in the within-mentioned
Indenture.
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as Trustee |
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By: , |
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as Authenticating Agent |
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By: , |
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Authorized Signatory |
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ARTICLE 7
HOLDERS’ LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Disclosure of Names and Addresses of Holders. Every Holder of Securities or coupons, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any Authenticating Agent nor any Paying
Agent nor any Security Registrar shall be held accountable by reason of the disclosure of any information
as to the names and addresses of the Holders of Securities in accordance with TIA Section 312, regardless
of the source from which such information was derived, and that the Trustee shall not be held accountable
by reason of mailing any material pursuant to a request made under TIA Section 312(b).
Section 7.2 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 upon which any Securities are listed with the Commission and
the Company. The Company will notify the Trustee when any Securities are listed on any stock exchange
and of any delisting thereof.
Section 7.3 Reports by Company. The Company will:
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(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 Sections 13(a)
or 13(b) 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, 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; |
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(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 |
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(3) file with the Trustee and the Commission, if applicable, and 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 |
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paragraphs (1) and (2) of this Section as may be required by rules and regulations prescribed from
time to time by the Commission and other information as may be required pursuant to the TIA at the
time and in the manner provided pursuant to such Act. |
Section 7.4 Company to Furnish Trustee Names and Addresses of Holders. (a) The Company will furnish or cause to be furnished to the Trustee:
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(i) semi-annually, not later than 10 days after the Regular Record Date for interest for each series of
Securities, a list, in such form as the Trustee may reasonably require, of the names and addresses
of the Holders of Registered Securities of such series as of such Regular Record Date, or if there
is no Regular Record Date for interest for such series of Securities, semi-annually, upon such dates
as are set forth in the Board Resolution or indenture supplemental hereto authorizing such series,
and such information, if any, concerning the holders of Bearer Securities that is known to the Company
or any Paying Agent other than the Company; provided, however, that the Company and such Paying Agents
shall have no obligation to investigate any matter relating to any holder of a Bearer Security or
a coupon appertaining thereto; and |
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(ii) at such other times as the Trustee may request in writing, within 30 days after the receipt by the
Company of any such request, a list of similar form and content as of a date not more than 15 days
prior to the time such list is furnished, |
provided, however, that, so long as the Trustee is the Security Registrar, no such list shall be required
to be furnished.
(b) The Company shall provide the Trustee with at least 30 days’ prior notice of any change in location
of its principal executive offices or other principal place of business.
ARTICLE 8
CONSOLIDATION, MERGER, SALE, LEASE OR CONVEYANCE
Section 8.1 Consolidations and Mergers of Company and Sales, Leases and Conveyances Permitted Subject to Certain
Conditions. The Company may consolidate with, or sell, lease, transfer, convey or otherwise dispose of
all or substantially all of its assets to, or merge with or into any other Person, provided that
in any such case, (1) either the Company shall be the continuing corporation, or the Person (if other
than the Company) formed by such consolidation or into which the Company is merged or the Person
which acquires or leases the Company’s assets substantially as an entirety is a corporation,
partnership, limited liability company or trust organized and existing under the laws of any United
States jurisdiction and expressly assumes the due and punctual payment of the principal of (and premium,
if any) and any interest (including all Additional Amounts, if any, payable pursuant to this Indenture
on all of the Securities, according to their tenor, and the due and punctual performance and observance
of all of the covenants and conditions of this Indenture to be performed by the Company and shall
have provided for conversion rights, if applicable, in accordance with the relevant supplemental
indenture or Board Resolution, by supplemental indenture, complying with Article 9 hereof, satisfactory
to the Trustee, executed and delivered to the Trustee by such corporation
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and (2) immediately after giving effect to such transaction and treating any indebtedness which becomes
an obligation of the Company or such Person or any Subsidiary as a result thereof as having been
incurred by the Company or such Subsidiary at the time of such transaction, no Event of Default,
and no event which, after notice or the lapse of time, or both, would become an Event of Default,
shall have occurred and be continuing.
Section 8.2 Rights and Duties of Successor Corporation. In case of any such consolidation, merger, sale, lease or conveyance and upon any such assumption
by the successor Person, such successor Person shall succeed to and be substituted for the Company,
with the same effect as if it had been named herein as the party of the first part, and the predecessor
corporation, except in the event of a lease, shall be relieved of any further obligation under this
Indenture and the Securities. Such successor Person 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 corporation, instead of the Company, and subject to all the terms, conditions
and limitations in this Indenture prescribed, 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 Person thereafter shall cause
to be signed and delivered to the Trustee for that purpose. All the Securities so issued shall in
all respects have the same legal rank and benefit under this Indenture as the Securities 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.
In case of any such consolidation, merger, sale, lease 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 8.3 Officers’ Certificate and Opinion of Counsel. Any consolidation, merger, sale, lease, transfer, conveyance or other dispositions permitted
under Section 8.1 is also subject to the condition that the Trustee receive an Officers’ Certificate
and an Opinion of Counsel to the effect that any such consolidation, merger, sale, lease, transfer
or conveyance or other dispositions and the assumption by any successor Person, complies with the
provisions of this Article and that all conditions precedent herein provided for relating to such
transaction have been complied with.
ARTICLE 9
SUPPLEMENTAL INDENTURES
Section 9.1 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:
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(1) to evidence the succession of another Person to the Company and the assumption by any such successor
of the covenants of the Company herein and in the Securities contained; or |
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(2) to add to the covenants of the Company for the equal and ratable 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 |
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(3) to add any additional Events of Default for the benefit of the Holders of all or any series of Securities
(and if such Events of Default are to be for the benefit of less than all series of Securities, stating
that such Events of Default are expressly being included solely for the benefit of such series);
provided, however, that in respect of any such additional Events of Default such supplemental indenture
may provide for a particular period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such default or may limit the
right of the Holders of a majority in aggregate principal amount of that or those series of Securities
to which such additional Events of Default apply to waive such default; or |
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(4) to add to or change any of the provisions of this Indenture to provide that Bearer Securities may
be registrable as to principal, to change or eliminate any restrictions on the payment of principal
of or any premium or interest on Bearer Securities, to permit Bearer Securities to be issued in exchange
for Registered Securities, to permit Bearer Securities to be issued in exchange for Bearer Securities
of other authorized denominations or to permit or facilitate the issuance of Securities in uncertificated
form, provided that any such action shall not adversely affect the interests of the Holders of Securities
of any series or any related coupons in any material respect; or |
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(5) to change or eliminate any of the provisions of this Indenture, provided that any such change or elimination
shall become effective only when there is no Security Outstanding of any series created prior to
the execution of such supplemental indenture which is entitled to the benefit of such provision; or |
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(6) to secure the Securities; or |
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(7) to establish the form or terms of Securities of any series and any related coupons as permitted by
Sections 2.1 and 3.1, including the provisions and procedures relating to Securities convertible
into Common Stock or Preferred Stock, as the case may be; or |
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(8) to evidence and provide for the acceptance of appointment hereunder by a successor Trustee with respect
to the Securities of one or more series and to add to or |
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change any of the provisions of this Indenture as shall be necessary to provide for or facilitate the
administration of the trusts hereunder by more than one Trustee; or |
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(9) to cure any ambiguity, to correct or supplement any provision herein which may be defective or inconsistent
with any other provision herein, or to make any other provisions with respect to matters or questions
arising under this Indenture which shall not be inconsistent with the provisions of this Indenture;
provided such provisions shall not adversely affect the interests of the Holders of Securities of
any series or any related coupons in any material respect; or |
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(10) to supplement any of the provisions of this Indenture to such extent as shall be necessary to permit
or facilitate the defeasance and discharge of any series of Securities pursuant to Sections 4.1,
14.2 and 14.3; 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 |
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(11) to make any change that does not adversely affect the rights of any holder of Securities of the applicable
series; or |
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(12) to make any change to comply with any requirement of the Commission in connection with the qualification
of the Indenture under TIA; or |
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(13) to provide for the issuance of uncertificated Securities of one or more series in addition to or in
place of certificated Securities; provided, however, that the uncertificated Securities are issued
in registered form for purposes of Section 163(f) of the Code or in a manner such that the uncertificated
Securities are described in Section 163(f)(2)(B) of the Code. |
Section 9.2 Supplemental Indentures with Consent of Holders. With the consent of the Holders of not less than a majority in principal amount of all Outstanding
Securities affected by such supplemental indenture, by Act of said Holders delivered to the Company
and the Trustee, the Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may enter into an indenture or indentures supplemental hereto for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this Indenture or of modifying
in any manner the rights of the Holders of Securities and any related coupons under this Indenture;
provided, however, that no such supplemental indenture shall, without the consent of the Holder of
each Outstanding Security affected thereby:
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(1) change the Stated Maturity of the principal of (or premium, if any, on) or any installment of principal
of or interest on, any Security; or reduce the principal amount thereof or the rate or amount of
interest thereon or any Additional Amounts payable in respect thereof, or any premium payable upon
the redemption thereof, or change any obligation of the Company to pay Additional Amounts pursuant
to Section 10.8 (except as contemplated by Section 8.1(1) and permitted by Section 9.1(1)), or reduce
the amount of the principal of an Original Issue Discount Security that would be due and payable
upon a declaration of acceleration of the Maturity thereof pursuant to Section 5.2 or the amount
thereof provable in bankruptcy pursuant to Section 5.4, or adversely affect any |
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right of repayment at the option of the Holder of any Security, or change any Place of Payment where,
or the currency or currencies, currency unit or units or composite currency or currencies in which,
any Security or any premium or the interest thereon is payable, or impair the right to institute
suit for the enforcement of any such payment on or after the Stated Maturity thereof (or, in the
case of redemption or repayment at the option of the Holder, on or after the Redemption Date or the
Repurchase Date, as the case may be); or |
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(2) reduce the percentage in principal amount of the Outstanding Securities of any series, the consent
of whose Holders is required for any such supplemental indenture, or the consent of whose Holders
is required for any waiver with respect to such series (or compliance with certain provisions of
this Indenture or certain defaults hereunder and their consequences) provided for in this Indenture; |
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(3) make any change that adversely affects the right to convert any Security; |
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(4) modify the provisions of the Indenture relating to the ranking of the Securities in a manner adverse
to the Holders of the Securities; |
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(5) impair the right to institute suit for the enforcement of any payment with respect to, or conversion
of, the Securities; or |
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(6) modify any of the provisions of this Section, Section 5.13 or Section 10.8, except to increase the
required percentage to effect such action or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each Outstanding Security affected
thereby. |
It shall not be necessary for any Act of Holders under this Section to approve the particular form
of any proposed supplemental indenture, but it shall be sufficient if such Act shall approve the
substance thereof.
A supplemental indenture which changes or eliminates any covenant or other provision of this Indenture
which has expressly been included solely for the benefit of one or more particular series of Securities,
or which modifies the rights of the Holders of Securities of such series with respect to such covenant
or other provision, shall be deemed not to affect the rights under this Indenture of the Holders
of Securities of any other series.
Section 9.3 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 (subject to Section 6.1) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture is authorized or
permitted by this Indenture. The Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee’s own rights, duties or immunities under this
Indenture or otherwise.
Section 9.4 Effect of Supplemental Indentures. Upon the execution of any supplemental indenture under this Article, this Indenture shall be
modified in accordance
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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 9.5 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 9.6 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 10
COVENANTS
Section 10.1 Payment of Principal, Premium, if any, Interest and Additional Amounts. The Company covenants and agrees for the benefit of the Holders of each series of Securities
that it will duly and punctually pay the principal of (and premium, if any) and interest on and any
Additional Amounts payable in respect of the Securities of that series in accordance with the terms
of such series of Securities, any coupons appertaining thereto and this Indenture. Unless otherwise
specified as contemplated by Section 3.1 with respect to any series of Securities, any interest due
on and any Additional Amounts payable in respect of Bearer Securities on or before Maturity, other
than Additional Amounts, if any, payable as provided in Section 10.8 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 3.1, 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.
Section 10.2 Maintenance of Office or Agency. If Securities of a series are issuable only as Registered Securities, the Company shall maintain
in each Place of Payment for any series of Securities an office or agency where Securities of that
series may be presented or surrendered for payment or conversion, where Securities of that series
may be surrendered for registration of transfer or exchange and where notices and demands to or upon
the Company in respect of the Securities of that series and this Indenture may be served. The Company
will give prompt written notice to the Trustee of the location, and any change in the location, of
each such office or agency. If Securities of a series are issuable as Bearer Securities, the Company
will maintain: (A) in the Borough of Manhattan, The City of New York, an office or agency where any
Registered Securities of that series may be presented or surrendered for payment or conversion, where
any Registered Securities of that series may be surrendered for registration of
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transfer, where Securities of that series may be surrendered for exchange, 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 or conversion in the circumstances described in the following paragraph (and not otherwise);
(B) subject to any laws or regulations applicable thereto, in a Place of Payment for that series
which is located outside the United States, an office or agency where Securities of that series and
related coupons may be presented and surrendered for payment (including payment of any Additional
Amounts payable on Securities of that series pursuant to Section 10.8) or conversion; provided, however,
that if the Securities of that series are listed on the Luxembourg Stock Exchange or any other stock
exchange located outside the United States and such stock exchange shall so require, the Company
will maintain a Paying Agent for the Securities of that series in Luxembourg or any other required
city located outside the United States, as the case may be, so long as the Securities of that series
are listed on such exchange; and (C) subject to any laws or regulations applicable thereto, in a
Place of Payment for that series located outside the United States an office or agency where any
Registered Securities of that series may be surrendered for registration of transfer, where Securities
of that series may be surrendered for exchange and where notices and demand to or upon the Company
in respect of the Securities of that series and this Indenture may be served. The Company will give
prompt written notice to the Trustee of the location, and any change in the location, of each such
office or agency. If at any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the Corporate Trust Office of the Trustee (except that Bearer
Securities of that series and the related coupons may be presented and surrendered for payment (including
payment of any Additional Amounts payable on Bearer Securities of that series pursuant to Section
10.8) or conversion at the offices specified in the Security, in London, England, and the Company
hereby appoints the same as its agent to receive such presentations, surrenders, notices and demands),
and the Company hereby appoints the Trustee its agent to receive all such presentations, surrenders, notices and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 3.1, no payment of principal,
premium or interest on or Additional Amounts in respect of Bearer Securities shall be made at any
office or agency of the Company in the United States or by check mailed to any address in the United
States or by transfer to an account maintained with a bank located in the United States; provided,
however, that, if the Securities of a series are payable in Dollars, payment of principal of and
any premium and interest on any Bearer Security (including any Additional Amounts payable on Securities
of such series pursuant to Section 10.8) 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, interest or Additional Amounts, as the case may be, at all
offices or agencies outside the United States maintained for the purpose by the Company in accordance
with this Indenture, is illegal or effectively precluded by exchange controls or other similar restrictions.
The Company may from time to time designate one or more other offices or agencies where the Securities
of one or more series may be presented or surrendered for any or all of such purposes, and may from
time to time rescind such designations; provided, however, that no such designation or rescission
shall in any manner relieve the Company of its obligation to maintain an office or agency in accordance
with the requirements set forth above for
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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 3.1 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, notice and demands.
Unless otherwise specified with respect to any Securities pursuant to Section 3.1, if and so long as
the Securities of any series (i) are denominated in a Foreign Currency or (ii) may be payable in
a Foreign Currency, or so long as it is required under any other provision of 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 10.3 Money for Securities Payments to Be Held in Trust. If the Company shall at any time act as its own Paying Agent with respect to any series of
any Securities and any related coupons, it will, on or before each due date of the principal of (and
premium, if any), or interest on or Additional Amounts in respect of, 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 or currencies, currency unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 3.1 for the Securities
of such series) sufficient to pay the principal (and premium, if any) or interest or Additional Amounts
so becoming due until such sums shall be paid to such Persons or otherwise disposed of as herein
provided, and will promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents for any series of Securities and any related
coupons, it will, before each due date of the principal of (and premium, if any), or interest on
or Additional Amounts in respect of, any Securities of that series, deposit with a Paying Agent a
sum (in the currency or currencies, currency unit or units or composite currency or currencies described
in the preceding paragraph) sufficient to pay the principal (and premium, if any) or interest or
Additional Amounts, so becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest or Additional Amounts and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute and deliver to the Trustee
an instrument in which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will
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(1) hold all sums held by it for the payment of principal of (and premium, if any) or interest on Securities
or Additional Amounts in trust for the benefit of the Persons entitled thereto until such sums shall
be paid to such Persons or otherwise disposed of as herein provided; |
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(2) give the Trustee notice of any default by the Company (or any other obligor upon the Securities) in
the making of any such payment of principal (and premium, if any) or interest or Additional Amounts;
and |
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(3) at any time during the continuance of any Event of Default upon the written request of the Trustee,
forthwith pay to the Trustee all sums so held in trust by such Paying Agent. |
The Company may at any time, for the purpose of obtaining the satisfaction and discharge of this Indenture
or for any other purpose, pay, or by Company Order direct any Paying Agent to pay, to the Trustee
all sums held in trust by the Company or such Paying Agent, such sums to be held by the Trustee upon
the same trusts as those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be released from all
further liability with respect to such sums.
Except as otherwise provided in the Securities of any series, any money deposited with the Trustee
or any Paying Agent, or then held by the Company, in trust for the payment of the principal of (and
premium, if any) or interest on, or any Additional Amounts in respect of, any Security of any series
and remaining unclaimed for two years after such principal (and premium, if any), interest or Additional
Amounts 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 of (and
premium, if any) or interest on, or any Additional Amounts in respect of, any Security, without interest
thereon, and all liability of the Trustee or such Paying Agent with respect to such trust money,
and all liability of the Company as trustee thereof, shall thereupon cease; provided, however, that
the Trustee or such Paying Agent, before being required to make any such repayment, may at the expense
of the Company cause to be published once, in an Authorized Newspaper, notice that such money remains
unclaimed and that, after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining will be repaid to the Company.
Section 10.4 Existence. Subject to Article 8, the Company will do or cause to be done all things necessary to preserve
and keep in full force and effect its corporate existence, rights (charter and statutory) and franchises,
except to the extent that the Board of Directors shall determine that the failure to do so would
not have a material adverse effect on the business, assets, financial condition or results of operation
of the Company (a “Material Adverse Effect”); provided, however, that the Company shall
not be required to preserve any right or franchise if the Board of Directors shall determine that
the preservation thereof is no longer desirable in the conduct of the business of the Company and
that the loss thereof is not disadvantageous in any material respect to the Holders.
Section 10.5 Maintenance of Properties. The Company will cause all of it properties used or useful in the conduct of its business or
the business of any Subsidiary to be maintained and kept in good condition, repair and working order
and supplied with all necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of the Company may be
necessary so that the
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business carried on in connection therewith may be properly and advantageously conducted at all times,
except to the extent that the failure to do so would not have a Material Adverse Effect on the Company;
provided, however, that the Company shall not be required to continue the operation or maintenance
of any such property or be prevented from disposing of such property if the Board of Directors shall
determine that such discontinuance or disposal is desirable in the conduct of the business of the
Company or the business of any Subsidiary and not disadvantageous in any material respect to the Holders.
Section 10.6 Payment of Taxes and Other Claims. The Company will pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges levied or imposed upon it
or any Subsidiary or upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by law become a lien
upon the property of the Company or any Subsidiary and have a Material Adverse Effect; provided,
however, that the Company shall not be required to pay or discharge or cause to be paid or discharged
any such tax, assessment, charge or claim whose amount, applicability or validity is being contested
in good faith by appropriate proceedings.
Section 10.7 Statement as to Compliance. The Company will deliver to the Trustee, within 120 days after the end of each fiscal year
of the Company, a 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
terms, conditions and provisions under this Indenture and, in the event of any noncompliance, specifying
such noncompliance and the nature and status thereof. For purposes of this Section 10.7, such compliance
shall be determined without regard to any period of grace or requirement of notice under this Indenture.
Section 10.8 Additional Amounts. If any Securities of a series provide for the payment of Additional Amounts, the Company will
pay to the Holder of any Security of such series or any coupon appertaining thereto Additional Amounts
as may be specified as contemplated by Section 3.1. Whenever in this Indenture there is mentioned,
in any context except in the case of Section 5.2(1), the payment of the principal of or any premium
or interest on, or in respect of, 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 3.1 to the extent that, in such context, Additional Amounts are,
were or would be payable in respect thereof pursuant to such terms and express mention of the payment
of Additional Amounts (if applicable) in any provisions hereof shall not be construed as excluding
Additional Amounts in those provisions hereof where such express mention is not made.
Except as otherwise specified as contemplated by Section 3.1, 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 and any 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
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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 of and any 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 (i) to assume that no such withholding or deduction is required with
respect to any payment of principal or interest with respect to any Securities of a series or related
coupons until it shall have received a certificate advising otherwise and (ii) to make all payments
of principal and interest with respect to the Securities of a series or related coupons without withholding
or deductions until otherwise advised. The Company covenants to indemnify the Trustee and any Paying
Agent for, and to hold them harmless against, any loss, liability or expense reasonably incurred
without negligence or bad faith on their part arising out of or in connection with actions taken
or omitted by any of them or in reliance on any Officers’ Certificate furnished pursuant to
this Section or in reliance on the Company’s not furnishing such an Officers’ Certificate.
The obligations of the Company under this Section shall survive any termination, defeasance or discharge
of the Indenture or applicable Security.
Section 10.9 Waiver of Certain Covenants. The Company may omit in any particular instance to comply with any term, provision or condition
set forth in Sections 10.4 to 10.6, inclusive, if before the time for such compliance the Holders
of at least a majority in principal amount of all outstanding Securities of such series, by Act of
such Holders, either waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become effective, the obligations
of the Company and the duties of the Trustee in respect of any such term, provision or condition
shall remain in full force and effect.
ARTICLE 11
REDEMPTION OF SECURITIES
Section 11.1 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 3.1
for Securities of any series) in accordance with this Article.
Section 11.2 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 all or any part of
the Securities of any series, the Company shall, at least 45 days prior to the giving of the notice
of redemption in
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Section 11.4 (unless a shorter notice shall be satisfactory to the Trustee), notify the Trustee of
such Redemption Date and of the principal amount of Securities of such series to be redeemed. 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 11.3 Selection by Trustee of Securities to Be Redeemed. If less than all the Securities of any series issued on the same day with the same terms are
to be redeemed, the particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities of such series issued
on such date with the same terms not previously called for redemption, by such method as the Trustee
shall deem fair and appropriate and which may provide for the selection for redemption of portions
(equal to the minimum authorized denomination for Securities of that series or any integral multiple
thereof) of the principal amount of Securities of such series of a denomination larger than the minimum
authorized denomination for Securities of that series.
The Trustee shall promptly notify the Company and the Security Registrar (if other than itself) in
writing of the Securities selected for redemption and, in the case of any Securities selected for
partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise requires, all provisions relating
to the redemption of Securities shall relate, in the case of any Security redeemed or to be redeemed
only in part, to the portion of the principal amount of such Security which has been or is to be
redeemed.
Section 11.4 Notice of Redemption. Notice of redemption shall be given in the manner provided in Section 1.6, 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 3.1, to each Holder of Securities to be
redeemed, but failure to give such notice in the manner herein provided to the Holder of any Security
designated for redemption as a whole or in part, or any defect in the notice to any such Holder,
shall not affect the validity of the proceedings for the redemption of any other such Security or
portion thereof.
Any notice that is mailed to the Holders of Registered Securities in the manner herein provided shall
be conclusively presumed to have been duly given, whether or not the Holder receives the notice.
All notices of redemption shall state:
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(1) the Redemption Date, |
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(2) the Redemption Price, accrued interest to the Redemption Date payable as provided in Section 11.6,
if any, and Additional Amounts, if any, |
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(3) if less than all Outstanding Securities of any series are to be redeemed, the identification (and,
in the case of partial redemption, the principal amount) of the particular Security or Securities
to be redeemed, |
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(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, |
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(5) that on the Redemption Date the Redemption Price and accrued interest to the Redemption Date payable
as provided in Section 11.6, if any, 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, |
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(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, or for conversion, |
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(7) that the redemption is for a sinking fund, if such is the case, |
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(8) that, unless otherwise specified in such notice, Bearer Securities of any series, if any, surrendered
for redemption must be accompanied by all coupons maturing subsequent to the date fixed for redemption
or the amount of any such missing coupon or coupons will be deducted from the Redemption Price, unless
security or indemnity satisfactory to the Company, the Trustee for such series and any Paying Agent
is furnished, |
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(9) if Bearer Securities of any series are to be redeemed and any Registered Securities of such series
are not to be redeemed, and if such Bearer Securities may be exchanged for Registered Securities
not subject to redemption on this Redemption Date pursuant to Section 3.5 or otherwise, the last
date, as determined by the Company, on which such exchanges may be made, |
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(10) the CUSIP number of such Security, if any, and |
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(11) if applicable, that a Holder of Securities who desires to convert Securities for redemption must satisfy
the requirements for conversion contained in such Securities, the then existing conversion price
or rate and the date and time when the option to convert shall expire. |
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 11.5 Deposit of Redemption Price. Not later than 11:00 a.m. on the 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 12, segregate and hold in trust as provided in
Section 10.3) an amount of money in the currency or currencies, currency unit or units or composite
currency or currencies in which the Securities of such series are payable (except as otherwise specified
pursuant to Section 3.1 for the Securities of such series) sufficient to pay on the Redemption Date the
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Redemption Price of, and (except if the Redemption Date shall be an Interest Payment Date) accrued
interest on, all the Securities or portions thereof which are to be redeemed on that date.
Section 11.6 Securities Payable on Redemption Date. Notice of redemption having been given as aforesaid, the Securities so to be redeemed shall,
on the Redemption Date, become due and payable at the Redemption Price therein specified in the currency
or currencies, currency unit or units or composite currency or currencies in which the Securities
of such series are payable (except as otherwise specified pursuant to Section 3.1 for the Securities
of such series) (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)
such Securities shall, if the same were interest-bearing, cease to bear interest and the coupons
for such interest appertaining to any Bearer Securities so to be redeemed, except to the extent provided
below, shall be void. Upon surrender of any such Security for redemption in accordance with said
notice, together with all coupons, if any, appertaining thereto maturing after the Redemption Date,
such Security shall be paid by the Company at the Redemption Price, together with accrued interest,
if any, to the Redemption Date; provided, however, that installments of interest on Bearer Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable only at an office or
agency located outside the United States (except as otherwise provided in Section 10.2) and, unless
otherwise specified as contemplated by Section 3.1, only upon presentation and surrender of coupons
for such interest; and provided further that, except as otherwise provided with respect to Securities
convertible into Common Stock or Preferred Stock, installments of interest on Registered Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the close of business on
the relevant Record Dates according to their terms and the provisions of Section 3.7.
If any Bearer Security surrendered for redemption shall not be accompanied by all appurtenant coupons
maturing after the Redemption Date, such Security may be paid after deducting from the Redemption
Price an amount equal to the face amount of all such missing coupons, or the surrender of such missing
coupon or coupons may be waived by the Company and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any Paying Agent harmless. If
thereafter the Holder of such Security shall surrender to the Trustee or any Paying Agent any such
missing coupon in respect of which a deduction shall have been made from the Redemption Price, such
Holder shall be entitled to receive the amount so deducted; provided, however, that interest represented
by coupons shall be payable only at an office or agency located outside the United States (except
as otherwise provided in Section 10.2) and, unless otherwise specified as contemplated by Section
3.1, only upon presentation and surrender of those coupons.
If any Security called for redemption shall not be so paid upon surrender thereof for redemption, the
principal (and premium, if any) shall, until paid, bear interest from the Redemption Date at the
rate borne by the Security.
Section 11.7 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 12) 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
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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.
ARTICLE 12
SINKING FUNDS
Section 12.1 Applicability of Article. The provisions of this Article shall be applicable to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section 3.1 for Securities
of such series.
The minimum amount of any sinking fund payment provided for by the terms of Securities of any series
is herein referred to as a “mandatory sinking fund payment,” and any payment in excess
of such minimum amount provided for by the terms of such Securities of any series is herein referred
to as an “optional sinking fund payment.” If provided for by the terms of any Securities
of any series, the cash amount of any mandatory sinking fund payment may be subject to reduction
as provided in Section 12.2. 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 12.2 Satisfaction of Sinking Fund Payments with Securities. The Company may, in satisfaction of all or any part of any mandatory sinking fund payment with
respect to the Securities of a series required to be made pursuant to the terms of such Securities
as provided for by the terms of such series, (1) deliver Outstanding Securities of such series (other
than any previously called for redemption) together, in the case of any Bearer Securities of such
series, with all unmatured coupons appertaining thereto and (2) apply as a credit Securities of such
series which have been redeemed either at the election of the Company pursuant to the terms of such
Securities or through the application of permitted optional sinking fund payments pursuant to the
terms of such Securities, as provided for by the terms of such Securities, or which have otherwise
been acquired by the Company; 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 12.3 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 or currencies,
currency unit or units or composite currency or currencies in which the Securities of such series
are payable (except as otherwise specified pursuant to Section 3.1 for the Securities of such series)
and the portion thereof, if any, which is to be satisfied by delivering and crediting Securities
of that series pursuant to Section 12.2, and the optional amount, if any, to be added in cash to
the next ensuing
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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 11.3 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 11.4. Such notice having
been duly given, the redemption of such Securities shall be made upon the terms and in the manner
stated in Sections 11.6 and 11.7.
ARTICLE 13
REPURCHASE AT THE OPTION OF HOLDERS
Section 13.1 Applicability of Article. Repurchase 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, if any, and (except as otherwise
specified by the terms of such series established pursuant to Section 3.1) in accordance with this
Article.
Section 13.2 Repurchase 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 a price equal
to the principal amount thereof, together with interest, if any, thereon accrued to the Repurchase
Date specified in or pursuant to the terms of such Securities. The Company covenants that not later
than 12:00 noon on the Repurchase Date it will deposit with the Trustee or with a Paying Agent (or,
if the Company is acting as its own Paying Agent, segregate and hold in trust as provided in Section
10.3) an amount of money in the currency or currencies, currency unit or units or composite currency
or currencies in which the Securities of such series are payable (except as otherwise specified pursuant
to Section 3.1 for the Securities of such series) sufficient to pay the principal (or, if so provided
by the terms of the Securities of any series, a percentage of the principal) of, and (except if the
Repurchase Date shall be an Interest Payment Date) accrued interest on, all the Securities or portions
thereof, as the case may be, to be repaid on such date.
Section 13.3 Notice; Exercise of Repurchase Right. (a) On or before the 15th day after the Company knows or reasonably should know
an event giving rise to a repurchase right has occurred, the Company, or at the written request of
the Company, the Trustee (in the name and at the expense of the Company), shall give notice of the
occurrence of such event and of the repurchase right set forth herein arising as a result thereof
by first-class mail, postage prepaid, or by telefacsimile with written acknowledgment of transmittal
to each Holder of the Securities at such Holder’s address appearing in the Security Register.
The Company shall also deliver a copy of such notice of a repurchase right to the Trustee.
Each notice of a repurchase right shall state:
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(1) the Repurchase Date, |
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(2) the date by which the repurchase right must be exercised, |
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(3) the Repurchase Price, and |
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(4) the instructions a Holder must follow to exercise its repurchase right. |
No failure of the Company to give the foregoing notice shall limit any Holder’s right to exercise
a repurchase right. The Trustee shall have no affirmative obligation to determine if there shall
have occurred such an event.
(b) To exercise a repurchase right, a Holder shall deliver to the Company (or an agent designated by the
Company for such purpose in the notice referred to in (a) above) and to the Trustee on or before
the 30th day after the date of transmittal of the notice referred to in (a) above (i) written notice
of the Holder’s exercise of such right, which notice shall set forth the name of the Holder,
the principal amount of the Security or Securities (or portion of a Security) to be repurchased,
and a statement that an election to exercise the repurchase right is being made thereby, and (ii)
the Security or Securities with respect to which the repurchase right is being exercised, duly endorsed
for transfer to the Company. Such written notice shall be irrevocable. If the Repurchase Date falls
between any Regular Record Date and the corresponding succeeding Interest Payment Date, Securities
to be repurchased must be accompanied by payment from the Holder of an amount equal to the interest
thereon which the registered Holder thereof is to receive on such Interest Payment Date.
Section 13.4 When Securities Presented for Repurchase Become Due and Payable. If Securities of any series providing for repayment at the option of the Holders thereof shall
have been surrendered as provided in this Article and as provided by or pursuant to the terms of
such Securities, such Securities or the portions thereof, as the case may be, to be repaid shall
become due and payable and shall be paid by the Company on the Repurchase Date therein specified,
and on and after such Repurchase Date (unless the Company shall default in the payment of such Securities
on such Repurchase 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 Repurchase Date, the principal amount of such Security so to be repaid shall be paid by
the Company, together with accrued interest, if any, to the Repurchase Date; provided, however, that
coupons whose Stated Maturity is on or prior to the Repurchase Date shall be payable only at an office
or agency located outside the United States (except as otherwise provided in Section 10.2) and, unless
otherwise specified pursuant to Section 3.1, only upon presentation and surrender of such coupons;
and provided further that, in the case of Registered Securities, installments of interest, if any,
whose Stated Maturity is on or prior to the Repurchase 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 3.7.
If any Bearer Security surrendered for repayment shall not be accompanied by all appurtenant coupons
maturing after the Repurchase Date, such Security may be paid after deducting from the amount payable
therefor as provided in Section 13.2 an amount equal to the face amount of all such missing coupons,
or the surrender of such missing coupon or coupons
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may be waived by the Company and the Trustee if there be furnished to them such security or indemnity
as they may require to save each of them and any Paying Agent harmless. If thereafter the Holder
of such Security shall surrender to the Trustee or any Paying Agent any such missing coupon in respect
of which a deduction shall have been made as provided in the preceding sentence, such Holder shall
be entitled to receive the amount so deducted; provided, however, that interest represented by coupons
shall be payable only at an office or agency located outside the United States (except as otherwise
provided in Section 10.2) and, unless otherwise specified as contemplated by Section 3.1, only upon
presentation and surrender of those coupons.
If the principal amount of any Security surrendered for repayment shall not be so repaid upon surrender
thereof, such principal amount (together with interest, if any, thereon accrued to such Repurchase
Date) shall, until paid, bear interest from the Repurchase Date at the rate of interest or Yield
to Maturity (in the case of Original Issue Discount Securities) set forth in such Security.
Section 13.5 Securities Not Repurchased on Repurchase Date. If any Security surrendered for repurchase shall not be so paid on the Repurchase Date, the
principal of such Security shall, until paid, bear interest from the Repurchase Date at a rate borne
by such Security.
Section 13.6 Securities Repaid in Part. Upon Registered Security which is to be repaid in part only execute and the Trustee shall authenticate
and deliver Security, without service charge and at the expense of 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 14
DEFEASANCE AND COVENANT DEFEASANCE
Section 14.1 Applicability of Article; Company’s Option to Effect Defeasance or Covenant Defeasance. 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 14.2 (if applicable) or Section 14.3
(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 14.2 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 be deemed to have been discharged from
its obligations with respect to such Outstanding Securities and any coupons appertaining thereto
and the provisions of Article 15 hereof shall cease to be effective on the date the conditions set
forth in Section 14.4 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 14.5 and the other Sections
of this Indenture referred to in clauses (A) and (B) below, and to have satisfied all of its other
obligations under
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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 14.4 and as more fully set forth in such Section, payments in respect of the principal
of (and premium, if any) and interest, if any, on such Securities and any coupons appertaining thereto
when such payments are due, (B) the Company’s obligations with respect to such Securities under
Sections 3.5, 3.6, 10.2 and 10.3 and with respect to the payment of Additional Amounts, if any, on
such Securities as contemplated by Section 10.8, (C) the rights, powers, trusts, duties and immunities
of the Trustee hereunder and (D) this Article. Subject to compliance with this Article 14, the Company
may exercise its option under this Section notwithstanding the prior exercise of its option under
Section 14.3 with respect to such Securities and any coupons appertaining thereto.
Section 14.3 Covenant Defeasance. Upon the Company’s exercise of the above option applicable to this Section with respect
to any Securities of or within a series, the Company shall be released from its obligations under
Sections 10.4 to 10.6, inclusive, and, if specified pursuant to Section 3.1, its obligations under
any other covenant, with respect to such Outstanding Securities and any coupons appertaining thereto
and the provisions of Article 15 hereof shall cease to be effective, on and after the date the conditions
set forth in Section 14.4 are satisfied (hereinafter, “covenant defeasance”), and such
Securities and any coupons appertaining thereto shall thereafter be deemed to be not “Outstanding”
for the purposes of any direction, waiver, consent or declaration or Act of Holders (and the consequences
of any thereof) in connection with Sections 10.4 to 10.6, inclusive, or such other covenant, but
shall continue to be deemed “Outstanding” for all other purposes hereunder. For this purpose,
such covenant defeasance means that, with respect to such Outstanding Securities and any coupons
appertaining thereto, the Company may omit to comply with and shall have no liability in respect
of any term, condition or limitation set forth in any such Section or such other covenant, whether
directly or indirectly, by reason of any reference elsewhere herein to any such Section or such other
covenant or by reason of reference in any such Section or such other covenant to any other provision
herein or in any other document and such omission to comply shall not constitute a default or an
Event of Default under Section 5.1(4) (with respect to any of Sections 10.4, 10.5 or 10.6) or 5.1(7)
or otherwise, as the case may be, but, except as specified above, the remainder of this Indenture
and such Securities and any coupons appertaining thereto shall be unaffected thereby.
Section 14.4 Conditions to Defeasance or Covenant Defeasance. The following shall be the conditions to application of Section 14.2 or Section 14.3 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 6.8 who shall agree to comply with the provisions
of this Article 14 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, currencies
or currency unit in which such Securities and any
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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,
currencies or currency unit 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 any case, in an
amount, sufficient, without consideration of any reinvestment of such principal and interest, in
the opinion of a nationally recognized firm of independent public accountants expressed in a written
certification thereof delivered to the Trustee, to pay and discharge, and which shall be applied
by the Trustee (or other qualifying trustee) to pay and discharge, (i) the principal of (and premium,
if any) and interest, if any, on such Outstanding Securities and any coupons appertaining thereto
on the Stated Maturity of such principal or installment of principal or interest and (ii) any mandatory
sinking fund payments or analogous payments applicable to such Outstanding Securities and any coupons
appertaining thereto on the day on which such payments are due and payable in accordance with the
terms of this Indenture and of such Securities and any coupons appertaining thereto.
(b) At the time of such deposit: (A) no default in the payment of all or a portion of principal of (or
premium, if any) or interest on or other obligations in respect of any Senior Indebtedness shall
have occurred and be continuing, and no event of default with respect to any Senior Indebtedness
shall have occurred and be continuing and shall have resulted in such Senior Indebtedness becoming
or being declared due and payable prior to the date on which it would otherwise have become due and
payable and (B) no other event with respect to any Senior Indebtedness shall have occurred and be
continuing permitting (after notice or the lapse of time, or both) the holders of such Senior Indebtedness
(or a trustee on behalf of the holders thereof) to declare such Senior Indebtedness due and payable
prior to the date on which it would otherwise have become due and payable, or, in the case of either
clause (A) or clause (B) above, each such default or event of default shall have been cured or waived
or shall have ceased to exist.
(c) 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.
(d) No Event of Default or event which with notice or lapse of time or both would become an Event of Default
with respect to such Securities and any coupons appertaining thereto shall have occurred and be continuing
on the date of such deposit or, insofar as Sections 5.1(5) and 5.1(6) are concerned, at any time
during the period ending on the 91st day after the date of such deposit (it being understood that
this condition shall not be deemed satisfied until the expiration of such period).
(e) In the case of an election under Section 14.2, the Company shall have delivered to the Trustee an
Opinion of Counsel stating that (i) the from, or there has been published by, the Internal Revenue
(ii) since the date of execution of this Indenture, there the applicable Federal income tax law,
in either case to based thereon such opinion shall confirm that, the Holders of such Outstanding
Securities recognize income, gain or loss such defeasance
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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.
(f) In the case of an election under Section 14.3, 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.
(g) 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 14.2 or the covenant defeasance
under Section 14.3 (as the case may be) have been complied with and an Opinion of Counsel to the
effect that either (i) as a result of a deposit pursuant to subsection (a) above and the related
exercise of the Company’s option under Section 14.2 or Section 14.3 (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.
(h) The Company shall have delivered to the Trustee an Officers’ Certificate to the effect that the
Securities, if then listed on any securities exchange, will not be delisted as a result of such deposit.
(i) Such defeasance or covenant defeasance shall not cause the Trustee to have a conflicting interest
as defined in Article 6 and for purposes of the TIA with respect to any securities of the Company.
(j) 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 3.1.
Section 14.5 Deposited Money and Government Obligations to Be Held in Trust; Other Miscellaneous Provisions. Subject to the provisions of the last paragraph of Section 10.3, all money and Government Obligations
(or other property as may be provided pursuant to Section 3.1) (including the proceeds thereof) deposited
with the Trustee (or other qualifying trustee, collectively for purposes of this Section 14.5, the
“Trustee”) pursuant to Section 14.4 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 and Additional Amounts, if any, but such money need not be segregated from other funds except
to the extent required by law. Money so held in trust shall not be subject to the provisions of Article 15.
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Unless otherwise specified with respect to any Security pursuant to Section 3.1, if, after a deposit
referred to in Section 14.4(a) has been made, (a) the Holder of a Security in respect of which such
deposit was made is entitled to, and does, elect pursuant to Section 3.1 or the terms of such Security
to receive payment in a currency or currency unit other than that in which the deposit pursuant to
Section 14.4(a) has been made in respect of such Security, or (b) a Currency Conversion Event occurs
in respect of the currency or currency unit in which the deposit pursuant to Section 14.4(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 in the case of any such election) the amount or
other property deposited in respect of such Security into the currency or currency unit in which
such Security becomes payable as a result of such election or Currency Conversion Event based on
the applicable market exchange rate for such currency or currency unit in effect on the second Business
Day prior to each payment date, except, with respect to a Currency Conversion Event, for such currency
or currency unit in effect (as nearly as feasible) at the time of the Currency Conversion Event.
The Company shall pay and indemnify the Trustee against any tax, fee or other charge imposed on or
assessed against the Government Obligations deposited pursuant to Section 14.4 or the principal and
interest received in respect thereof other than any such tax, fee or other charge which by law is
for the account of the Holders of such Outstanding Securities and any coupons appertaining thereto.
Anything in this Article to the contrary notwithstanding, subject to Section 6.7, 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 14.4 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 an equivalent defeasance or covenant defeasance, as applicable,
in accordance with this Article.
Section 14.6 Reinstatement. If the Trustee or the Paying Agent is unable to apply any money in accordance with Section
14.2 or 14.3 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 the Securities shall be revived and reinstated as though no deposit had occurred
pursuant to this Article until such time as the Trustee or Paying Agent is permitted to apply all
such money in accordance with Section 14.2 or 14.3; provided, however, that if the Company makes
any payment of principal of, premium, if any, or interest on any Security following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money held by the Trustee or the Paying Agent.
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ARTICLE 15
SUBORDINATION
Section 15.1 Agreement to Subordinate. The Company agrees, and each Holder of Securities by accepting a Security agrees, that the
indebtedness evidenced by the Securities is subordinated in right of payment, to the extent and in
the manner provided in this Article, to the prior payment in full of all Senior Indebtedness and
that the subordination is for the benefit of the holders of Senior Indebtedness. The Securities shall
in all respects rank pasi passu with all other Senior Subordinated Indebtedness and shall rank senior to all existing and future Subordinated
Indebtedness of the Issuer and only Indebtedness of the Issuer that is Senior Indebtedness of the
Issuer shall rank senior to the Securities in accordance with the provisions set forth herein.
Section 15.2 Liquidation; Dissolution; Bankruptcy. Upon any distribution to creditors of the Company in a liquidation or dissolution of the Company
or in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to the
Company or its property:
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(1) holders of Senior Indebtedness shall be entitled to receive payment in full in cash of the principal
of and interest (including interest accruing after the commencement of any such proceeding) to the
date of payment on the Senior Indebtedness before Holders of Securities shall be entitled to receive
any payment of principal of or interest on Securities; and |
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(2) until the Senior Indebtedness is paid in full in cash, any distribution to which Holders of Securities
would be entitled but for this Article shall be made to holders of Senior Indebtedness as their interests
may appear, except that Holders of Securities may receive securities that are subordinated to Senior
Indebtedness to at least the same extent as the Securities. |
Section 15.3 Default on Senior Indebtedness. The Company may not pay principal of or interest on the Securities and may not acquire any
Securities for cash or property other than capital stock of the Company if:
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(1) a default on Senior Indebtedness occurs and is continuing that permits holders of such Senior Indebtedness
to accelerate its maturity, and |
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(2) the default is the subject of judicial proceedings or the Company receives a notice of the default
from a person who may give it pursuant to Section 15.11. If the Company receives any such notice,
a similar notice received within nine months thereafter relating to the same default on the same
issue of Senior Debt shall not be effective for purposes of this Section. |
The Company may resume payments on the Securities and may acquire them when:
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(1) the default is cured or waived, or |
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(2) 120 days pass after the notice is given if the default is not the subject of judicial proceedings,
if this Article otherwise permits the payment or acquisition at that time.
Section 15.4 Acceleration of Securities. If payment of the Securities is accelerated because of an Event of Default, the Company shall
promptly notify holders of Senior Indebtedness of the acceleration. The Company may pay the Securities
when 120 days pass after the acceleration occurs if this Article permits the payment at that time.
Section 15.5 When Distribution Must Be Paid Over. If a distribution is made to Holders of Securities that because of this Article should not
have been made to them, the Holders of Securities who receive the distribution shall hold it in trust
for holders of Senior Indebtedness and pay it over to them as their interests may appear.
Section 15.6 Notice by Company. The Company shall promptly notify the Trustee and any Paying Agent of any facts known to the
Company that would cause a payment of principal of or interest on Securities to violate this Article.
Section 15.7 Subrogation. After all Senior Indebtedness is paid in full and until the Securities are paid in full, Holders
of Securities shall be subrogated to the rights of holders of Senior Indebtedness to receive distributions
applicable to Senior Indebtedness to the extent that distributions otherwise payable to the Holders
of Securities have been applied to the payment of Senior Indebtedness. A distribution made under
this Article to holders of Senior Indebtedness which otherwise would have been made to Holders of
Securities is not, as between the Company and Holders of Securities, a payment by the Company on
Senior Indebtedness.
Section 15.8 Relative Rights. This Article defines the relative rights of Holders of Securities and holders of Senior Indebtedness.
Nothing in this Indenture shall:
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(1) impair, as between the Company and Holders of Securities, the obligation of the Company, which is
absolute and unconditional, to pay principal of and interest on the Securities in accordance with
their terms; |
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(2) affect the relative rights of Holders of Securities and creditors of the Company other than holders
of Senior Indebtedness; or |
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(3) prevent the Trustee or any Holders of Securities from exercising its available remedies upon an Event
of Default, subject to the rights of holders of Senior Indebtedness to receive distributions otherwise
payable to Holders of Securities. |
If the Company fails because of this Article to pay principal of or interest on a Security on the due
date, the failure is still an Event of Default as provided elsewhere herein.
Section 15.9 Subordination May Not Be Impaired by Trust. No right of any holder of Senior Indebtedness to enforce the subordination of the Indebtedness
evidenced by the Securities shall be impaired by any act or failure to act by the Company or by its
failure to comply with this Indenture.
76
Section 15.10 Distribution or Notice to Representative. Whenever a distribution is to be made or a notice given to holders of Senior Indebtedness,
the distribution may be made and the notice given to their Representative.
Section 15.11 Rights of Trustee and Paying Agent. The Trustee or any Paying Agent may continue to make payments on the Securities until it receives
notice of facts that would cause a payment of principal of or interest on the Securities to violate
this Article. Only the Company, a Representative or a holder of an issue of Senior Indebtedness that
has no Representative may give the notice.
* * * * *
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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 all as of the
day and year first above written.
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SIRIUS SATELLITE RADIO INC.
By: ___________________________
Name:
Title: |
Attest:
Title:
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______________________________,
as Trustee
By: ___________________________
Name:
Title: |
Attest:
Title:
| STATE OF NEW YORK |
) |
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) ss: |
| COUNTY OF NEW YORK |
) |
On the day of , before me personally came , to me known, who, being by me duly sworn, did depose and say that he/she resides at , , that he/she
is of SIRIUS SATELLITE RADIO INC., one of the parties described in and which executed the foregoing
instrument, and that he/she signed his/her name thereto by authority of SIRIUS SATELLITE RADIO INC.’s
board of directors.
[Notarial Seal]
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Notary Public
COMMISSION EXPIRES |
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|
| STATE OF NEW YORK |
) |
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) ss: |
| COUNTY OF NEW YORK |
) |
On the day of , before me personally came
, to me known, who, being by me duly sworn, did depose and say that he/she resides at , that he/she
is of , one of the parties described in and which executed the foregoing instrument, and that he/she
signed his/her name thereto by authority of Board of Trustees.
[Notarial Seal]
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Notary Public
COMMISSION EXPIRES |
EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set forth below, the above-captioned
Securities held by you for our account (i) are owned by person(s) that are not citizens or residents
of the United States, domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States federal income taxation regardless of its source (“United
States person(s)”), (ii) are owned by United States person(s) that are (a) foreign
branches of United States financial institutions (financial institutions, as defined in United States
Treasury Regulations Section 1.165-12(c)(1)(v) are herein referred to as “financial institutions”)
purchasing for their own account or for resale, or (b) United States person(s) who acquired
the Securities through foreign branches of United States financial institutions and who hold the
Securities through such United States financial institutions on the date hereof (and in either case
(a) or (b), each such United States financial institution hereby agrees, on its own behalf or through
its agent, that you may advise Sirius Satellite Radio 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.
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: ,
19
[To be dated no earlier than the 15th day prior
to (i) the Exchange Date or (ii) the relevant
Interest Payment Date occurring prior to the
Exchange Date, as applicable]
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[Name of Person Making
Certification]
(Authorized Signatory)
Name:
Title: |
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR AND CEDEL S.A. IN CONNECTION WITH THE EXCHANGE OF A PORTION
OF A TEMPORARY GLOBAL SECURITY OR TO OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that we have received in writing, by
tested telex or by electronic transmission from each of the persons appearing in our records as persons
entitled to a portion of the principal amount set forth below (our “Member Organizations”)
substantially in the form attached hereto, as of the date hereof, [U.S.$] ____________ principal
amount of the above-captioned Securities (i) is owned by person(s) that are not citizens or residents
of the United States, domestic partnerships, domestic corporations or any estate or trust the income
of which is subject to United States Federal income taxation regardless of its source (“United
States person(s)”), (ii) is owned by United States person(s) that are (a) foreign branches
of United States financial institutions (financial institutions, as defined in U.S. Treasury Regulations
Section 1.165-12(c)(1)(v) are herein referred to as “financial institutions”) purchasing
for their own account or for resale, or (b) United States person(s) who acquired the Securities through
foreign branches of United States financial institutions and who hold the Securities through such
United States financial institutions on the date hereof (and in either case (a) or (b), each such
financial institution has agreed, on its own behalf or through its agent, that we may advise Sirius
Satellite Radio 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: ,
19
[To be dated no earlier than the Exchange Date
or the relevant Interest Payment Date occurring
prior to the Exchange Date, as applicable]
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[Morgan Guaranty Trust Company of New York,
Brussels Office,] as Operator of the Euroclear
System
[Cedel S.A.]
By: |