EXHIBIT 99.2
INDENTURE, dated as of May 23, 2003, between SIRIUS SATELLITE RADIO
INC. (f/k/a CD RADIO INC.), a Delaware corporation (hereinafter called the
"Company"), having its principal office at 1221 Avenue of the Americas, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 and THE BANK OF NEW YORK, a New York banking
corporation, as Trustee hereunder (hereinafter called the "Trustee"), having
its Corporate Trust Office at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
RECITALS OF THE COMPANY
The Company deems it necessary to issue from time to time for its
lawful purposes senior debt securities (hereinafter called the "Securities")
evidencing its senior 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:
(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;
(3) all accounting terms not otherwise defined herein have
the meanings assigned to them in accordance with GAAP;
(4) the word "including" means "including without
limitation," and
(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.
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"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 Payment or particular location are authorized or required by law,
regulation or executive order to close.
"Clearstream" means Clearstream Banking, societe anonyme, or its
successor.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the 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 000 Xxxxxxx
Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000.
"corporation" means a corporation, association, partnership,
companies (including limited liability companies) joint-stock company or
business trust.
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"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.
"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 Xxxxxx 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 Euro, issued by the government of one or more
countries other than the United States of America or by any recognized
confederation or association of such governments.
"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
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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 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.
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"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;
(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;
(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;
(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
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purchaser in whose hands such Securities are valid obligations
of the Company; and
(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 a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities so owned
which have been pledged in good faith may be regarded as Outstanding if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so
to act with respect to such Securities and that the pledgee is not the Company
or any other obligor upon the Securities or any Affiliate of the Company or of
such other obligor.
"Paying Agent" means any Person 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
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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.
"Responsible Officer," when used with respect to the Trustee, means
any vice president (whether or not designated by a number or a word or words
added before or after the title "vice president,") the secretary, any
assistant secretary, the treasurer, any assistant treasurer, any corporate
trust officer, 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.
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"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.
"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.
"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
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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) 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,
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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.
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
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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 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.
(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.
(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 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,
(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
14
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,
(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.
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
15
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 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
16
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.
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.
17
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.
as Trustee
By
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 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.
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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 Clearstream.
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):
(1) the title of the Securities of the series (which shall
distinguish the Securities of such series from all other series of
Securities);
(2) any limit upon the aggregate principal amount of the
Securities of the series that may be authenticated and delivered
under this Indenture (except for Securities authenticated and
delivered upon registration of transfer of, or in exchange for, or in
lieu of, other Securities of the series pursuant to Section 3.4, 3.5,
3.6, 9.6, 11.7 or 13.6);
(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;
19
(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;
(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;
(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;
(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;
(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 Securities of the series shall be
redeemed, repaid or purchased, in whole or in part, pursuant to such
obligation;
(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);
(10) if other than denominations of $1,000 and any integral
multiple thereof, the denominations in which any Registered
Securities of the series shall
20
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;
(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;
(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;
(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;
(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 currency or currencies,
currency unit or units or composite currency or currencies in which
such Securities are to be so payable;
(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;
21
(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;
(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 14;
(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;
(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;
(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;
(19) the appointment of any trustee, any authenticating or
paying agents, transfer agent or registrars;
(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;
(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
22
indenture as then in effect and including provisions addressing
priority, perfection and escrow arrangements related to the security
interest;
(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;
(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;
(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;
(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
(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 Registered
Securities issued in global form (which may be of any
23
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
Clearstream, 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
24
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 Securities, and
accepting the additional responsibilities under this Indenture in relation to
such Securities, the Trustee shall be entitled to receive, and (subject to TIA
Section 315(a) through 315(d)) shall be fully protected in relying upon,
(i) an Opinion of Counsel stating that:
(a) the form or forms of such Securities and any coupons
have been established in conformity with the provisions of this
Indenture;
(b) the terms of such Securities and any coupons have been
established in conformity with the provisions of this Indenture; and
(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
(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.
25
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
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
26
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 Clearstream, for credit
to the respective accounts of the beneficial owners of such Securities (or to
such other accounts as they may direct).
Without unnecessary delay but in any event not later than the date
specified in, or determined pursuant to the terms of, any such temporary
global Security (the "Exchange Date"), the Company shall deliver to the
Trustee definitive Securities, in aggregate principal amount equal to the
principal amount of such temporary global Security, executed by the Company.
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 Clearstream as to the portion of such temporary global Security held
for its account then to be exchanged, each in the form set forth in Exhibit
A-2 to this Indenture or in such other form as may be established pursuant to
Section 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 Clearstream, as the case may be, to request such exchange on his
behalf and delivers to Euroclear or Clearstream, as the case may be, a
certificate in the form set forth in Exhibit A-1 to this Indenture (or in such
other form as may be established pursuant to Section 3.1), dated no earlier
than
27
15 days prior to the Exchange Date, copies of which certificate shall be
available from the offices of Euroclear and Clearstream, the Trustee, any
Authenticating Agent appointed for such series of Securities and each Paying
Agent. Unless otherwise specified in such temporary global Security, any such
exchange shall be made free of charge to the beneficial owners of such
temporary global Security, except that a Person receiving definitive
Securities must bear the cost of insurance, postage, transportation and the
like unless such Person takes delivery of such definitive Securities in person
at the offices of Euroclear or Clearstream. Definitive Securities in bearer
form to be delivered in exchange for any portion of a temporary global
Security shall be delivered only outside the United States.
Until exchanged in full as hereinabove provided, the temporary
Securities of any series shall in all respects be entitled to the same
benefits under this Indenture as definitive Securities of the same series and
of like tenor authenticated and delivered hereunder, except that, unless
otherwise specified as contemplated by Section 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 Clearstream on such Interest Payment Date upon delivery by
Euroclear and Clearstream to the Trustee of a certificate or certificates in
the form set forth in Exhibit A-2 to this Indenture (or in such other forms as
may be established pursuant to Section 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
Clearstream, as the case may be, a certificate dated no earlier than 15 days
prior to the Interest Payment Date occurring prior to such Exchange Date in
the form set forth as Exhibit A-1 to this Indenture (or in such other forms as
may be established pursuant to Section 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 Clearstream and
not paid as herein provided shall be returned to the Trustee prior to the
expiration of two years after such Interest Payment Date in order to be repaid
to the Company.
Section 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
28
"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 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
29
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 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
30
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 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,
31
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.
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
32
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 Clearstream, as
the case may be, with respect to that portion of such 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.
33
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:
(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.
34
Notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the Persons in whose names the
Registered Securities of such series (or their respective
Predecessor Securities) are registered at the close of business on
such Special Record Date and shall no longer be payable pursuant to
the following clause (2). In case a Bearer Security of any series is
surrendered at the office or agency in a Place of Payment for such
series in exchange for a Registered Security of such series after
the close of business at such office or agency on any Special Record
Date and before the opening of business at such office or agency on
the related proposed date for payment of Defaulted Interest, such
Bearer Security shall be surrendered without the coupon relating to
such proposed date of payment and Defaulted Interest will not be
payable on such proposed date of payment in respect of the
Registered Security issued in exchange for such Bearer Security, but
will be payable only to the Holder of such coupon when due in
accordance with the provisions of this Indenture.
(2) The Company may make payment of any Defaulted Interest
on the Registered Securities of any series in any other lawful manner
not inconsistent with the requirements of any securities exchange on
which such Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
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
35
or payments made on account of beneficial ownership interests of a Security in
global form or for maintaining, supervising or reviewing any records relating
to such beneficial ownership interests.
Notwithstanding the foregoing, with respect to any global Security,
nothing herein shall prevent the Company, the Trustee, or any agent of the
Company or the Trustee, from giving effect to any written certification, proxy
or other authorization furnished by any depositary, as a Holder, with respect
to such global Security or impair, as between such depositary and owners of
beneficial interests in such global Security, the operation of customary
practices governing the exercise of the rights of such depositary (or its
nominee) as Holder of such global Security.
Section 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 disposed of by
the Trustee and the Trustee shall deliver a certificate of such disposition 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
36
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:
(1) either
(A) all Securities of such series theretofore
authenticated and delivered and all coupons, if any, appertaining
thereto (other than (i) coupons appertaining to Bearer Securities
surrendered for exchange for Registered Securities and maturing
after such exchange, whose surrender is not required or has been
waived as provided in Section 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
(B) all Securities of such series and, in the case of (i)
or (ii) below, any coupons appertaining thereto not theretofore
delivered to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) if redeemable at the option of the Company, are to
be called for redemption within one year under arrangements
satisfactory to the Trustee for the giving of notice of redemption
by the Trustee in the name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be deposited with the Trustee as
trust funds in trust for 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
37
deposit (in the case of Securities which have become due and
payable) or to the Stated Maturity or Redemption Date, as the case
may be;
(2) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the
satisfaction and discharge of this Indenture as to such series have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee and any predecessor Trustee under
Section 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 voluntary or involuntary or be effected by
operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body)
(1) default in the payment of any interest upon or any
Additional 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; or
38
(2) default in the payment of the principal of (or premium,
if any, on) any Security of that series when it becomes due and
payable at its Maturity; or
(3) default in the deposit of any sinking fund payment, when
and as due by the terms of any Security of that series; or
(4) default in the performance, or breach, of any covenant
or 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
(5) the Company or any Significant Subsidiary pursuant to
or within the meaning of any Bankruptcy Law:
(A) commences a voluntary case,
(B) consents to the entry of an order for relief
against it in an involuntary case,
(C) consents to the appointment of a Custodian of it
or for all or substantially all of its property, or
(D) makes a general assignment for the benefit of
its creditors; or
(6) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary in an involuntary case,
(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
(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
(7) any other Event of Default provided with respect to
Securities of that series.
39
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.
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:
(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):
(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,
(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,
(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
(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
40
(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.
Section 5.3 Collection of Indebtedness and Suits for
Enforcement by Trustee. The Company covenants that if:
(1) default is made in the payment of any installment of
interest 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
(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.
41
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:
(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 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
(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
42
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:
FIRST: To the payment of all amounts due the Trustee and
any predecessor Trustee under Section 6.7;
SECOND: 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
THIRD: 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:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default with respect to the
Securities of that series;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities of that series shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity reasonably satisfactory to the Trustee against the costs,
expenses and liabilities to be incurred in compliance with such
request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity has failed to institute any
such proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities of that
series;
43
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.
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
44
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
(1) such direction shall not be in conflict with any rule
of law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction, and
(3) the Trustee need not take any action which might
involve it in personal liability or be 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
(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
(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.
45
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,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to
be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the
requirements of this Indenture (but need not confirm or investigate
the accuracy of mathematical calculations or other facts stated
therein).
(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
46
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this Section;
(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;
(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
(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
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):
(1) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note,
47
coupon or other paper or document believed by it to be genuine and
to have been signed or presented by the proper party or parties;
(2) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
(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;
(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;
(4) the Trustee may consult with counsel and the advice of
such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders of Securities of any series or any
related coupons pursuant to this Indenture, unless such Holders shall
have offered to the Trustee 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;
(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 reasonable examination
of the books, records and premises of the Company, personally or by
agent or attorney following reasonable notice to the Company at the
sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(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;
48
(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;
(9) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the
Trustee has actual knowledge thereof or unless written notice of any
event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references
the Securities and this Indenture; and
(10) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its
right to be indemnified, are extended to, and shall be enforceable
by, the Trustee in each of its capacities hereunder, and each agent,
custodian or other Person employed to act hereunder.
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.
49
Section 6.7 Compensation and Reimbursement. The Company agrees:
(1) to pay to the Trustee from time to time such
compensation for all services rendered by it hereunder as the
Company and the Trustee shall from time to time agree in writing
(which compensation shall not be limited by any provision of law in
regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse each of the Trustee and any predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee in accordance with any provision of
this Indenture (including the reasonable compensation and the
expenses and disbursements of its agents and counsel) except any
such expense, disbursement or advance as may be attributable to its
negligence or bad faith; and
(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, or in connection with enforcing the provisions of
this Section.
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.
50
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.
(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:
(1) the Trustee shall fail to comply with the provisions
of TIA Section 310(b) after written request therefor by the Company
or by any Holder of a Security who has been a bona fide Holder of a
Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section
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
(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.
51
(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 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
52
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.
(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
53
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 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
54
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.
as Trustee
By: ,
as Authenticating Agent
By: ,
Authorized Signatory
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
55
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:
(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;
(2) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports with
respect to compliance by the Company with the conditions and
covenants of this Indenture as may be required from time to time by
such rules and regulations; and
(3) 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 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.
Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt
of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
including the Company's compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on
Officers' Certificates).
Section 7.4 Company to Furnish Trustee Names and Addresses of
Holders.
56
(a) The Company will furnish or cause to be furnished to
the Trustee:
(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
(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,
57
complying with Article 9 hereof, satisfactory to the Trustee, executed and
delivered to the Trustee by such corporation 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
58
time to time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Securities contained; or
(2) to add to the covenants of the Company for the 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
(3) to add any additional Events of Default for the benefit
of the Holders of all or any series of Securities (and if such Events
of Default are to be for the benefit of less than all series of
Securities, stating that such Events of Default are expressly being
included solely for the benefit of such series); provided, however,
that in respect of any such additional Events of Default such
supplemental indenture may provide for a particular period of grace
after default (which period may be shorter or longer than that
allowed in the case of other defaults) or may provide for an
immediate enforcement upon such default or may limit the remedies
available to the Trustee upon such default or may limit the right of
the Holders of a majority in aggregate principal amount of that or
those series of Securities to which such additional Events of Default
apply to waive such default; or
(4) to add to or change any of the provisions of this
Indenture to provide that Bearer Securities may be registrable as to
principal, to change or eliminate any restrictions on the payment of
principal of or any premium or interest on Bearer Securities, to
permit Bearer Securities to be issued in exchange for Registered
Securities, to permit Bearer Securities to be issued in exchange for
Bearer Securities of other authorized denominations or to permit or
facilitate the issuance of Securities in uncertificated form,
provided that any such action shall not adversely affect the
interests of the Holders of Securities of any series or any related
coupons in any material respect; or
(5) to change or eliminate any of the provisions of this
Indenture, provided that any such change or elimination shall become
effective only when there is no Security Outstanding of any series
created prior to the execution of such supplemental indenture which
is entitled to the benefit of such provision; or
(6) to secure the Securities; or
(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
59
(8) to evidence and provide for the acceptance of
appointment hereunder by a successor Trustee with respect to the
Securities of one or more series and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for or
facilitate the administration of the trusts hereunder by more than
one Trustee; or
(9) to cure any ambiguity, to correct or supplement any
provision herein which may be 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
(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
(11) to make any change that does not adversely affect the
rights of any holder of Securities of the applicable series; or
(12) to make any change to comply with any requirement of
the Commission in connection with the qualification of the Indenture
under TIA; or
(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:
(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
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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 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
(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;
(3) make any change that adversely affects the right to
convert any Security;
(4) modify the provisions of the Indenture relating to the
ranking of the Securities in a manner adverse to the Holders of the
Securities;
(5) impair the right to institute suit for the enforcement
of any payment with respect to, or conversion of, the Securities; or
(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.
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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 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.
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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 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
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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 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.
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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
(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;
(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
(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
65
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 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
66
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.
The Company shall deliver to the Trustee, as soon as possible and in
any event within five days after the Company becomes aware of the ocurrence of
any Event of Default or an event which, with notice or the lapse of time or
both, would constitute an Event of Default, an Officers' Certificate setting
forth the details of such Event of Default or default and the action which the
Company proposes to take with respect thereto.
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 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
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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.
Section 10.10 Calculation of Original Issue Discount. The Company
shall provide to the Trustee on a timely basis such information as the Trustee
requires to enable the Trustee to prepare and file any form required to be
submitted by the Company with the Internal Revenue Service and the Holders of
Securities of any Series relating to original issue discount, including,
without limitation, Form 1099-OID or any successor form.
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 Section 11.4
(unless a shorter notice shall be satisfactory to
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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:
(1) the Redemption Date,
(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,
(4) in case any Security is to be redeemed in part only, the notice
which relates to such Security shall state that on and after the
Redemption Date, upon surrender of such Security, the holder will
receive, without a charge, a new Security or Securities of authorized
denominations for the principal amount thereof remaining unredeemed,
(5) that on the Redemption Date the Redemption Price and accrued
interest 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,
(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,
(7) that the redemption is for a sinking fund, if such is the case,
(8) that, unless otherwise specified in such notice, Bearer
Securities of any series, if any, surrendered for redemption must be
accompanied by all coupons maturing subsequent to the date fixed for
redemption or the amount of any such missing coupon or coupons will be
deducted from the Redemption Price, unless security or indemnity
satisfactory to the Company, the Trustee for such series and any Paying
Agent is furnished,
(9) if Bearer Securities of any series are to be redeemed and any
Registered Securities of such series are not to be redeemed, and if such
Bearer Securities may be exchanged for Registered Securities not subject
to redemption on this Redemption Date pursuant to Section 3.5 or
otherwise, the last date, as determined by the Company, on which such
exchanges may be made,
(10) the CUSIP number of such Security, if any, and
(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.
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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 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
71
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
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
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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 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
73
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:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be exercised,
(3) the Repurchase Price, and
(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
74
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 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.
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Section 13.6 Securities Repaid in Part. Upon surrender of any
Registered Security which is to be repaid in part only, the Company shall
execute and the Trustee shall authenticate and deliver to the Holder of such
Security, without service charge and at the expense of the Company, a new
Registered Security or Securities of the same series, of any authorized
denomination specified by the Holder, in an aggregate principal amount equal
to and in exchange for the portion of the principal of such Security so
surrendered which is not to be repaid.
ARTICLE 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 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 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,
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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 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 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
77
payments or analogous payments applicable to such Outstanding Securities and
any coupons appertaining thereto on the day on which such payments are due and
payable in accordance with the terms of this Indenture and of such Securities
and any coupons appertaining thereto.
(b) Such defeasance or covenant defeasance shall not result in a
breach or violation of, or constitute a default under, this Indenture or any
other material agreement or instrument to which the Company is a party or by
which it is bound.
(c) No 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).
(d) 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
Company has received from, or there has been published by, the Internal
Revenue Service a ruling, or (ii) since the date of execution of this
Indenture, there has been a change in the applicable Federal income tax law,
in either case to the effect that, and based thereon such opinion shall
confirm that, the Holders of such Outstanding Securities and any coupons
appertaining thereto will not recognize income, gain or loss for Federal
income tax purposes as a result of such defeasance and will be subject to
Federal income tax on the same amounts, in the same manner and at the same
times as would have been the case if such defeasance had not occurred.
(e) In the case of an election under Section 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.
(f) The Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent to the defeasance under Section 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.
78
(g) 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.
(h) 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.
(i) 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.
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.
79
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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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.
SIRIUS SATELLITE RADIO INC.
By:
Title:
THE BANK OF NEW YORK, as Trustee
By:
Title:
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EXHIBIT A
FORMS OF CERTIFICATION
EXHIBIT A-1
FORM OF CERTIFICATE TO BE GIVEN BY PERSON ENTITLED
TO RECEIVE BEARER SECURITY OR TO OBTAIN INTEREST
PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, as of the date hereof, and except as set
forth below, the above-captioned Securities held by you for our account (i)
are owned by person(s) that are not citizens or residents of the United
States, domestic partnerships, domestic corporations or any estate 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
82
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]
[Name of Person Making
Certification]
(Authorized Signatory)
Name:
Title:
83
EXHIBIT A-2
FORM OF CERTIFICATE TO BE GIVEN BY EUROCLEAR
AND CLEARSTREAM, SOCIETE ANONYME IN CONNECTION WITH THE
EXCHANGE OF A PORTION OF A TEMPORARY GLOBAL SECURITY OR TO
OBTAIN INTEREST PAYABLE PRIOR TO THE EXCHANGE DATE
CERTIFICATE
[Insert title or sufficient description of Securities to be delivered]
This is to certify that, based solely on written certifications that
we have received in writing, by tested telex or by electronic transmission
from each of the persons appearing in our records as persons entitled to a
portion of the principal amount set forth below (our "Member Organizations")
substantially in the form attached hereto, as of the date hereof, [U.S.$]
_____________ principal amount of the above-captioned Securities (i) is owned
by person(s) that are not citizens or residents of the United States, domestic
partnerships, domestic corporations or any estate 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
84
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]
[Xxxxxx Guaranty Trust Company of
New York, Brussels Office,] as
Operator of the Euroclear System
[Cedel S.A.]
By:
85
SIRIUS SATELLITE RADIO INC.
AND
THE BANK OF NEW YORK
Trustee
Indenture
Dated as of September May 23, 2003
Senior Indebtedness Securities
77
TABLE OF CONTENTS
Page
----
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION...............................................1
Section 1.1 Definitions...............................................1
Section 1.2 Compliance Certificates and Opinions.....................10
Section 1.3 Form of Documents Delivered to Trustee...................10
Section 1.4 Acts of Holders..........................................11
Section 1.5 Notices, etc., to Trustee and Company....................13
Section 1.6 Notice to Holders; Waiver................................14
Section 1.7 Effect of Headings and Table of Contents.................15
Section 1.8 Successors and Assigns...................................15
Section 1.9 Separability Clause......................................15
Section 1.10 Benefits of Indenture....................................15
Section 1.11 Governing Law............................................15
Section 1.12 Legal Holidays...........................................15
Section 1.13 Personal Immunity from Liability for Incorporators,
Stockholders, Etc........................................16
Section 1.14 Conflict with Trust Indenture Act........................16
ARTICLE 2 SECURITIES FORMS.........................................16
Section 2.1 Forms of Securities......................................16
Section 2.2 Form of Trustee's Certificate of Authentication..........17
Section 2.3 Securities Issuable in Global Form.......................17
ARTICLE 3 THE SECURITIES...........................................18
Section 3.1 Amount Unlimited; Issuable in Series.....................18
Section 3.2 Denominations............................................22
Section 3.3 Execution, Authentication, Delivery and Dating...........23
Section 3.4 Temporary Securities.....................................25
Section 3.5 Registration, Registration of Transfer and Exchange......27
Section 3.6 Mutilated, Destroyed, Lost and Stolen Securities.........31
Section 3.7 Payment of Interest; Interest Rights Preserved...........32
Section 3.8 Persons Deemed Owners....................................34
Section 3.9 Cancellation.............................................35
Section 3.10 Computation of Interest..................................35
ARTICLE 4 SATISFACTION AND DISCHARGE...............................35
Section 4.1 Satisfaction and Discharge of Indenture..................35
Section 4.2 Application of Trust Funds...............................37
ARTICLE 5 REMEDIES.................................................37
Section 5.1 Events of Default........................................37
Section 5.2 Acceleration of Maturity; Rescission and Annulment.......39
78
Section 5.3 Collection of Indebtedness and Suits for Enforcement
by Trustee...............................................40
Section 5.4 Trustee May File Proofs of Claim.........................41
Section 5.5 Trustee May Enforce Claims Without Possession of
Securities or Coupons....................................41
Section 5.6 Application of Money Collected...........................42
Section 5.7 Limitation on Suits......................................42
Section 5.8 Unconditional Right of Holders to Receive Principal,
Premium, if any, Interest and Additional Amounts.........43
Section 5.9 Restoration of Rights and Remedies.......................43
Section 5.10 Rights and Remedies Cumulative...........................43
Section 5.11 Delay or Omission Not Waiver.............................43
Section 5.12 Control by Holders of Securities.........................44
Section 5.13 Waiver of Past Defaults..................................44
Section 5.14 Waiver of Usury, Stay or Extension Laws..................44
Section 5.15 Undertaking for Costs....................................45
ARTICLE 6 THE TRUSTEE..............................................45
Section 6.1 Certain Duties and Responsibilities......................45
Section 6.2 Notice of Defaults.......................................46
Section 6.3 Certain Rights of Trustee................................46
Section 6.4 Not Responsible for Recitals or Issuance of Securities...48
Section 6.5 May Hold Securities......................................48
Section 6.6 Money Held in Trust......................................48
Section 6.7 Compensation and Reimbursement...........................49
Section 6.8 Corporate Trustee Required; Eligibility;
Conflicting Interests....................................49
Section 6.9 Resignation and Removal; Appointment of Successor........49
Section 6.10 Acceptance of Appointment by Successor...................51
Section 6.11 Merger, Conversion, Consolidation or Succession
to Business............................................. 52
Section 6.12 Appointment of Authenticating Agent......................52
ARTICLE 7 HOLDERS' LISTS AND REPORTS BY TRUSTEE AND
COMPANY 54
Section 7.1 Disclosure of Names and Addresses of Holders.............54
Section 7.2 Reports by Trustee.......................................54
Section 7.3 Reports by Company.......................................54
Section 7.4 Company to Furnish Trustee Names and
Addresses of Holders.....................................55
ARTICLE 8 CONSOLIDATION, MERGER, SALE, LEASE OR
CONVEYANCE...............................................56
Section 8.1 Consolidations and Mergers of Company and Sales,
Leases and Conveyances Permitted Subject to
Certain Conditions.......................................56
Section 8.2 Rights and Duties of Successor Corporation...............56
79
Section 8.3 Officers' Certificate and Opinion of Counsel.............57
ARTICLE 9 SUPPLEMENTAL INDENTURES..................................57
Section 9.1 Supplemental Indentures without Consent of Holders.......57
Section 9.2 Supplemental Indentures with Consent of Holders..........59
Section 9.3 Execution of Supplemental Indentures.....................60
Section 9.4 Effect of Supplemental Indentures........................60
Section 9.5 Conformity with Trust Indenture Act......................60
Section 9.6 Reference in Securities to Supplemental Indentures.......60
ARTICLE 10 COVENANTS................................................61
Section 10.1 Payment of Principal, Premium, if any, Interest
and Additional Amounts...................................61
Section 10.2 Maintenance of Office or Agency..........................61
Section 10.3 Money for Securities Payments to Be Held in Trust........63
Section 10.4 Existence................................................64
Section 10.5 Maintenance of Properties................................64
Section 10.6 Payment of Taxes and Other Claims........................65
Section 10.7 Statement as to Compliance...............................65
Section 10.8 Additional Amounts.......................................65
Section 10.9 Waiver of Certain Covenants..............................66
ARTICLE 11 REDEMPTION OF SECURITIES.................................66
Section 11.1 Applicability of Article.................................66
Section 11.2 Election to Redeem; Notice to Trustee....................67
Section 11.3 Selection by Trustee of Securities to Be Redeemed........67
Section 11.4 Notice of Redemption.....................................67
Section 11.5 Deposit of Redemption Price..............................69
Section 11.6 Securities Payable on Redemption Date....................69
Section 11.7 Securities Redeemed in Part..............................70
ARTICLE 12 SINKING FUNDS............................................70
Section 12.1 Applicability of Article.................................70
Section 12.2 Satisfaction of Sinking Fund Payments with Securities....70
Section 12.3 Redemption of Securities for Sinking Fund................71
ARTICLE 13 REPURCHASE AT THE OPTION OF HOLDERS......................71
Section 13.1 Applicability of Article.................................71
Section 13.2 Repurchase of Securities.................................71
Section 13.3 Notice; Exercise of Repurchase Right.....................72
Section 13.4 When Securities Presented for Repurchase Become
Due and Payable..........................................73
Section 13.5 Securities Not Repurchased on Repurchase Date............74
Section 13.6 Securities Repaid in Part................................74
ARTICLE 14 DEFEASANCE AND COVENANT DEFEASANCE.......................74
80
Section 14.1 Applicability of Article; Company's Option to
Effect Defeasance or Covenant Defeasance.................74
Section 14.2 Defeasance and Discharge.................................74
Section 14.3 Covenant Defeasance......................................75
Section 14.4 Conditions to Defeasance or Covenant Defeasance..........75
Section 14.5 Deposited Money and Government Obligations to Be
Held in Trust; Other Miscellaneous Provisions............77
Section 14.6 Reinstatement............................................78
TESTIMONIUM
SIGNATURES AND SEALS
ACKNOWLEDGMENTS
EXHIBIT A - FORMS OF CERTIFICATION
80
SIRIUS SATELLITE RADIO INC.
Reconciliation and tie between Trust Indenture Act of 1939 (the "TIA") and
Indenture, dated as of September 15, 1999.
Trust Indenture Act Section Indenture Section
310(a)(1)......................................... 6.7
(b)(2)........................................ 6.7
(b)........................................... 6.7, 6.8
312(a)............................................ 7.4
312(c)............................................ 7.1
313(a)............................................ 7.2
(c)........................................... 7.2
314(a)............................................ 7.3
(a)(4)........................................ 10.9
(c)(1)........................................ 1.2
(c)(2)........................................ 1.2
(e)........................................... 1.2
315(b)............................................ 6.1
316(a) (last sentence)............................ 1.1 ("Outstanding")
(a)(1)(A)..................................... 5.12
(a)(1)(B)..................................... 5.13
(b)........................................... 5.8
317(a)(1)......................................... 5.3
(a)(2)........................................ 5.4
318(a)............................................ 1.11
(c).......................................... 1.11
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
Attention should also be directed to Section 318(c) of the TIA,
which provides that the provisions of Sections 310 through 317 of the TIA are
a part of and govern every qualified indenture, whether or not physically
contained in the Indenture.
