Exhibit 4.1
XXXXXX.XXX INDIA LIMITED
AND
CITIBANK, N.A.,
as Trustee
SENIOR INDENTURE
Dated as of ___________
TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS
Section 1.1 Certain Terms Defined.......................................................1
ARTICLE II SECURITIES
Section 2.1 Forms Generally.............................................................6
Section 2.2 Form of Trustee's Certificate of Authentication.............................7
Section 2.3 Amount Unlimited; Issuable in Series........................................8
Section 2.4 Authentication and Delivery of Securities..................................10
Section 2.5 Execution of Securities....................................................12
Section 2.6 Certificate of Authentication..............................................13
Section 2.7 Denomination and Date of Securities; Payments of Interest..................13
Section 2.8 Registration, Transfer and Exchange........................................14
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen Securities..................18
Section 2.10 Cancellation of Securities; Destruction Thereof............................18
Section 2.11 Temporary Securities.......................................................19
Section 2.12 CUSIP Numbers..............................................................19
ARTICLE III COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal, Premium, Interest and Additional Amounts.............20
Section 3.2 Offices for Payments, Etc..................................................20
Section 3.3 Money for Security Payments to be Held in Trust; Unclaimed Money...........21
Section 3.4 Statements of Officers of Issuer as to Default; Notice of Default..........22
Section 3.5 Existence..................................................................22
Section 3.6 Maintenance of Properties..................................................23
Section 3.7 Payment of Taxes and Other Claims..........................................23
Section 3.8 Further Instruments and Acts...............................................23
Section 3.9 Limitation on Liens........................................................23
Section 3.10 Commission Reports.........................................................23
Section 3.11 Calculation of Original Issue Discount.....................................24
ARTICLE IV SECURITYHOLDERS LISTS AND REPORTS BY THE
ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names and Addresses of
Securityholders............................................................24
Section 4.2 Preservation of Information; Communications to Holders.....................24
Section 4.3 Reports by the Trustee.....................................................24
Section 4.4 Payment of Additional Amounts..............................................25
Section 4.5 Redemption for Tax Purposes................................................26
ARTICLE V REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS
ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of Maturity; Waiver of Default......27
Section 5.2 Collection of Indebtedness by Trustee; Trustee May Prove Debt..............30
Section 5.3 Application of Proceeds....................................................32
Section 5.4 Suits for Enforcement......................................................33
Section 5.5 Restoration of Rights on Abandonment of Proceedings........................33
Section 5.6 Limitations on Suits by Securityholders....................................33
Section 5.7 Unconditional Right of Securityholders to Institute Certain Suits..........33
Section 5.8 Powers and Remedies Cumulative; Delay or Omission Not Waiver of Default....34
Section 5.9 Control by Holders of Securities...........................................34
Section 5.10 Waiver of Past Defaults....................................................34
Section 5.11 Trustee to Give Notice of Default, but May Withhold in Certain
Circumstances..............................................................35
Section 5.12 Right of Court to Require Filing of Undertaking to Pay Costs...............35
ARTICLE VI CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee; During Default;
Prior to Default...........................................................36
Section 6.2 Certain Rights of the Trustee..............................................37
Section 6.3 Trustee Not Responsible for Recitals, Disposition of Securities or
Application of Proceeds Thereof............................................39
Section 6.4 Trustee and Agents May Hold Securities or Coupons; Collections, Etc........39
Section 6.5 Moneys Held by Trustee.....................................................39
Section 6.6 Compensation and Indemnification of Trustee and its Prior Claim............39
Section 6.7 Right of Trustee to Rely on Officer's Certificate, Etc.....................40
Section 6.8 Indentures Not Creating Potential Conflicting Interests for the Trustee....40
Section 6.9 Persons Eligible for Appointment as Trustee................................40
Section 6.10 Resignation and Removal; Appointment of Successor Trustee..................41
Section 6.11 Acceptance of Appointment by Successor Trustee.............................42
Section 6.12 Merger, Amalgamation, Conversion, Consolidation or Succession to
Business of Trustee .......................................................43
Section 6.13 Preferential Collection of Claims Against the Issuer.......................44
Section 6.14 Appointment of Authenticating Agent........................................44
ARTICLE VII CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders................................45
Section 7.2 Proof of Execution of Instruments and of Holding of Securities.............45
Section 7.3 Holders to Be Treated as Owners............................................46
Section 7.4 Securities Owned by Issuer Deemed Not Outstanding..........................46
Section 7.5 Right of Revocation of Action Taken........................................47
ARTICLE VIII SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of Securityholders.................47
Section 8.2 Supplemental Indentures With Consent of Securityholders....................49
Section 8.3 Effect of Supplemental Indenture...........................................50
Section 8.4 Documents to Be Given to Trustee...........................................50
Section 8.5 Notation on Securities in Respect of Supplemental Indentures...............50
Section 8.6 Conformity with Trust Indenture Act of 1939................................50
ARTICLE IX CONSOLIDATION, MERGER, AMALGAMATION,
SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, Etc., Only on Certain Terms........................51
Section 9.2 Successor Substituted for the Issuer.......................................51
Section 9.3 Restrictions on Certain Dispositions.......................................51
ARTICLE X SATISFACTION AND DISCHARGE OF
INDENTURE; UNCLAIMED MONEYS
Section 10.1 Termination of Issuer's Obligations Under the Indenture....................52
Section 10.2 Application of Trust Funds.................................................53
Section 10.3 Applicability of Defeasance Provisions; Issuer's Option to
Effect Defeasance or Covenant Defeasance ..................................53
Section 10.4 Defeasance and Discharge...................................................54
Section 10.5 Covenant Defeasance........................................................54
Section 10.6 Conditions to Defeasance or Covenant Defeasance............................55
Section 10.7 Deposited Money and U.S. Government Obligations to be
Held in Trust..............................................................56
Section 10.8 Repayment to Issuer........................................................56
Section 10.9 Indemnity For U.S. Government Obligations..................................56
Section 10.10 Reimbursement..............................................................57
ARTICLE XI MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Shareholders, Officers and Directors of Issuer
Exempt from Individual Liability ..........................................57
Section 11.2 Provisions of Indenture for the Sole Benefit of Parties and
Holders of Securities and Coupons ........................................57
Section 11.3 Successors and Assigns of Issuer Bound by Indenture........................57
Section 11.4 Notices and Demands on Issuer, Trustee and Holders of Securities
and Coupons................................................................57
Section 11.5 Officer's Certificates and Opinions of Counsel; Statements to
Be Contained Therein.......................................................58
Section 11.6 Payments Due on Saturdays, Sundays and Holidays............................59
Section 11.7 Conflict of Any Provision of Indenture with Trust Indenture Act
of 1939....................................................................59
Section 11.8 New York Law to Govern; Waiver of Jury Trial...............................59
Section 11.9 Counterparts...............................................................59
Section 11.10 Effect of Headings.........................................................60
Section 11.11 Securities in a Foreign Currency or in ECU.................................60
Section 11.12 Judgment Currency..........................................................60
Section 11.13 Separability Clause........................................................61
Section 11.14 Force Majeure..............................................................61
Section 11.15 Submission to Jurisdiction.................................................61
ARTICLE XII REDEMPTION OF SECURITIES
AND SINKING FUNDS
Section 12.1 Applicability of Article...................................................62
Section 12.2 Notice of Redemption; Partial Redemptions..................................62
Section 12.3 Payment of Securities Called for Redemption................................63
Section 12.4 Exclusion of Certain Securities from Eligibility for Selection
for Redemption.............................................................64
Section 12.5 Mandatory and Optional Sinking Funds.......................................64
THIS INDENTURE, dated as of [ ], between XXXXXX.XXX INDIA
LIMITED, a limited liability company organized under the laws of the Republic
of India (the "Issuer"), and Citibank, N.A., a national banking association
organized under the laws of the United State of America, as trustee (the
"Trustee"),
W I T N E S S E T H:
WHEREAS, the Issuer has duly authorized the issue from time
to time of its unsecured debentures, notes or other evidences of indebtedness
to be issued in one or more series (the "Securities") up to such principal
amount or amounts as may from time to time be authorized in accordance with the
terms of this Indenture;
WHEREAS, the Issuer has duly authorized the execution and
delivery of this Indenture to provide, among other things, for the
authentication, delivery and administration of the Securities; and
WHEREAS, all things necessary to make this Indenture a valid
indenture and legally binding agreement according to its terms have been done;
NOW, THEREFORE:
In consideration of the premises and the purchases of the
Securities by the holders thereof, the Issuer and the Trustee mutually covenant
and agree for the equal and proportionate benefit of the respective holders
from time to time of the Securities and of the Coupons, if any, appertaining
thereto as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Certain Terms Defined. The following terms
(except as otherwise expressly provided or unless the context otherwise clearly
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section. All other
terms used in this Indenture that are defined in the Trust Indenture Act of
1939 or the definitions of which in the Securities Act of 1933 are referred to
in the Trust Indenture Act of 1939, including terms defined therein by
reference to the Securities Act of 1933 (except as herein otherwise expressly
provided or unless the context otherwise requires), shall have the meanings
assigned to such terms in said Trust Indenture Act of 1939 and in said
Securities Act as in force at the date of this Indenture. All accounting terms
used herein and not expressly defined shall have the meanings assigned to such
terms in accordance with generally accepted accounting principles, and the term
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" means such accounting principles as
are generally accepted at the time of any computation. 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. The terms defined in this Article have the meanings assigned to
them in this Article and include the plural as well as the singular.
"ADDITIONAL AMOUNTS" shall mean any additional amounts which
are required hereby or by any Security, under circumstances specified herein or
therein, to be paid by the Issuer, in respect of certain taxes, assessments or
other governmental charges imposed on Holders specified therein and which are
owing to such Holders.
"AUTHENTICATING AGENT" shall have the meaning set forth in
Section 6.14.
"AUTHORIZED NEWSPAPER" means a newspaper of general
circulation, in the official language of the country of publication or in the
English language customarily published on each Business Day whether or not
published on Saturdays, Sundays or holidays. Whenever successive publications
in an Authorized Newspaper are required hereunder they may be made (unless
otherwise expressly provided herein) on the same or different days of the week
and in the same or different Authorized Newspapers.
"BOARD OF DIRECTORS" means either the Board of Directors of
the Issuer or any committee of such Board duly authorized to act on its behalf.
"BOARD RESOLUTION" means a copy of one or more resolutions,
certified by the secretary or an assistant secretary of the Issuer to have been
duly adopted or consented to by the Board of Directors and to be in full force
and effect, and delivered to the Trustee.
"BUSINESS DAY" means, with respect to any Security, a day
that in the city (or in any of the cities, if more than one) in which amounts
are payable, as specified in the form of such Security, and in The City of New
York is not a day on which banking institutions are authorized or required by
law, executive order or regulation to close.
"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 the execution and delivery of this Indenture such
Commission is not existing and performing the duties now assigned to it under
the Trust Indenture Act of 1939, then the body performing such duties on such
date.
"CONSOLIDATED TOTAL ASSETS" means, in respect of the Issuer
as of any date of determination, the amount of total assets shown on the
consolidated balance sheet of the Issuer and its consolidated subsidiaries
contained in the most recent annual or quarterly report filed with the
Commission, or if the Issuer is not then subject to the Securities Exchange Act
of 1934, the most recent annual or quarterly report to shareholders and, in
respect of any Subsidiary as of any date of determination, the amount of total
assets of such Subsidiary and its consolidated subsidiaries from which such
consolidated balance sheet of the Issuer and its consolidated Subsidiaries was
derived.
"CORPORATE TRUST OFFICE" means the principal office of the
Trustee at which, at any time, its corporate trust business shall be
administered, which office at the date hereof is located at 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust
Administration, or such other address as the Trustee may designate from time to
time by notice to the Holders and the Issuer, or the principal corporate trust
office of any successor Trustee (or such other address as such successor
Trustee may designate from time to time by notice to the Holders and the
Issuer).
"COUPON" means any interest coupon appertaining to an
Unregistered Security.
"COVENANT DEFEASANCE" shall have the meaning set forth in
Section 10.5.
"DEFEASANCE" shall have the meaning set forth in Section
10.4.
"DEPOSITARY" means, with respect to the Securities of any
series issuable or issued in global form, the Person designated as Depositary
by the Issuer pursuant to Section 2.3 until a successor Depositary shall have
become such pursuant to the applicable provisions of this Indenture, and
thereafter "DEPOSITARY" shall mean or include each Person who is then a
Depositary hereunder, and if at any time there is more than one such Person,
"DEPOSITARY" as used with respect to the Securities of any such series shall
mean the Depositary with respect to the Registered Securities in global form of
that series.
"DOLLAR" means the coin or currency of the United States of
America as at the time of payment is legal tender for the payment of public and
private debts.
"ECU" means the Euro or such other European Currency Unit as
may defined and revised from time to time by the Council of European
Communities.
"EVENT OF DEFAULT" means any event or condition specified as
such in Section 5.1.
"FAIR VALUE" when used with respect to Voting Shares means
the fair value as determined in good faith by the Board of Directors of the
Issuer.
"FOREIGN CURRENCY" means a currency issued by the government
of a country other than the United States.
"HOLDER," "HOLDER OF SECURITIES," "SECURITYHOLDER" or other
similar terms mean (1) in the case of any Registered Security, the person in
whose name such Security is registered in the security register kept by the
Issuer for that purpose in accordance with the terms hereof, and (2) in the
case of any Unregistered Security, the bearer of such Security, or any Coupon
appertaining thereto, as the case may be.
"INDEBTEDNESS" shall have the meaning set forth in Section
5.1.
"INDENTURE" means this instrument as originally executed and
delivered or, if amended or supplemented as herein provided, as so amended or
supplemented or both, and shall include the forms and terms of particular
series of Securities established as contemplated hereunder.
"ISSUER" means Xxxxxx.xxx India Limited, limited liability
company organized under the laws of the Republic of India and, subject to
Article IX, its successors and assigns.
"ISSUER ORDER" means a written statement, request or order of
the Issuer signed in its name by the chairman or deputy chairman of the Board
of Directors, the president, any executive, senior or other vice president or
the treasurer of the Issuer.
"JUDGMENT CURRENCY" shall have the meaning set forth in
Section 11.12.
"OFFICER'S CERTIFICATE" means a certificate signed by the
chairman or deputy chairman of the Board of Directors, the president or any
executive, senior or other vice president or the treasurer of the Issuer and
delivered to the Trustee. Each such certificate shall comply with Section 314
of the Trust Indenture Act of 1939 and include the statements provided for in
Section 11.5.
"OPINION OF COUNSEL" means an opinion in writing signed by
the General Counsel of the Issuer or by such other legal counsel who may be an
employee of or counsel to the Issuer. Each such opinion shall comply with
Section 314 of the Trust Indenture Act of 1939 and include the statements
provided for in Section 11.5.
"ORIGINAL ISSUE DATE" of any Security (or portion thereof)
means the earlier of (1) the date of such Security or (2) the date of any
Security (or portion thereof) for which such Security was issued (directly or
indirectly) on registration of transfer, exchange or substitution.
"ORIGINAL ISSUE DISCOUNT SECURITY" means any Security that
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 5.1.
"OUTSTANDING" (except as otherwise provided in Sections 7.4,
10.4 and 10.5), when used with reference to Securities, shall, subject to the
provisions of Sections 7.4, 10.4 and 10.5 mean, as of any particular time, all
Securities authenticated and delivered by the Trustee under this Indenture,
except:
(1) Securities theretofore canceled by the Trustee or
accepted by the Trustee for cancellation;
(2) Securities, or portions thereof, for the payment or
redemption of which moneys or U.S. Government Obligations (as provided
for in Section 10.1) in the necessary amount shall have been deposited
in trust with the Trustee or with any paying agent (other than the
Issuer) or shall have been set aside, segregated and held in trust by
the Issuer for the Holders of such Securities (if the Issuer shall act
as its own paying agent), provided that if such Securities, or
portions thereof, are to be redeemed prior to the maturity thereof,
notice of such redemption shall have been given as herein provided, or
provision satisfactory to the Trustee shall have been made for giving
such notice; and
(3) Securities which shall have been paid or in substitution
for which other Securities shall have been authenticated and delivered
pursuant to the terms of Section 2.9 (except with respect to any such
Security as to which proof satisfactory to the Trustee is presented
that such Security is held by a person in whose hands such Security is
a legal, valid and binding obligation of the Issuer) or Securities not
deemed outstanding pursuant to Section 12.2.
In determining whether the Holders of the requisite principal
amount of Outstanding Securities of any or all series have given any request,
demand, authorization, direction, notice, consent or waiver hereunder, the
principal amount of an Original Issue Discount Security that shall be deemed to
be Outstanding for such purposes shall be the amount of the principal thereof
that would be due and payable as of the date of such determination upon a
declaration of acceleration of the maturity thereof pursuant to Section 5.1.
"PERIODIC OFFERING" means an offering of Securities of a
series from time to time, the specific terms of which Securities, including,
without limitation, the rate or rates of interest, if any, thereon, the stated
maturity or maturities thereof and the redemption provisions, if any, with
respect thereto, are to be determined by the Issuer or its agents upon the
issuance of such Securities.
"PERMITTED LIENS" means liens for taxes or assessments or
governmental charges or levies not then due and delinquent or the validity of
which is being contested in good faith or which are less than $1,000,000 in
amount and liens created by or resulting from any litigation or legal
proceeding which is currently being contested in good faith by appropriate
proceedings or which involves claims of less than $1,000,000.
"PERSON" means a legal person, including any individual,
company, limited liability company, corporation, estate, partnership, limited
liability partnership, joint venture, association, joint shares company, trust,
unincorporated organization or government or any agency or political
subdivision thereof or any other entity of whatever nature.
"PRINCIPAL" whenever used with reference to the Securities or
any Security or any portion thereof, shall be deemed to include "and premium,
if any."
"RECORD DATE" shall have the meaning set forth in Section
2.7.
"REGISTERED SECURITY" means any Security registered on the
Security register of the Issuer.
"REQUIRED CURRENCY" shall have the meaning set forth in
Section 11.12.
"RESPONSIBLE OFFICER" when used with respect to the Trustee
means any vice president, any senior trust officer or any trust officer, any
assistant vice president, any assistant treasurer, or any other officer or
assistant officer associated with [the corporate trust department] of the
Trustee customarily performing functions similar to those performed by the
persons who at the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of his or her knowledge of and
familiarity with the particular subject and who shall have direct
responsibility for the administration of this Indenture.
"RESTRICTED SUBSIDIARY" means (1) [ ]; (2) any other future
or present Subsidiary the Consolidated Total Assets of which constitute [ ]
percent or more of the Consolidated Total Assets of the Issuer; and (3) any
Subsidiary which is a successor, by merger or otherwise, to substantially all
of the business or properties of any Subsidiary referred to or described in the
foregoing clauses (1) or (2).
"SECURITY" or "SECURITIES" has the meaning stated in the
first recital of this Indenture, or, as the case may be, Securities that have
been authenticated and delivered under this Indenture.
"SUBSIDIARY" means any corporation, partnership or other
entity of which at the time of determination the Issuer owns or controls
directly or indirectly more than 50% of the shares of Voting Shares.
"TRUST INDENTURE ACT OF 1939" (except as otherwise provided
in Sections 8.1 and 8.2) means the Trust Indenture Act of 1939 as in force at
the date as of which this Indenture was originally executed.
"TRUSTEE" means the Person identified as "Trustee" in the
first paragraph hereof and, subject to the provisions of Article VI, shall also
include any successor trustee. "Trustee" shall also mean or include each Person
who is then a trustee hereunder and if at any time there is more than one such
Person, "Trustee" as used with respect to the Securities of any series shall
mean the trustee with respect to the Securities of such series.
"UNREGISTERED SECURITY" means any Security other than a
Registered Security.
"U.S. GOVERNMENT OBLIGATIONS" means securities which are (1)
direct obligations of the United States of America for the payment of which its
full faith and credit is pledged or (2) obligations of a Person controlled or
supervised by and acting as an agency or instrumentality of the United States
of America the timely payment of which is unconditionally guaranteed by the
full faith and credit of the United States of America which, in either case,
are not callable or redeemable at the option of the issuer thereof or otherwise
subject to prepayment, and shall also include a depository receipt issued by a
New York Clearing House bank or trust company as custodian with respect to any
such U.S. Government Obligation or a specific payment or interest on or
principal of any such U.S. 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 or from any amount
held by the custodian in respect of the U.S. Government Obligation or the
specific payment of interest on or principal of the U.S. Government Obligation
evidenced by such depository receipt.
"VOTING SHARES" means shares of any class or classes having
general voting power under ordinary circumstances to elect a majority of the
board of directors, managers or trustees of the corporation in question,
provided that, for the purposes hereof, shares which carry only the right to
vote conditionally on the happening of an event shall not be considered voting
shares whether or not such event shall have happened.
"YIELD TO MATURITY" means the yield to maturity on a series
of securities, calculated at the time of issuance of such series, or, if
applicable, at the most recent redetermination of interest on such series, and
calculated in accordance with accepted financial practice.
ARTICLE II
SECURITIES
Section 2.1 Forms Generally. The Securities of each series
and the Coupons, if any, to be attached thereto shall be substantially in such
form (not inconsistent with this Indenture) as shall be established by or
pursuant to one or more Board Resolutions (as set forth in a Board Resolution
or, to the extent established pursuant to rather than set forth in a Board
Resolution, an Officer's Certificate detailing such establishment) or in one or
more indentures supplemental hereto, in each case with such appropriate
insertions, omissions, substitutions and other variations as are required or
permitted by this Indenture and may have imprinted or otherwise reproduced
thereon such legend or legends or endorsements, not inconsistent with the
provisions of this Indenture, as may be required to comply with any law or with
any rules or regulations pursuant thereto, or with any rules of any securities
exchange or to conform to general usage, all as may be determined by the
officers executing such Securities and Coupons, if any, as evidenced by their
execution of such Securities and Coupons. If temporary Securities of any series
are issued as permitted by Section 2.11, the form thereof also shall be
established as provided in the preceding sentence. If the forms of Securities
and Coupons, if any, of the series are established by, or by action taken
pursuant to, a Board Resolution, a copy of the Board Resolution together with
an appropriate record of any such action taken pursuant thereto, including a
copy of the approved form of Securities or Coupons, if any, shall be certified
by the [Secretary] or an [Assistant Secretary] of the Issuer and delivered to
the Trustee at or prior to the delivery of the Issuer Order contemplated by
Section 2.4 for the authentication and delivery of such Securities.
The definitive Securities and Coupons, if any, shall be
printed, lithographed or engraved on steel engraved borders or may be produced
in any other manner, all as determined by the officers executing such
Securities and Coupons, if any, as evidenced by their execution of such
Securities and Coupons, if any.
Section 2.2 Form of Trustee's Certificate of Authentication.
The Trustee's certificate of authentication on all Securities shall be in
substantially the following form:
"This is one of the Securities referred to in the within mentioned
Indenture.
___________________________________
By ________________________________
Authorized Signatory"
If at any time there shall be an Authenticating Agent
appointed with respect to any series of Securities, then the Trustee's
Certificate of Authentication to be borne by the Securities of each such series
shall be substantially as follows:
"This is one of the Securities referred to in the within mentioned
Indenture.
____________________________________
By _________________________________
as Authenticating Agent"
____________________________________
By _________________________________
Authorized Signatory"
Section 2.3 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 and each such series shall rank equally and pari passu with
all other unsecured and unsubordinated debt of the Issuer. There shall be
established in or pursuant to one or more Board Resolutions (and to the extent
established pursuant to rather than set forth in a Board Resolution, in an
Officer's Certificate detailing such establishment) or established in one or
more indentures supplemental hereto, prior to the initial issuance of
Securities of any series,
(1) the designation of the Securities of the series,
which shall distinguish the Securities of the series from the Securities of all
other series;
(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 2.8, 2.9, 2.11, 8.5 or 12.3);
(3) if other than Dollars, the coin or currency in
which the Securities of that series are denominated (including, but not limited
to, any Foreign Currency or ECU);
(4) the date or dates on which the principal of the
Securities of the series is payable;
(5) the rate or rates at which the Securities of the
series shall bear interest, if any, the date or dates from which such interest
shall accrue, on which such interest shall be payable and (in the case of
Registered Securities) on which a record shall be taken for the determination
of Holders to whom interest is payable and/or the method by which such rate or
rates or date or dates shall be determined;
(6) the place or places where the principal of and any
interest on Securities of the series shall be payable (if other than as
provided in Section 3.2);
(7) the right, if any, of the Issuer to redeem
Securities, in whole or in part, at its option and the period or periods within
which, the price or prices at which and any terms and conditions upon which
Securities of the series may be so redeemed, pursuant to any sinking fund or
otherwise;
(8) the obligation, if any, of the Issuer to redeem,
purchase or repay Securities of the series pursuant to any mandatory
redemption, sinking fund or analogous provisions or at the option of a Holder
thereof and the price or prices at which and the period or periods within which
and any terms and conditions upon which Securities of the series shall be
redeemed, purchased or repaid, in whole or in part, pursuant to such
obligation;
(9) if other than denominations of $1,000 and any
integral multiple thereof in the case of Registered Securities, or $1,000 and
$5,000 in the case of Unregistered Securities, the denominations in which
Securities of the series shall be issuable;
(10) if other than the principal amount thereof, the
portion of the principal amount of Securities of the series which shall be
payable upon declaration of acceleration of the maturity thereof;
(11) if other than the coin or currency in which the
Securities of that series are denominated, the coin or currency in which
payment of the principal of or interest on the Securities of such series shall
be payable;
(12) if the principal of or interest on the Securities
of such series are to be payable, at the election of the Issuer or a Holder
thereof, in a coin or currency other than that in which the Securities are
denominated, the period or periods within which, and the terms and conditions
upon which, such election may be made;
(13) if the amount of payments of principal of and
interest on the Securities of the series may be determined with reference to an
index based on a coin or currency other than that in which the Securities of
the series are denominated, the manner in which such amounts shall be
determined;
(14) whether the Securities of the series will be
issuable as Registered Securities or Unregistered Securities (with or without
Coupons), and whether such Securities will be issuable in global form or any
combination of the foregoing, any restrictions applicable to the offer, sale or
delivery of Unregistered Securities or the payment of interest thereon and, if
other than as provided in Section 2.8, the terms upon and locations at which
Unregistered Securities of any series may be exchanged for Registered
Securities of such series and vice versa;
(15) whether and under what circumstances the Issuer
will pay Additional Amounts on the Securities of the series held by a person in
respect of any tax, assessment or governmental charge withheld or deducted and,
if so, whether the Issuer will have the option to redeem such Securities rather
than pay such Additional Amounts;
(16) 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, the form and terms of such
certificates, documents or conditions;
(17) any Trustees, Depositaries, Authenticating Agents,
paying or transfer Agents or Registrars or any other agents with respect to the
Securities of such series;
(18) any deletions from, modifications of or additions
to the Events of Default or covenants with respect to the Securities of such
series;
(19) provisions, if any, granting special rights to the
Holders of Securities of the series upon the occurrence of such events as may
be specified;
(20) the date as of which any Unregistered Securities
of the series and any temporary Security in global form 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;
(21) the applicability, if any, to the Securities of or
within the series of Article X, or such other means of Defeasance or Covenant
Defeasance as may be specified for the Securities and Coupons, if any, of such
series;
(22) if the Securities of the series shall be issued in
whole or in part in global form (a) the Depositary for such global Securities,
(b) the form of any legend in addition to or in lieu of that in Section 2.4
which shall be borne by such global security, (c) whether beneficial owners of
interests in any Securities of the series in global form may exchange such
interests for certificated Securities of such series and of like tenor of any
authorized form and denomination, and (d) if other than as provided in Section
2.8, the circumstances under which any such exchange may occur;
(23) the right of the Issuer, if any, to defer any
payment of principal of or interest on the Securities of the series, or any
tranche thereof, and the maximum length of any such deferral period; and
(24) any other terms of the series (which terms shall
not be inconsistent with the provisions of this Indenture).
All Securities of any one series and Coupons, if any,
appertaining thereto, shall be substantially identical, except in the case of
Registered Securities as to denomination and except as may otherwise be
provided by or pursuant to the Board Resolution or Officer's Certificate
referred to above or as set forth in any such indenture supplemental hereto.
All Securities of any one series need not be issued at the same time and may
pursuant to the Board Resolution or Officer's Certificate be issued from time
to time, consistent with the terms of this Indenture, if so provided by or
pursuant to such Board Resolution, such Officer's Certificate or in any such
indenture supplemental hereto.
Section 2.4 Authentication and Delivery of Securities.
(1) The Issuer may deliver Securities of any series
having attached thereto appropriate Coupons, if any, executed by the Issuer to
the Trustee for authentication together with the applicable documents referred
to below in this Section, and the Trustee shall thereupon authenticate and
deliver such Securities to or upon the order of the Issuer (contained in the
Issuer Order referred to below in this Section) or pursuant to such procedures
acceptable to the Trustee and to such recipients as may be specified from time
to time by an Issuer Order. The maturity date, original issue date, interest
rate and any other terms of the Securities of such series and Coupons, if any,
appertaining thereto shall be determined by or pursuant to such Issuer Order
and procedures. In authenticating such Securities and accepting the additional
responsibilities under this Indenture in relation to such Securities, the
Trustee shall receive and (subject to Section 6.1) shall be fully protected in
relying upon, unless and until such documents have been superseded or revoked:
(a) an Issuer Order requesting such
authentication and setting forth delivery instructions if the
Securities and Coupons, if any, are not to be delivered to the Issuer,
provided that, with respect to Securities of a series subject to a
Periodic Offering, (i) such Issuer Order may be delivered by the
Issuer to the Trustee prior to the delivery to the Trustee of such
Securities for authentication and delivery, (ii) the Trustee shall
authenticate and deliver Securities of such series for original issue
from time to time, in an aggregate principal amount not exceeding the
aggregate principal amount established for such series, pursuant to an
Issuer Order or pursuant to procedures acceptable to the Trustee as
may be specified from time to time by an Issuer Order and (iii) the
maturity date or dates, original issue date or dates, interest rate or
rates and any other terms of Securities of such series shall be
determined by an Issuer Order or pursuant to such procedures;
(b) any Board Resolution, Officer's Certificate
and/or executed supplemental indenture referred to in Sections 2.1 and
2.3 by or pursuant to which the forms and terms of the Securities and
Coupons, if any, were established;
(c) an Officer's Certificate setting forth the
form or forms and terms of the Securities and Coupons, if any, stating
that the form or forms and terms of the Securities and Coupons, if
any, have been established pursuant to Sections 2.1 and 2.3 and comply
with this Indenture, and covering such other matters as the Trustee
may reasonably request; and
(d) at the option of the Issuer, either one or
more Opinions of Counsel, or a letter addressed to the Trustee
permitting it to conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, on one or more
Opinions of Counsel, substantially to the effect that:
(i) the forms of the Securities and
Coupons, if any, have been duly authorized and established in
conformity with the provisions of this Indenture;
(ii) in the case of an underwritten
offering, the terms of the Securities have been duly
authorized and established in conformity with the provisions
of this Indenture, and, in the case of an offering that is
not underwritten, certain terms of the Securities have been
established pursuant to a Board Resolution, an Officer's
Certificate or a supplemental indenture in accordance with
this Indenture, and when such other terms as are to be
established pursuant to procedures set forth in an Issuer
Order shall have been established, all such terms will have
been duly authorized by the Issuer and will have been
established in conformity with the provisions of this
Indenture;
(iii) when the Securities and Coupons, if
any, have been executed by the Issuer and authenticated by
the Trustee in accordance with the provisions of this
Indenture and delivered to and duly paid for by the
purchasers thereof, they will have been duly issued under
this Indenture, will be entitled to the benefits of this
Indenture, and will be valid and binding obligations of the
Issuer, enforceable in accordance with their respective terms
except as (i) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors'
rights generally and (ii) rights of acceleration, if any, and
the availability of equitable remedies may be limited by
equitable principles of general applicability; and
(iv) that all applicable laws and
requirements in respect of the execution and delivery by the
Issuer of such Securities have been complied with.
In rendering such opinions, any counsel may qualify any
opinions as to enforceability by stating that such enforceability may be
limited by bankruptcy, insolvency, reorganization, liquidation, moratorium and
other similar laws affecting the rights and remedies of creditors and is
subject to general principles of equity (regardless of whether such
enforceability is considered in a proceeding in equity or at law). Such counsel
may rely upon opinions of other counsel (copies of which shall be delivered to
the Trustee), who shall be counsel reasonably satisfactory to the Trustee, in
which case the opinion shall state that such counsel believes he or she and the
Trustee are entitled so to rely. Such counsel may also state that, insofar as
such opinion involves factual matters, he or she has relied, to the extent he
or she deems proper, upon certificates of officers of the Issuer and its
subsidiaries and certificates of public officials.
(2) The Trustee shall have the right to decline to
authenticate and deliver any Securities under this Section if the Trustee,
being advised by counsel, determines that such action may not lawfully be taken
by the Issuer or if the Trustee in good faith by its board of directors or
board of trustees, executive committee, or a trust committee of directors or
trustees or Responsible Officers shall determine that such action would expose
the Trustee to personal liability to existing Holders or would affect the
Trustee's own rights, duties or immunities under the Securities, this Indenture
or otherwise.
(3) If the Issuer shall establish pursuant to Section
2.3 that the Securities of a series are to be issued in whole or in part in
global form, then the Issuer shall execute and the Trustee shall, in accordance
with this Section and the Issuer Order with respect to such series,
authenticate and deliver one or more Securities in global form that (a) shall
represent and shall be denominated in an amount equal to the aggregate
principal amount of all of the Securities of such series issued and not yet
canceled, (b) if such Securities are Registered Securities, shall be registered
in the name of the Depositary for such Security or Securities in global form or
the nominee of such Depositary, (c) if such Securities are Registered
Securities, shall be delivered by the Trustee to such Depositary or pursuant to
such Depositary's instructions and (d) shall bear a legend substantially to the
following effect: "Unless and until it is exchanged in whole or in part for
Securities in definitive form, this Security may not be transferred except as a
whole by the Depositary to the nominee of the Depositary or by a nominee of the
Depositary to the Depositary or another nominee of the Depositary or by the
Depositary or any such nominee to a successor Depositary or a nominee of such
successor Depositary."
(4) Each Depositary designated pursuant to Section 2.3
must, at the time of its designation and at all times while it serves as
Depositary, be a clearing agency registered under the Securities Exchange Act
of 1934 and any other applicable statute or regulation.
Section 2.5 Execution of Securities. The Securities and, if
applicable, each Coupon appertaining thereto shall be signed on behalf of the
Issuer by the [chairman] or [deputy chairman] of its Board of Directors or its
president or any executive, senior or other vice president or its treasurer,
which may, but need not, be attested. Such signatures may be the manual or
facsimile signatures of the present or any future such officers. Typographical
and other minor errors or defects in any such signature shall not affect the
validity or enforceability of any Security that has been duly authenticated and
delivered by the Trustee.
In case any officer of the Issuer who shall have signed any
of the Securities or Coupons, if any, shall cease to be such officer before the
Security or Coupon so signed (or the Security to which the Coupon so signed
appertains) shall be authenticated and delivered by the Trustee or disposed of
by the Issuer, such Security or Coupon nevertheless may be authenticated and
delivered or disposed of as though the person who signed such Security or
Coupon had not ceased to be such officer of the Issuer; and any Security or
Coupon may be signed on behalf of the Issuer by such persons as, at the actual
date of the execution of such Security or Coupon, shall be the proper officers
of the Issuer, although at the date of the execution and delivery of this
Indenture any such person was not such an officer.
Section 2.6 Certificate of Authentication. Only such
Securities as shall bear thereon a certificate of authentication substantially
in the form herein before recited, executed by the Trustee by the manual
signature of one of its authorized signatories, shall be entitled to the
benefits of this Indenture or be valid or obligatory for any purpose. No Coupon
shall be entitled to the benefits of this Indenture or shall be valid and
obligatory for any purpose until the certificate of authentication on the
Security to which such Coupon appertains shall have been duly executed by the
Trustee. The execution of such certificate by the Trustee upon any Security
executed by the Issuer shall be conclusive evidence that the Security so
authenticated has been duly authenticated and delivered hereunder and that the
Holder is entitled to the benefits of this Indenture.
Section 2.7 Denomination and Date of Securities; Payments of
Interest. The Securities of each series shall be issuable as Registered
Securities or Unregistered Securities in denominations established as
contemplated by Section 2.3 or, with respect to the Registered Securities of
any series, if not so established, in denominations of $1,000 and any integral
multiple thereof. If denominations of Unregistered Securities of any series are
not so established, such Securities shall be issuable in denominations of
$1,000 and $5,000. The Securities of each series shall be numbered, lettered or
otherwise distinguished in such manner or in accordance with such plan as the
officers of the Issuer executing the same may determine with the approval of
the Trustee, as evidenced by the execution and authentication thereof. Each
Registered Security shall be dated the date of its authentication. Each
Unregistered Security shall be dated as provided in the resolution or
resolutions of the Board of Directors of the Issuer referred to in Section 2.3.
The Securities of each series shall bear interest, if any, from the date, and
such interest shall be payable on the dates, established as contemplated by
Section 2.3.
The person in whose name any Registered Security of any
series is registered at the close of business on any record date applicable to
a particular series with respect to any interest payment date for such series
shall be entitled to receive the interest, if any, payable on such interest
payment date notwithstanding any transfer or exchange of such Registered
Security subsequent to the record date and prior to such interest payment date,
except if and to the extent the Issuer shall default in the payment of the
interest due on such interest payment date for such series, in which case such
defaulted interest shall be paid to the persons in whose names Outstanding
Registered Securities for such series are registered at the close of business
on a subsequent record date (which shall be not less than five Business Days
prior to the date of payment of such defaulted interest) established by notice
given by mail by or on behalf of the Issuer to the Holders of Registered
Securities not less than 15 days preceding such subsequent record date, as
determined by the Trustee. The term "record date" as used with respect to any
interest payment date (except a date for payment of defaulted interest) for the
Securities of any series shall mean the date specified as such in the terms of
the Registered Securities of such series established as contemplated by Section
2.3, or, if no such date is so established, if such interest payment date is
the first day of a calendar month, the fifteenth day of the next preceding
calendar month or, if such interest payment date is the fifteenth day of a
calendar month, the first day of such calendar month, whether or not such
record date is a Business Day.
Section 2.8 Registration, Transfer and Exchange(1) The Issuer
will keep at each office or agency to be maintained for the purpose as provided
in Section 3.2 for each series of Securities a register or registers in which,
subject to such reasonable regulations as it may prescribe, it will provide for
the registration of Registered Securities of such series and the registration
of transfer of Registered Securities of such series. Such register shall be in
written form in the English language. At all reasonable times such register or
registers shall be open for inspection by the Trustee.
(2) Subject to the prior written consent of the Reserve
Bank India, where applicable, upon due presentation for registration of
transfer of any Registered Security of any series at any such office or agency
to be maintained for the purpose as provided in Section 3.2, the Issuer shall
execute and the Trustee shall authenticate and deliver in the name of the
transferee or transferees a new Registered Security or Registered Securities of
the same series, maturity date, interest rate and original issue date in
authorized denominations for a like aggregate principal amount.
Unregistered Securities (except for any temporary
Unregistered Securities in global form) and Coupons (except for Coupons
attached to any temporary Unregistered Securities in global form) shall be
transferable by delivery.
(3) (a) Subject to the compliance with the applicable
regulations of the Reserve Bank of India, at the option of the Holder thereof,
Registered Securities of any series (other than a Registered Security in global
form, except as set forth below) may be exchanged for a Registered Security or
Registered Securities of such series having authorized denominations and an
equal aggregate principal amount, upon surrender of such Registered Securities
to be exchanged at the agency of the Issuer that shall be maintained for such
purpose in accordance with Section 3.2 and upon payment, if the Issuer shall so
require, of the charges hereinafter provided. Whenever any Registered
Securities are so surrendered for exchange, the Issuer shall execute, and the
Trustee shall authenticate and deliver, the Registered Securities which the
Holder making the exchange is entitled to receive.
(b) Unless otherwise specified as contemplated by
Section 2.3, at the option of the Holder, Unregistered Securities of
such series may be exchanged for Registered Securities (if the
Securities of such series are issuable in registered form) or
Unregistered Securities (if Unregistered Securities of such series are
issuable in more than one denomination and such exchanges are
permitted by such series) of the same series, of any authorized
denominations and of like tenor and aggregate principal amount, upon
surrender of the Securities to be exchanged at the agency of the
Issuer that shall be maintained for such purpose in accordance with
Section 3.2, with all unmatured Coupons and all matured Coupons in
default thereto appertaining. If the Holder of an Unregistered
Security is unable to produce any such unmatured Coupon or Coupons or
matured Coupon or Coupons in default, such exchange may be effected if
the Unregistered Securities are accompanied by payment in funds
acceptable to the Issuer and the Trustee 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 Issuer 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 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 as provided in Section 3.2. Notwithstanding
the foregoing, in case any Unregistered Security of any series is
surrendered at any such office or agency in exchange for a Registered
Security of the same series after the close of business at such office
or agency on (i) any 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 for payment of defaulted interest and before
the opening of business at such office or agency on the related date
for payment of defaulted interest, such Unregistered Security shall be
surrendered without the Coupon relating to such interest or defaulted
interest payment date or proposed date of payment, as the case may be
(or, if such Coupon is so surrendered with such Unregistered Security,
such Coupon shall be returned to the person so surrendering the
Unregistered Security), and interest or defaulted interest, as the
case may be, will not be payable on such date or proposed date for
payment, as the case may be, in respect of the Registered Security
issued in exchange for such Unregistered Security, but will be payable
only to the Holder of such Coupon, when due in accordance with the
provisions of this Indenture.
(c) Registered Securities of any series may not
be exchanged for Unregistered Securities of such series unless (i)
otherwise specified pursuant to Section 2.3 and (ii) the Issuer has
delivered to the Trustee an Opinion of Counsel that (A) the Issuer has
received from the Internal Revenue Service a ruling or (B) since the
date hereof, there has been a change in the applicable Federal income
tax law, in either case to the effect that the inclusion of terms
permitting Registered Securities to be exchanged for Unregistered
Securities would result in no adverse Federal income tax effect to the
Issuer or to any Holder. Whenever any Securities are so surrendered
for exchange, the Issuer shall execute, and the Trustee shall
authenticate and deliver, the Securities which the Holder making the
exchange is entitled to receive. All Securities and Coupons
surrendered upon any exchange or transfer provided for in this
Indenture shall be canceled promptly and disposed of by the Trustee in
accordance with its procedures for the disposition of cancelled
securities in effect as of the date of such cancellation and the
Trustee will deliver a certificate of disposition thereof to the
Issuer.
(4) All Registered Securities presented for
registration of transfer, exchange, redemption or payment shall (if so required
by the Issuer or the Trustee) be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Issuer and the Trustee duly executed by the Holder or his or her attorney duly
authorized in writing.
The Issuer may require payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in connection
with any exchange or registration of transfer of Securities. No service charge
shall be made for any such transaction.
The Issuer shall not be required to exchange or
register a transfer of (a) any Securities of any series for a period of 15 days
next preceding the first mailing of notice of redemption of Securities of such
series to be redeemed or (b) any Securities selected, called or being called
for redemption, in whole or in part, except, in the case of any Security to be
redeemed in part, the portion thereof not so to be redeemed.
(5) Notwithstanding any other provision of this Section
2.8, unless and until it is exchanged in whole or in part for Securities in
definitive registered form, a Registered Security in global form representing
all or a portion of the Securities of a series may not be transferred except as
a whole by the Depositary for such series to a nominee of such Depositary or by
a nominee of such Depositary to such Depositary or another nominee of such
Depositary or by such Depositary or any such nominee to a successor Depositary
for such series or a nominee of such successor Depositary.
If at any time the Depositary for any Registered
Securities of a series represented by one or more Registered Securities in
global form notifies the Issuer that it is unwilling or unable to continue as
Depositary for such Registered Securities or if at any time the Depositary for
such Registered Securities shall no longer be eligible under Section 2.4, the
Issuer shall appoint a successor Depositary eligible under Section 2.4 with
respect to such Registered Securities. If a successor Depositary eligible under
Section 2.4 for such Registered Securities is not appointed by the Issuer
within 90 days after the Issuer receives such notice or becomes aware of such
ineligibility, the Issuer's election pursuant to Section 2.3 that such
Registered Securities be represented by one or more Registered Securities in
global form shall no longer be effective and the Issuer will execute, and the
Trustee, upon receipt of an Officer's Certificate for the authentication and
delivery of definitive Securities of such series, will authenticate and
deliver, Securities of such series in definitive registered form without
Coupons, in any authorized denominations, in an aggregate principal amount
equal to the principal amount of the Registered Security or Securities in
global form representing such Registered Securities in exchange for such
Registered Security or Securities in global form.
The Issuer may at any time and in its sole discretion
determine that the Registered Securities of any series issued in the form of
one or more Registered Securities in global form shall no longer be represented
by a Registered Security or Securities in global form. In such event the Issuer
will execute, and the Trustee, upon receipt of an Officer's Certificate for the
authentication and delivery of definitive Securities of such series, will
authenticate and deliver, Securities of such series in definitive registered
form without Coupons, in any authorized denominations, in an aggregate
principal amount equal to the principal amount of the Registered Security or
Securities in global form representing such Registered Securities, in exchange
for such Registered Security or Securities in global form.
If specified by the Issuer pursuant to Section 2.3 with
respect to Securities represented by a Registered Security in global form, the
Depositary for such Registered Security in global form may surrender such
Registered Security in global form in exchange in whole or in part for
Registered Securities of the same series in definitive form on such terms as
are acceptable to the Issuer and such Depositary. Thereupon, the Issuer shall
execute, and the Trustee shall authenticate and deliver, without service
charge,
(a) to the Person specified by such Depositary a
new Registered Security or Securities of the same series, of any
authorized denominations as requested by such Person, in an aggregate
principal amount equal to and in exchange for such Person's beneficial
interest in the Registered Security in global form; and
(b) to such Depositary a new Registered Security
in global form in a denomination equal to the difference, if any,
between the principal amount of the surrendered Registered Security in
global form and the aggregate principal amount of Registered
Securities authenticated and delivered pursuant to clause (a) above.
Upon the exchange of a Registered Security in global
form for Registered Securities in definitive form without Coupons, in
authorized denominations, such Registered Security in global form shall be
canceled by the Trustee or an agent of the Issuer or the Trustee. Registered
Securities in definitive form issued in exchange for a Registered Security in
global form pursuant to this Section 2.8 shall be registered in such names and
in such authorized denominations as the Depositary for such Registered Security
in global form, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee or an agent of the Issuer
or the Trustee. The Trustee or such agent shall deliver such Securities to or
as directed by the Persons in whose names such Securities are so registered.
(6) All Securities issued upon any transfer or exchange
of Securities shall be valid obligations of the Issuer, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Securities
surrendered upon such transfer or exchange.
(7) Notwithstanding anything herein or in the terms of
any series of Securities to the contrary, none of the Issuer, the Trustee or
any agent of the Issuer or the Trustee (any of which, other than the Issuer,
shall conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, on an Officer's Certificate and an Opinion
of Counsel) shall be required to exchange any Unregistered Security for a
Registered Security if such exchange would result in adverse income tax
consequences to the Issuer.
(8) The Trustee shall have no obligation or duty to
monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers between
or among depositary participants or beneficial owners of interests in any
Global Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and
when expressly required by the terms of, this Indenture, and to examine the
same to determine substantial compliance as to form with the express
requirements hereof.
Section 2.9 Mutilated, Defaced, Destroyed, Lost and Stolen
Securities. In case any Security or any Coupon appertaining to any Security
shall become mutilated, defaced or be destroyed, lost or stolen, the Issuer in
its discretion may execute, and upon the written request of any officer of the
Issuer, the Trustee shall authenticate and deliver a new Security of the same
series, maturity date, interest rate and original issue date, bearing a number
or other distinguishing symbol not contemporaneously outstanding, in exchange
and substitution for the mutilated or defaced Security, or in lieu of and in
substitution for the Security so destroyed, lost or stolen with Coupons
corresponding to the Coupons appertaining to the Securities so mutilated,
defaced, destroyed, lost or stolen, or in exchange or substitution for the
Security to which such mutilated, defaced, destroyed, lost or stolen Coupon
appertained, with Coupons appertaining thereto corresponding to the Coupons so
mutilated, defaced, destroyed, lost or stolen. In every case the applicant for
a substitute Security or Coupon shall furnish to the Issuer and to the Trustee
and any agent of the Issuer or the Trustee such security or indemnity
satisfactory to them to indemnify and defend and to save each of them harmless
and, in every case of destruction, loss or theft, evidence to their
satisfaction of the destruction, loss or theft of such Security or Coupon and
of the ownership thereof and in the case of mutilation or defacement shall
surrender the Security and related Coupons to the Trustee or such agent.
Upon the issuance of any substitute Security or Coupon, the
Issuer 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) or its agent
connected therewith. In case any Security or Coupon which has matured or is
about to mature or has been called for redemption in full shall become
mutilated or defaced or be destroyed, lost or stolen, the Issuer may instead of
issuing a substitute Security, pay or authorize the payment of the same or the
relevant Coupon (without surrender thereof except in the case of a mutilated or
defaced Security or Coupon), if the applicant for such payment shall furnish to
the Issuer and to the Trustee and any agent of the Issuer or the Trustee such
security or indemnity satisfactory to them to save each of them harmless, and,
in every case of destruction, loss or theft, the applicant shall also furnish
to the Issuer and the Trustee and any agent of the Issuer or the Trustee
evidence to their satisfaction of the destruction, loss or theft of such
Security or Coupon and of the ownership thereof.
Every substitute Security or Coupon of any series issued
pursuant to the provisions of this Section by virtue of the fact that any such
Security or Coupon is destroyed, lost or stolen shall constitute an additional
contractual obligation of the Issuer, whether or not the destroyed, lost or
stolen Security or Coupon shall be at any time enforceable by anyone and shall
be entitled to all the benefits of (but shall be subject to all the limitations
of rights set forth in) this Indenture equally and proportionately with any and
all other Securities or Coupons of such series duly authenticated and delivered
hereunder. All Securities and Coupons shall be held and owned upon the express
condition that, to the extent permitted by law, the foregoing provisions are
exclusive with respect to the replacement or payment of mutilated, defaced or
destroyed, lost or stolen Securities and Coupons and shall preclude any and all
other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment of
negotiable instruments or other securities without their surrender.
Section 2.10 Cancellation of Securities; Destruction Thereof.
All Securities and Coupons surrendered for payment, redemption, registration of
transfer or exchange, or for credit against any payment in respect of a sinking
or analogous fund, if surrendered to the Issuer or any agent of the Issuer or
the Trustee or any agent of the Trustee, shall be delivered to the Trustee or
its agent for cancellation or, if surrendered to the Trustee, shall be canceled
by it; and no Securities or Coupons shall be issued in lieu thereof except as
expressly permitted by any of the provisions of this Indenture. The Trustee or
its agent shall dispose of canceled Securities and Coupons held by it in
accordance with its customary procedures for the disposition of cancelled
securities in effect as of the date of such cancellation. If the Issuer or its
agent shall acquire any of the Securities or Coupons, such acquisition shall
not operate as a redemption or satisfaction of the indebtedness represented by
such Securities or Coupons unless and until the same are delivered to the
Trustee or its agent for cancellation.
Section 2.11 Temporary Securities. Pending the preparation of
definitive Securities for any series, the Issuer may execute and the Trustee
shall authenticate and deliver temporary Securities for such series (printed,
lithographed, typewritten or otherwise reproduced, in each case in form
satisfactory to the Trustee). Temporary Securities of any series shall be
issuable as Registered Securities without Coupons, or as Unregistered
Securities with or without Coupons attached thereto, of any authorized
denomination, and substantially in the form of the definitive Securities of
such series but with such omissions, insertions and variations as may be
appropriate for temporary Securities, all as may be determined by the Issuer
with the concurrence of the Trustee as evidenced by the execution and
authentication thereof. Temporary Securities may contain such references to any
provisions of this Indenture as may be appropriate. Every temporary Security
shall be executed by the Issuer and be authenticated by the Trustee upon the
same conditions and in substantially the same manner, and with like effect, as
the definitive Securities. Without unreasonable delay the Issuer shall execute
and shall furnish definitive Securities of such series and thereupon temporary
Registered Securities of such series may be surrendered in exchange therefor
without charge at each office or agency to be maintained by the Issuer for that
purpose pursuant to Section 3.2 and, in the case of Unregistered Securities, at
any agency maintained by the Issuer for such purpose as specified pursuant to
Section 3.2, and the Trustee shall authenticate and deliver in exchange for
such temporary Securities of such series an equal aggregate principal amount of
definitive Securities of the same series having authorized denominations and,
in the case of Unregistered Securities, having attached thereto any appropriate
Coupons. Until so exchanged, the temporary Securities of any series shall be
entitled to the same benefits under this Indenture as definitive Securities of
such series, unless otherwise established pursuant to Section 2.3. The
provisions of this Section are subject to any restrictions or limitations on
the issue and delivery of temporary Unregistered Securities of any series that
may be established pursuant to Section 2.3 (including any provision that
Unregistered Securities of such series initially be issued in the form of a
single Unregistered Security in global form to be delivered to a Depositary or
agency located outside the United States and the procedures pursuant to which
Unregistered Securities in definitive or global form of such series would be
issued in exchange for such temporary Unregistered Security in global form).
Section 2.12 CUSIP Numbers. The Issuer in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so used
by the Issuer, the Trustee shall use "CUSIP" numbers in notices of redemption
as a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Issuer will promptly notify the Trustee in
writing of any change in the "CUSIP" numbers.
ARTICLE III
COVENANTS OF THE ISSUER
Section 3.1 Payment of Principal, Premium, Interest and
Additional Amounts. The Issuer covenants and agrees for the benefit of each
series of Securities that it will duly and punctually pay or cause to be paid
the principal of, and premium, if any, and interest on, each of the Securities
of such series (together with any Additional Amounts payable pursuant to the
terms of such Securities) at the place or places, at the respective times and
in the manner provided in such Securities and in the Coupons, if any,
appertaining thereto and in this Indenture. The interest on Securities with
Coupons attached (together with any Additional Amounts payable pursuant to the
terms of such Securities) shall be payable only upon presentation and surrender
of the several Coupons for such interest installments as are evidenced thereby
as they severally mature. If any temporary Unregistered Security provides that
interest thereon may be paid while such Security is in temporary form, the
interest on any such temporary Unregistered Security (together with any
Additional Amounts payable pursuant to the terms of such Security) shall be
paid, as to the installments of interest evidenced by Coupons attached thereto,
if any, only upon presentation and surrender thereof, and, as to the other
installments of interest, if any, only upon presentation of such Securities for
notation thereon of the payment of such interest, in each case subject to any
restrictions that may be established pursuant to Section 2.3. The interest on
Registered Securities (together with any Additional Amounts payable pursuant to
the terms of such Securities) shall be payable only to or upon the written
order of the Holders thereof and, at the option of the Issuer, may be paid by
wire transfer or by mailing checks for such interest payable to or upon the
written order of such Holders at their last addresses as they appear on the
registry books of the Issuer.
Section 3.2 Offices for Payments, Etc. So long as any
Securities are issued as Registered Securities, the Issuer will maintain in the
Borough of Manhattan, The City of New York, an office or agency where the
Registered Securities of each series may be presented for payment, where the
Securities of each series may be presented for exchange as is provided in this
Indenture and, if applicable, pursuant to Section 2.3 and where the Registered
Securities of each series may be presented for registration of transfer as in
this Indenture provided.
So long as any Securities are issued as Unregistered
Securities, the Issuer will maintain one or more offices or agencies in a city
or cities located outside the United States (including any city in which such
an agency is required to be maintained under the rules of any shares exchange
on which the Securities of such series are listed) where the Unregistered
Securities, if any, of each series and Coupons, if any, appertaining thereto
may be presented for payment. No payment on any Unregistered Security or Coupon
will be made upon presentation of such Unregistered Security or Coupon at an
agency of the Issuer within the United States nor will any payment be made by
transfer to an account in, or by mail to an address in, the United States
unless pursuant to applicable United States laws and regulations then in effect
such payment can be made without adverse tax consequences to the Issuer.
Notwithstanding the foregoing, payments in Dollars on Unregistered Securities
of any series and Coupons appertaining thereto which are payable in Dollars may
be made at an agency of the Issuer maintained in the Borough of Manhattan, The
City of New York, if such payment in Dollars at each agency maintained by the
Issuer outside the United States for payment on such Unregistered Securities is
illegal or effectively precluded by exchange controls or other similar
restrictions. The Issuer will maintain in the Borough of Manhattan, The City of
New York, an office or agency where notices and demands to or upon the Issuer
in respect of the Securities of any series, the Coupons appertaining thereto or
this Indenture may be served.
The Issuer will give to the Trustee written notice of the
location of each such office or agency and of any change of location thereof.
In case the Issuer shall fail to maintain any agency required by this Section,
or shall fail to give such notice of the location or of any change in the
location of any of the above agencies, presentations and demands may be made
and notices may be served at the [Corporate Trust Office] of the Trustee.
The Issuer may from time to time designate one or more
additional offices or agencies where the Securities of a series and any Coupons
appertaining thereto may be presented for payment, where the Securities of that
series may be presented for exchange as provided in this Indenture and pursuant
to Section 2.3 and where the Registered Securities of that series may be
presented for registration of transfer as in this Indenture provided, and the
Issuer may from time to time rescind any such designation, as the Issuer may
deem desirable or expedient; provided, however, that no such designation or
rescission shall in any manner relieve the Issuer of its obligation to maintain
the agencies provided for in this Section. The Issuer will give to the Trustee
prompt written notice of any such designation or rescission thereof.
Section 3.3 Money for Security Payments to be Held in Trust;
Unclaimed Money. If the Issuer shall at any time act as its own paying agent,
it will, on or before each due date of the principal of and premium, if any, or
interest or Additional Amounts on any of the Securities, segregate and hold in
trust for the benefit of the Holders entitled thereto a sum sufficient to pay
the principal (and premium, if any) or interest so becoming due until such sums
shall be paid to such Holders or otherwise disposed of as herein provided and
will promptly notify the Trustee of its action or failure so to act. Whenever
the Issuer shall have one or more paying agents, it will, on or prior to each
due date of the principal of and premium, if any, or interest or Additional
Amounts on any Securities, deposit with the paying agent or paying agents a sum
sufficient to pay the principal, premium, if any, or interest or Additional
Amounts so becoming due, such sum to be held in trust for the benefit of the
Holders entitled to such principal, premium, if any, or interest or Additional
Amounts, and, unless such paying agent is the Trustee, the Issuer will promptly
notify the Trustee of its action or failure so to act. The Issuer 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 the
principal of and premium, if any, or interest or Additional Amounts on
Securities in trust for the benefit of the Holders 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
Issuer (or any other obligor upon the Securities) in the making of any payment
of principal and premium, if any, or interest or Additional Amounts; and
(3) at any time during the continuance of any such
default, upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such paying agent.
The Issuer may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Issuer Order direct any paying agent to pay, to the Trustee all sums held in
trust by the Issuer 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 Issuer 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 money.
Any money deposited with the Trustee or any paying agent, or
then held by the Issuer in trust for the payment of the principal of and
premium, if any, or interest or Additional Amounts on any Security and
remaining unclaimed for two years after such principal and premium, if any, or
interest or Additional Amounts has become due and payable shall be paid to the
Issuer on Issuer Order, or, if then held by the Issuer, shall be discharged
from such trust; and the Holder of such Security shall thereafter, as an
unsecured general creditor, look only to the Issuer for payment thereof, and
all liability of the Trustee or such paying agent with respect to such trust
money, and all liability of the Issuer as trustee thereof, shall thereupon
cease; provided, however, that the Trustee or such paying agent, before being
required to make any such repayment, shall at the expense of the Issuer cause
to be published at least once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, 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 Issuer.
Section 3.4 Statements of Officers of Issuer as to Default;
Notice of Default.
(1) The Issuer will deliver to the Trustee, within 120
days after the end of each fiscal year of the Issuer ending after the date
hereof, a certificate, signed by the principal executive officer, principal
financial officer or principal accounting officer, stating whether or not to
the best knowledge of the signer thereof the Issuer is in default (without
regard to periods of grace or requirements of notice) in the performance and
observance of any of the terms, provisions and conditions hereof, and if the
Issuer shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
(2) The Issuer shall deliver to the Trustee written
notice of the occurrence of any default or Event of Default within five
Business Days of its becoming aware of any such default or Event of Default.
Section 3.5 Existence. Subject to Article IX, the Issuer will
do or cause to be done all things necessary to preserve and keep in full force
and effect its existence, rights (charter and statutory) and franchises and
those of each of its Subsidiaries; provided, however, that the Issuer shall not
be required to preserve any such right or franchise if the Issuer shall
determine that the preservation thereof is no longer desirable in the conduct
of the business of the Issuer or the business of any Subsidiary.
Section 3.6 Maintenance of Properties. The Issuer will cause
all 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 Issuer may be necessary so that the
business carried on in connection therewith may be properly and advantageously
conducted at all times; provided, however, that nothing in this Section shall
prevent the Issuer from discontinuing the operation or maintenance of any of
such properties if such discontinuance is, in the judgment of the Issuer,
desirable in the conduct of its business or the business of any Subsidiary.
Section 3.7 Payment of Taxes and Other Claims. The Issuer
shall pay or discharge or cause to be paid or discharged, before the same shall
become delinquent, (1) all taxes, assessments and governmental charges
(including withholding taxes and any penalties, interest and additions to
taxes) levied or imposed upon the Issuer or any Subsidiary or upon the income,
profits or property of the Issuer or any Subsidiary, and (2) all material
lawful claims for labor, materials and supplies which, if unpaid, might by law
become a lien upon the property of the Issuer or any Subsidiary; provided,
however, that the Issuer 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 3.8 Further Instruments and Acts. Upon request of the
Trustee or as necessary, the Issuer will execute and deliver such further
instruments and perform such further acts as may be reasonably necessary or
proper to carry out more effectively the purposes of this Indenture.
Section 3.9 Limitation on Liens. The Issuer and its
Restricted Subsidiaries may not issue, assume, incur or guarantee any
indebtedness for borrowed money secured by a mortgage, pledge, lien or other
encumbrance, directly or indirectly, upon any shares of the Voting Shares of a
Restricted Subsidiary which shares are owned by the Issuer or its Restricted
Subsidiaries without effectively providing that the Securities (and if the
Issuer so elects, any other indebtedness of the Issuer ranking on a parity with
the Securities) shall be secured equally and ratably with, or prior to, any
such secured indebtedness so long as such indebtedness remains outstanding.
This Section 3.9 shall not apply to Permitted Liens upon any shares of Voting
Shares of any Person existing at the time such Person becomes a Restricted
Subsidiary and any extensions, renewals or replacements thereof.
Section 3.10 Commission Reports. The Issuer shall provide to
the Trustee, within 15 days after it files such annual and other periodic
reports, information, documents and other reports with the Commission, copies
of its annual report and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the Commission may by rules
and regulations prescribe) which the Issuer is required to file with the
Commission pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934. 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 Issuer's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officer's Certificates). The Trustee shall be
under no obligation to analyze or make any credit decisions with respect to
reports or other information received by it pursuant to this section, but shall
hold such reports and other information solely for the benefit of, and review
by, the security holders.
Section 3.11 Calculation of Original Issue Discount. The
Issuer shall file with the Trustee promptly at the end of each calendar year
(1) a written notice specifying the amount of original issue discount
(including daily rates and accrual periods), if any, accrued on Outstanding
Securities as of the end of such year and (2) such other specific information
relating to such original issue discount as may then be relevant under the
Internal Revenue Code of 1986, as amended from time to time.
ARTICLE IV
SECURITYHOLDERS LISTS AND REPORTS BY THE ISSUER AND THE TRUSTEE
Section 4.1 Issuer to Furnish Trustee Information as to Names
and Addresses of Securityholders. If and so long as the Trustee shall not be
the Security registrar for the Securities of any series, the Issuer and any
other obligor on the Securities will furnish or cause to be furnished to the
Trustee a list in such form as the Trustee may reasonably require of the names
and addresses of the Holders of the Registered Securities of such series
pursuant to Section 312 of the Trust Indenture Act of 1939 (1) semi-annually
not more than 5 days after each record date for the payment of interest on such
Registered Securities, as hereinabove specified, as of such record date and on
dates to be determined pursuant to Section 2.3 for non-interest bearing
Registered Securities in each year, and (2) at such other times as the Trustee
may request in writing, within thirty days after receipt by the Issuer of any
such request as of a date not more than 15 days prior to the time such
information is furnished.
Section 4.2 Preservation of Information; Communications to
Holders.
(1) The Trustee shall preserve, in as current a form as
is reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 4.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar or paying agent. The Trustee may destroy any list furnished
to it as provided in Section 4.1 upon receipt of a new list so furnished.
(2) The rights of Holders to communicate with other
Holders with respect to their rights under this Indenture or under the
Securities, and the corresponding rights and privileges of the Trustee, shall
be as provided by the Trust Indenture Act of 1939.
(3) Every Holder of Securities, by receiving and
holding the same, agrees with the Issuer and the Trustee that neither the
Issuer nor the Trustee nor any agent of any of them shall be held accountable
by reason of the disclosure of any such information as to the names and
addresses of the Holders in accordance with Sections 4.1 and 4.2(2), 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 Section 4.2(2).
Section 4.3 Reports by the Trustee. Any Trustee's report
required under Section 313(a) of the Trust Indenture Act of 1939 shall be
transmitted within 60 days after May 15 in each year beginning 2005, as
provided in Section 313(c) of the Trust Indenture Act of 1939, so long as any
Securities are Outstanding hereunder, and shall be dated as of May 15, if
required by and in compliance with Section 313(a) of the Trust Indenture Act of
1939. A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each securities exchange, if any, upon
which the Securities are listed, with the Commission and with the Issuer. The
Issuer will promptly notify the Trustee when the Securities are listed on any
securities exchange and of any delisting thereof.
Section 4.4 Payment of Additional Amounts. The Issuer will
make all payments of principal of and premium, if any, interest and any other
amounts on, or in respect of, the Securities without withholding or deduction
at source for, or on account of, any present or future taxes, fees, duties,
assessments or governmental charges of whatever nature imposed or levied by or
on behalf of the Republic of India or any other jurisdiction in which the
Issuer is organized (a "taxing jurisdiction") or any political subdivision or
taxing authority thereof or therein, unless such taxes, fees, duties,
assessments or governmental charges are required to be withheld or deducted by
(x) the laws (or any regulations or rulings promulgated thereunder) of a taxing
jurisdiction or any political subdivision or taxing authority thereof or
therein or (y) an official position regarding the application, administration,
interpretation or enforcement of any such laws, regulations or rulings
(including, without limitation, a holding by a court of competent jurisdiction
or by a taxing authority in a taxing jurisdiction or any political subdivision
thereof). If a withholding or deduction at source is required, the Issuer will,
subject to certain limitations and exceptions described below, pay to the
Holder of any Security such Additional Amounts as may be necessary so that
every net payment of principal, premium, if any, interest or any other amount
made to such Holder, after the withholding or deduction, will not be less than
the amount provided for in such Security or in the indenture to be then due and
payable.
The Issuer will not be required to pay any Additional Amounts
for or on account of:
(1) any tax, fee, duty, assessment or governmental
charge of whatever nature which would not have been imposed but for the fact
that such Holder (a) was a resident, domiciliary or national of, or engaged in
business or maintained a permanent establishment or was physically present in,
the relevant taxing jurisdiction or any political subdivision thereof or
otherwise had some connection with the relevant taxing jurisdiction other than
by reason of the mere ownership of, or receipt of payment under, such Security,
(b) presented, where presentation is required, such Security for payment in the
relevant taxing jurisdiction or any political subdivision thereof, unless such
Security could not have been presented for payment elsewhere, or (c) presented,
where presentation is required, such Security for payment more than 30 days
after the date on which the payment in respect of such Security became due and
payable or provided for, whichever is later, except to the extent that the
Holder would have been entitled to such additional amounts if it had presented
such Security for payment on any day within that 30-day period;
(2) any estate, inheritance, gift, sale, transfer,
capital gains, stamp, personal property or similar tax, duty assessment or
other governmental charge;
(3) any tax, assessment or other governmental charge
that is imposed or withheld by reason of the failure by the Holder of such
Security to comply with any reasonable request by us addressed to the Holder
within 90 days of such request (a) to provide information concerning the
nationality, residence or identity of the Holder or (b) to make any declaration
or other similar claim or satisfy any information or reporting requirement,
which is required or imposed by statute, treaty, regulation or administrative
practice of the relevant taxing jurisdiction or any political subdivision
thereof as a precondition to exemption from all or part of such tax, assessment
or other governmental charge;
(4) any withholding or deduction required to be made
pursuant to EU Council Directive 2003/48/EC of 3 June 2003 on the taxation of
savings income in the form of interest payments (the "EU Directive"), or any
law implementing or complying with, or introduced in order to conform to such
EU Directive; or
(5) any combination of items (1), (2), (3) and (4).
In addition, the Issuer will not pay Additional Amounts with
respect to any payment of principal of, or premium, if any, interest or any
other amounts on, any such Security to any Holder who is a fiduciary or
partnership or other than the sole beneficial owner of such Security if such
payment would be required by the laws of the relevant taxing jurisdiction (or
any political subdivision or relevant taxing authority thereof or therein) to
be included in the income for tax purposes of a beneficiary or partner or
settlor with respect to such fiduciary or a member of such partnership or a
beneficial owner to the extent such beneficiary, partner or settlor would not
have been entitled to such Additional Amounts had it been the Holder of the
Security.
Section 4.5 Redemption for Tax Purposes. The Issuer may
redeem the Securities at its option, in whole but not in part, at a redemption
price equal to 100% of the principal amount, together with accrued and unpaid
interest and Additional Amounts, if any, to the date fixed for redemption, at
any time the Issuer receives an opinion of counsel that as a result of (1) any
change in or amendment to the laws or treaties (or any regulations or rulings
promulgated under these laws or treaties) of the Republic of India or any
taxing jurisdiction (or of any political subdivision or taxation authority
affecting taxation) or any change in the application or official interpretation
of such laws, regulations or rulings, or (2) any action taken by a taxing
authority of the Republic of India or any taxing jurisdiction (or any political
subdivision or taxing authority affecting taxation) which action is generally
applied or is taken with respect to the Issuer, or (3) a decision rendered by a
court of competent jurisdiction in the Republic of India or any taxing
jurisdiction (or any political subdivision) whether or not such decision was
rendered with respect to the Issuer, there is a substantial probability that
the Issuer will be required as of the next interest payment date to pay
Additional Amounts with respect to the Securities as provided in Section 4.4
and such requirements cannot be avoided by the use of reasonable measures
(consistent with practices and interpretations generally followed or in effect
at the time such measures could be taken) then available. If the Issuer elects
to redeem the Securities under this provision, the Issuer will give written
notice of such election to the Trustee and the Holders of the Securities.
Interest on the Securities will cease to accrue unless the Issuer defaults in
the payment of the redemption price.
ARTICLE V
REMEDIES OF THE TRUSTEE AND SECURITYHOLDERS ON EVENT OF DEFAULT
Section 5.1 Event of Default Defined; Acceleration of
Maturity; Waiver of Default. "Event of Default" with respect to Securities of
any series wherever used herein, means each one of the following events which
shall have occurred and be continuing (whatever the reason for such Event of
Default and whether 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)
unless it is either inapplicable to a particular series or it is specifically
deleted or modified in an indenture supplemental hereto, if any, under which
such series of Securities is issued:
(1) default in the payment of any installment of
interest upon any of the Securities of such series as and when the same shall
become due and payable, and continuance of such default for a period of 30 days
and the interest payment date has not been properly extended or deferred;
provided, however, that if the Issuer is permitted by the terms of the
Securities of the applicable series to defer the payment in question, the date
on which such payment is due and payable shall be the date on which the Issuer
is required to make payment following such deferral, if such deferral has been
elected pursuant to the terms of the Securities of that series (subject to any
deferral of any due date in the case of an extension period); or
(2) default in the payment of all or any part of the
principal of, or premium, if any, or any Additional Amounts on any of the
Securities of such series, as and when the same shall become due and payable
either at maturity, upon any redemption, by declaration or otherwise; provided,
however, that if the Issuer is permitted by the terms of the Securities of the
applicable series to defer the payment in question, the date on which such
payment is due and payable shall be the date on which the Issuer is required to
make payment following such deferral, if such deferral has been elected
pursuant to the terms of the Securities of that series (subject to any deferral
of any due date in the case of an extension period); or
(3) default in the payment of any sinking fund
installment as and when the same shall become due and payable by the terms of
the Securities of such series; or
(4) failure on the part of the Issuer duly to observe
or perform any other of the covenants or agreements on the part of the Issuer
in the Securities of such series (other than a covenant or agreement in respect
of the Securities of such series a default in the performance or breach of
which is elsewhere in this Section specifically dealt with) or contained in
this Indenture (other than a covenant or agreement included in this Indenture
solely for the benefit of a series of Securities other than such series) for a
period of 90 days after the date on which written notice specifying such
failure, stating that such notice is a "Notice of Default" hereunder and
demanding that the Issuer remedy the same, shall have been given by registered
or certified mail, return receipt requested, to the Issuer by the Trustee, or
to the Issuer and the Trustee by the holders of at least 33% in aggregate
principal amount of the Outstanding Securities of all series affected thereby;
or
(5) a decree or order by a court having jurisdiction in
the premises shall have been entered adjudging the Issuer or any Restricted
Subsidiary as bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization of the Issuer or any Restricted Subsidiary under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, and such decree or order shall have continued undischarged and unstayed
for a period of 120 days; or a decree or order of a court having jurisdiction
in the premises for the appointment of a receiver or liquidator or trustee or
assignee in bankruptcy or insolvency of the Issuer or any Restricted Subsidiary
or of its or their property, or for the winding up or liquidation of its or
their affairs, shall have been entered, and such decree or order shall have
remained in force and unstayed for a period of 120 days; or
(6) the Issuer or any Restricted Subsidiary shall
commence a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consent to the entry of an order for
relief in an involuntary case under any such law, or consent to the appointment
or taking possession by a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Issuer or any Restricted Subsidiary
or for any substantial part of its or their property, or make any general
assignment for the benefit of creditors, or shall admit in writing its
inability to pay its or their respective debts generally as they become due; or
(7) an event of default, as defined in any one or more
mortgages, indentures, instruments, bonds, debentures, notes or other similar
instruments under which there may be issued, or by which there may be secured
or evidenced, any indebtedness (other than the Securities of such series or
nonrecourse obligations) ("Indebtedness") in excess of [$25,000,000] for money
borrowed by the Issuer or a Restricted Subsidiary shall occur (after giving
effect to any applicable grace period), if such event of default shall result
in the acceleration of such Indebtedness prior to its expressed maturity unless
such Indebtedness is discharged or such acceleration is cured, waived,
rescinded or annulled within 30 days after written notice thereof shall have
been given by registered or certified mail, return receipt requested, to the
Issuer by the Trustee or to the Issuer and the Trustee by the Holders of at
least 33% in aggregate principal amount of the Outstanding Securities (treated
as one class) which notice shall state that it is a "Notice of Default"
hereunder; or
(8) any other Event of Default provided in the
supplemental indenture under which such series of Securities is issued or in
the form of Security for such series; provided that if any such default or
acceleration referred to in clause (7) above shall cease or be cured, waived,
rescinded or annulled, then the Event of Default hereunder by reason thereof
shall be deemed likewise to have been thereupon cured.
If an Event of Default described in clause (1), (2), (3), (4)
or (8) (if the Event of Default under clause (4) or (8), as the case may be, is
with respect to less than all series of Securities then Outstanding) occurs and
is continuing, then, and in each and every such case, except for any series of
Securities the principal of which shall have already become due and payable,
either the Trustee or the Holders of not less than 33% in aggregate principal
amount of the Securities of each such affected series then Outstanding
hereunder (voting as a single class) by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if the Securities of any such affected series are Original Issue Discount
Securities, such portion of the principal amount as may be specified in the
terms of such series) of all Securities of all such affected series, and the
interest accrued thereon, if any, to be due and payable immediately, and upon
any such declaration, the same shall become immediately due and payable. If an
Event of Default described in clause (4) or (8) (if the Event of Default under
clause (4) or (8), as the case may be, is with respect to all series of
Securities then Outstanding) or (7) occurs and is continuing, then and in each
and every such case, unless the principal of all the Securities shall have
already become due and payable, either the Trustee or the Holders of not less
than 33% in aggregate principal amount of all the Securities then Outstanding
hereunder (treated as one class), by notice in writing to the Issuer (and to
the Trustee if given by Securityholders), may declare the entire principal (or,
if any Securities are Original Issue Discount Securities, such portion of the
principal as may be specified in the terms thereof) of all the Securities then
Outstanding, and interest accrued thereon and Additional Amounts, if any, to be
due and payable immediately, and upon any such declaration the same shall
become immediately due and payable. If an Event of Default specified in clause
(5) or (6) occurs, all unpaid principal (or, if any Securities are Original
Issue Discount Securities, such portion of the principal as may be specified in
the terms thereof) of all the Securities then Outstanding, and interest accrued
thereon, if any, shall be due and payable immediately, without any declaration
or other act on the part of the Trustee or any Securityholder.
The foregoing provisions, however, are subject to the
condition that if, at any time after the principal (or, if the Securities are
Original Issue Discount Securities, such portion of the principal as may be
specified in the terms thereof) of the Securities of any series (or of all the
Securities, as the case may be) shall have been so declared due and payable,
and before any judgment or decree for the payment of the moneys due shall have
been obtained or entered as hereinafter provided, the Issuer shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest and Additional Amounts, if any, upon all the Securities of such series
(or of all the Securities, as the case may be) and the principal of any and all
Securities of each such series (or of all the Securities, as the case may be)
which shall have become due otherwise than by acceleration (with interest upon
such principal and, to the extent that payment of such interest is enforceable
under applicable law, on overdue installments of interest at the same rate as
the rate of interest or Yield to Maturity (in the case of Original Issue
Discount Securities) specified in the Securities of each such series (or at the
respective rates of interest or Yields to Maturity of all the Securities, as
the case may be) to the date of such payment or deposit) and such amount as
shall be sufficient to cover reasonable compensation to the Trustee and each
predecessor Trustee, its agents, attorneys and counsel, and all other expenses
and liabilities incurred, and all advances made, by the Trustee and each
predecessor Trustee except as a result of negligence, bad faith or willful
misconduct, and if any and all Events of Default under the Indenture, other
than the non-payment of the principal of Securities which shall have become due
by acceleration, shall have been cured, waived or otherwise remedied as
provided herein, then and in every such case the Holders of a majority in
aggregate principal amount of all the Securities of each such series, or of all
the Securities, in each case voting as a single class, then Outstanding, by
written notice to the Issuer and to the Trustee, may waive all defaults with
respect to each such series (or with respect to all the Securities, as the case
may be) and rescind and annul such declaration and its consequences, but no
such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or shall impair any right consequent thereon.
For all purposes under this Indenture, if a portion of the
principal of any Original Issue Discount Securities shall have been accelerated
and declared due and payable pursuant to the provisions hereof, then, from and
after such declaration, unless such declaration has been rescinded and
annulled, the principal amount of such Original Issue Discount Securities shall
be deemed, for all purposes hereunder, to be such portion of the principal
thereof as shall be due and payable as a result of such acceleration, and
payment of such portion of the principal thereof as shall be due and payable as
a result of such acceleration, together with interest, if any, thereon and all
other amounts owing thereunder, shall constitute payment in full of such
Original Issue Discount Securities.
Section 5.2 Collection of Indebtedness by Trustee; Trustee
May Prove Debt.
(1) The Issuer covenants that (a) in case default shall
be made in the payment of any installment of interest on any of the Securities
of any series when such interest shall have become due and payable, and such
default shall have continued for a period of 30 days or (b) in case default
shall be made in the payment of all or any part of the principal of any
Additional Amounts on the Securities of any series when the same shall have
become due and payable, whether upon maturity of the Securities of such series
or upon any redemption or by declaration or otherwise, then upon demand of the
Trustee, the Issuer will pay to the Trustee for the benefit of the Holders of
the Securities of such series the whole amount that then shall have become due
and payable on all Securities of such series, and such Coupons, for principal,
interest or Additional Amounts, as the case may be (with interest to the date
of such payment upon the overdue principal and, to the extent that payment of
such interest is enforceable under applicable law, on overdue installments of
interest at the same rate as the rate of interest or Yield to Maturity (in the
case of Original Issue Discount Securities) specified in the Securities of such
series); and in addition thereto, such further amount as shall be sufficient to
cover the costs and expenses of collection, including reasonable compensation
to the Trustee and each predecessor Trustee, their respective agents, attorneys
and counsel, and any expenses and liabilities incurred, and all advances made,
by the Trustee and each predecessor Trustee except as a result of its
negligence, bad faith or willful misconduct.
Until such demand is made by the Trustee, the Issuer may pay
the principal of and interest on the Securities of any series to the registered
holders, whether or not the Securities of such series be overdue.
(2) In case the Issuer shall fail forthwith to pay such
amounts upon such demand, the Trustee, in its own name and as trustee of an
express trust, shall be entitled and empowered to institute any action or
proceedings at law or in equity for the collection of the sums so due and
unpaid, and may prosecute any such action or proceedings to judgment or final
decree, and may enforce any such judgment or final decree against the Issuer or
other obligor upon the Securities and collect in the manner provided by law out
of the property of the Issuer or other obligor upon the Securities, wherever
situated the moneys adjudged or decreed to be payable.
(3) In case there shall be pending proceedings relative
to the Issuer or any other obligor upon the Securities under Title 11 of the
United States Code or any other applicable Federal or state bankruptcy,
insolvency or other similar law, or in case a receiver, assignee or trustee in
bankruptcy or reorganization, liquidator, sequestrator or similar official
shall have been appointed for or taken possession of the Issuer or its property
or such other obligor, or in case of any other comparable judicial proceedings
relative to the Issuer or other obligor upon the Securities, or to the
creditors or property of the Issuer or such other obligor, the Trustee,
irrespective of whether the principal of the Securities 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 pursuant to the provisions of
this Section, shall be entitled and empowered, by intervention in such
proceedings or otherwise:
(a) to file and prove a claim or claims for the
whole amount of principal and interest and Additional Amounts (or, if
the Securities of any series are Original Issue Discount Securities,
such portion of the principal amount as may be specified in the terms
of such series) owing and unpaid in respect of the Securities of any
series, 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 reasonable compensation to the Trustee and each predecessor
Trustee, and their respective agents, attorneys and counsel, and for
reimbursement of all expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee, except as
a result of negligence, bad faith or willful misconduct) and of the
Securityholders allowed in any judicial proceedings relative to the
Issuer or other obligor upon the Securities, or to the creditors or
property of the Issuer or such other obligor,
(b) unless prohibited by applicable law and
regulations, to vote on behalf of the holders of the Securities of any
series in any election of a trustee or a standby trustee in
arrangement, reorganization, liquidation or other bankruptcy or
insolvency proceedings or person performing similar functions in
comparable proceedings, and
(c) to collect and receive any moneys or other
property payable or deliverable on any such claims, and to distribute
all amounts received with respect to the claims of the Securityholders
and of the Trustee on their behalf; and any trustee, receiver, or
liquidator, custodian or other similar official is hereby authorized
by each of the Securityholders to make payments to the Trustee, and,
in the event that the Trustee shall consent to the making of payments
directly to the Securityholders, to pay to the Trustee such amounts as
shall be sufficient to cover reasonable compensation to the Trustee,
each predecessor Trustee and their respective agents, attorneys and
counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee and each predecessor Trustee except as a
result of negligence, bad faith or willful misconduct.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or vote for or accept or adopt on behalf of
any Securityholder any plan of reorganization, arrangement, adjustment or
composition affecting the Securities of any series or the rights of any Holder
thereof, or to authorize the Trustee to vote in respect of the claim of any
Securityholder in any such proceeding except, as aforesaid, to vote for the
election of a trustee in bankruptcy or similar person.
(4) All rights of action and of asserting claims under
this Indenture, or under any of the Securities of any series or Coupons
appertaining to such Securities, may be enforced by the Trustee without the
possession of any of such Securities or Coupons or the production thereof in
any trial or other proceedings relative thereto, and any such action or
proceedings instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment, subject to the
payment of the expenses, disbursements and compensation of the Trustee, each
predecessor Trustee and their respective agents and attorneys, shall be for the
ratable benefit of the Holders of the Securities or Coupons appertaining to
such Securities in respect of which such action was taken.
(5) In any proceedings brought by the Trustee (and also
any proceedings involving the interpretation of any provision of this Indenture
to which the Trustee shall be a party) the Trustee shall be held to represent
all the Holders of the Securities or Coupons appertaining to such Securities in
respect to which such action was taken, and it shall not be necessary to make
any Holders of such Securities or Coupons appertaining to such Securities
parties to any such proceedings.
Section 5.3 Application of Proceeds. Any moneys collected by
the Trustee pursuant to this Article in respect of any series shall be applied
in the following order at the date or dates fixed by the Trustee and, in case
of the distribution of such moneys on account of principal or interest or
Additional Amounts, upon presentation of the several Securities and Coupons
appertaining to such Securities in respect of which monies have been collected
and stamping (or otherwise noting) thereon the payment, or issuing Securities
of such series in reduced principal amounts in exchange for the presented
Securities of like series if only partially paid, or upon surrender thereof if
fully paid:
FIRST: To the payment of costs and expenses applicable to
such series in respect of which monies have been collected, including
reasonable compensation to the Trustee and each predecessor Trustee and their
respective agents and attorneys and of all expenses and liabilities incurred,
and all advances made, by the Trustee and each predecessor Trustee except as a
result of negligence, bad faith or willful misconduct;
SECOND: In case the principal of the Securities of such
series in respect of which moneys have been collected shall not have become and
be then due and payable, to the payment of interest and Additional Amounts on
the Securities of such series in default in the order of the maturity of the
installments of such interest, with interest (to the extent that such interest
has been collected by the Trustee) upon the overdue installments of interest at
the same rate as the rate of interest or Yield to Maturity (in the case of
Original Issue Discount Securities) specified in such Securities, such payments
to be made ratably to the persons entitled thereto, without discrimination or
preference;
THIRD: In case the principal of the Securities of such series
in respect of which moneys have been collected shall have become and shall be
then due and payable, to the payment of the whole amount then owing and unpaid
upon all the Securities of such series for principal and interest and
Additional Amounts, with interest upon the overdue principal, and (to the
extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the same rate as the rate of interest or Yield to
Maturity (in the case of Original Issue Discount Securities) specified in the
Securities of such series; and in case such moneys shall be insufficient to pay
in full the whole amount so due and unpaid upon the Securities of such series,
then to the payment of such principal, interest and Additional Amounts or Yield
to Maturity, without preference or priority of principal over interest,
Additional Amounts or Yield to Maturity, or of interest, Additional Amounts or
Yield to Maturity over principal, or of any installment of interest over any
other installment of interest, or of any Security of such series over any other
Security of such series, ratably to the aggregate of such principal, accrued
and unpaid interest, Additional Amounts or Yield to Maturity; and
FOURTH: To the payment of the remainder, if any, to the
Issuer or as a court of competent jurisdiction shall direct in writing.
Section 5.4 Suits for Enforcement. In case an Event of
Default has occurred, has not been waived and is continuing, the Trustee may in
its discretion proceed to protect and enforce the rights vested in it by this
Indenture by such appropriate judicial proceedings as the Trustee shall deem
necessary to protect and enforce any of such rights, either at law or in equity
or in bankruptcy or otherwise, whether for the specific enforcement of any
covenant or agreement contained in this Indenture or in aid of the exercise of
any power granted in this Indenture or to enforce any other legal or equitable
right vested in the Trustee by this Indenture or by law.
Section 5.5 Restoration of Rights on Abandonment of
Proceedings. In case the Trustee shall have proceeded to enforce any right
under this Indenture and such proceedings shall have been discontinued or
abandoned for any reason, or shall have been determined adversely to the
Trustee, then and in every such case the Issuer and the Trustee shall be
restored respectively to their former positions and rights hereunder, and all
rights, remedies and powers of the Issuer, the Trustee and the Securityholders
shall continue as though no such proceedings had been taken.
Section 5.6 Limitations on Suits by Securityholders. No
Holder of any Security of any series or of any Coupon appertaining thereto
shall have any right by virtue or by availing of any provision of this
Indenture to institute any action or proceeding at law or in equity or in
bankruptcy or otherwise upon or under or with respect to this Indenture, or for
the appointment of a trustee, receiver, liquidator, custodian or other similar
official or for any other remedy hereunder, unless such Holder previously shall
have given to the Trustee written notice of default and of the continuance
thereof, as hereinbefore provided, and unless also the Holders of not less than
33% in aggregate principal amount of the Securities of each affected series
then Outstanding (treated as a single class) shall have made written request
upon the Trustee to institute such action or proceedings in its own name as
trustee hereunder and shall have offered to the Trustee such indemnity
reasonably satisfactory to it against the costs, expenses and liabilities to be
incurred therein or thereby and the Trustee for 60 days after its receipt of
such notice, request and offer of indemnity shall have failed to institute any
such action or proceeding and no direction inconsistent with such written
request shall have been given to the Trustee pursuant to Section 5.9; it being
understood and intended, and being expressly covenanted by the taker and Holder
of every Security or Coupon with every other taker and Holder and the Trustee,
that no one or more Holders of Securities of any series or Coupons appertaining
to such Securities shall have any right in any manner whatever by virtue or by
availing of any provision of this Indenture to affect, disturb or prejudice the
rights of any other such Holder of Securities or Coupons appertaining to such
Securities, or to obtain or seek to obtain priority over or preference to any
other such Holder or to enforce any right under this Indenture, except in the
manner herein provided and for the equal, ratable and common benefit of all
Holders of Securities of the applicable series and Coupons appertaining to such
Securities. For the protection and enforcement of the provisions of this
Section, each and every Securityholder and the Trustee shall be entitled to
such relief as can be given either at law or in equity.
Section 5.7 Unconditional Right of Securityholders to
Institute Certain Suits. Notwithstanding any other provision in this Indenture
and any provision of any Security, the right of any Holder of any Security or
Coupon to receive payment of the principal of and interest on such Security or
Coupon on or after the respective due dates expressed in such Security or
Coupon, or to institute suit for the enforcement of any such payment on or
after such respective dates, shall not be impaired or affected without the
consent of such Holder.
Section 5.8 Powers and Remedies Cumulative; Delay or Omission
Not Waiver of Default. Except as provided in Section 5.6, 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. No delay or omission of the Trustee or of any Holder of Securities or
Coupons to exercise any right or power accruing upon any Event of Default
occurring and continuing as aforesaid shall impair any such right or power or
shall be construed to be a waiver of any such Event of Default or an
acquiescence therein; and, subject to Section 5.6, every power and remedy given
by this Indenture or by law to the Trustee or to the Holders of Securities or
Coupons may be exercised from time to time, and as often as shall be deemed
expedient, by the Trustee or by the Holders of Securities or Coupons.
Section 5.9 Control by Holders of Securities. The Holders of
a majority in aggregate principal amount of the Securities of each series
affected (with all such series voting as a single class) at the time
Outstanding 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 by this Indenture; provided that such direction shall
not be otherwise than in accordance with law and the provisions of this
Indenture; provided further that (subject to the provisions of Section 6.1) the
Trustee shall have the right to decline to follow any such direction if the
Trustee, being advised by counsel, shall determine that the action or
proceeding so directed may not lawfully be taken or if the Trustee in good
faith by its board of directors, the executive committee, or a trust committee
of directors or Responsible Officers of the Trustee shall determine that the
action or proceedings so directed would involve the Trustee in personal
liability or if the Trustee in good faith shall so determine that the actions
or forbearances specified in or pursuant to such direction would be unduly
prejudicial to the interests of Holders of the Securities of all series so
affected not joining in the giving of said direction, it being understood that
(subject to Section 6.1) the Trustee shall have no duty to ascertain whether or
not such actions or forbearances are unduly prejudicial to such Holders.
Nothing in this Indenture shall impair the right of the
Trustee in its discretion to take any action deemed proper by the Trustee and
which is not inconsistent with such direction or directions by Securityholders.
Section 5.10 Waiver of Past Defaults. Prior to the
acceleration of the maturity of any Securities as provided in Section 5.1, the
Holders of a majority in aggregate principal amount of the Securities of all
series at the time Outstanding with respect to which an Event of Default shall
have occurred and be continuing, may (voting as a single class) on behalf of
the Holders of all such Securities waive any past default or Event of Default
described in Section 5.1 and its consequences, except a default in respect of a
covenant or provision hereof which cannot be modified or amended without the
consent of the Holder of each Security affected. In the case of any such
waiver, the Issuer, the Trustee and the Holders of all such Securities shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other default or impair any right
consequent thereon.
Upon any such waiver, such default shall cease to exist and
be deemed to have been cured and not to have occurred, and any Event of Default
arising therefrom shall be deemed to have been cured, and not to have occurred
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 5.11 Trustee to Give Notice of Default, but May
Withhold in Certain Circumstances. Subject to Section 6.1(2)(e), the Trustee
shall, within ninety days after the occurrence of a default with respect to the
Securities of any series, give notice of all defaults with respect to that
series actually known to a Responsible Officer of the Trustee (1) if any
Unregistered Securities of that series are then Outstanding, to the Holders
thereof, by publication at least once in an Authorized Newspaper in the Borough
of Manhattan, The City of New York and (2) to all Holders of Securities of such
series in the manner and to the extent provided in Section 313(c) of the Trust
Indenture Act of 1939, unless in each case such defaults shall have been cured
before the mailing or publication of such notice (the term "defaults" for the
purpose of this Section being hereby defined to mean any event or condition
which is, or with notice or lapse of time or both would become, an Event of
Default); provided that, except in the case of default in the payment of the
principal of or interest or Additional Amounts on any of the Securities of such
series, or in the payment of any sinking fund installment on such series, the
Trustee shall be protected in withholding such notice if and so long as the
board of directors, the executive committee, or a trust committee of directors
or trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the interests of the Securityholders
of such series.
Section 5.12 Right of Court to Require Filing of Undertaking
to Pay Costs. All parties to this Indenture agree, and each Holder of any
Security or Coupon by his or her 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, suffered or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit, and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, 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
Securityholder or group of Securityholders of any series holding in the
aggregate more than 10% in aggregate principal amount of the Securities of such
series, or, in the case of any suit relating to or arising under clause (4) or
(8) of Section 5.1 (if the suit relates to Securities of more than one but less
than all series), 10% in aggregate principal amount of Securities then
Outstanding and affected thereby, or in the case of any suit relating to or
arising under clause (4) or (8) (if the suit under clause (4) or (8) relates to
all the Securities then Outstanding), (5), (6) or (7) of Section 5.1, 10% in
aggregate principal amount of all Securities then Outstanding, or to any suit
instituted by any Securityholder for the enforcement of the payment of the
principal of or interest or Additional Amounts on any Security on or after the
due date expressed in such Security or any date fixed for redemption.
ARTICLE VI
CONCERNING THE TRUSTEE
Section 6.1 Duties and Responsibilities of the Trustee;
During Default; Prior to Default.
(1) With respect to the Holders of any series of
Securities issued hereunder, the Trustee, prior to the occurrence of an Event
of Default with respect to the Securities of a particular series and after the
curing or waiving of all Events of Default which may have occurred with respect
to such series, undertakes to perform such duties and only such duties as are
specifically set forth in this Indenture. In case an Event of Default with
respect to the Securities of a series has occurred (which has not been cured or
waived), the Trustee shall exercise with respect to such series of Securities
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.
(2) 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
(a) prior to the occurrence of an Event of
Default with respect to the Securities of any series and after the
curing or waiving of all such Events of Default with respect to such
series which may have occurred:
(i) the duties and obligations of the
Trustee with respect to the Securities of any series shall be
determined solely by the express provisions of this
Indenture, and the Trustee shall not be liable except for the
performance of such duties and obligations as are
specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(ii) in the absence of bad faith on the
part of the Trustee, the Trustee may conclusively rely, as to
the truth of the statements and the correctness of the
opinions expressed therein, upon any statements, certificates
or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but in the case of any such
statements, 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 unless specifically required by
this Indenture).
(b) the Trustee shall not be liable for any error
of judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee
was negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable for any
action taken or omitted by it in good faith and believed by it to be
authorized or within the discretion, rights or powers conferred upon
it by this Indenture;
(d) 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 pursuant to Section 5.9
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
(e) the Trustee shall not be required to take
notice, and shall not be deemed to have notice, of any default or
Event of Default hereunder, except Events of Default described in
paragraphs (1), (2) and (3) of Section 5.1 hereof, unless a
Responsible Officer of the Trustee shall be notified specifically of
the default or Event of Default on a written instrument or document
delivered to it at its notice address by the Issuer or by the Holders
of at least 10% of the aggregate principal amount of Securities then
outstanding. In the absence of delivery of notice satisfying those
requirements, the Trustee may assume conclusively that there is no
default or Event of Default, except as noted.
(3) None of the provisions contained in this Indenture
shall require the Trustee to expend or risk its own funds or otherwise incur
personal financial liability in the performance of any of its duties or in the
exercise of any of its rights or powers.
The provisions of this Section 6.1 are in furtherance of and
subject to Section 315 of the Trust Indenture Act of
1939.
Section 6.2 Certain Rights of the Trustee. In furtherance of
and subject to the Trust Indenture Act of 1939, and subject to Section 6.1:
(1) the Trustee may conclusively rely, as to the truth
of the statements and the correctness of the opinions expressed therein, and
shall be protected in acting or refraining from acting upon any resolution,
Officer's Certificate or any other certificate, statement, instrument, opinion,
report, notice, request, consent, order, bond, debenture, note, coupon,
security 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, direction, order or demand of the
Issuer mentioned herein shall be sufficiently evidenced by an Officer's
Certificate (unless other evidence in respect thereof be herein specifically
prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the secretary or an assistant
secretary of the Issuer;
(3) the Trustee may consult with legal counsel of its
choice or other experts, and the advice of such experts within the scope of
such expert's area of expertise or opinion of counsel with respect to legal
matters shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted to be taken by it hereunder in good faith
and in accordance with such advice or opinion.
(4) the Trustee shall be under no obligation to
exercise any of the trusts or powers vested in it by this Indenture at the
request, order or direction of any of the Securityholders pursuant to the
provisions of this Indenture, unless such Securityholders shall have offered to
the Trustee security or indemnity reasonably satisfactory to it against the
costs, expenses and liabilities which might be incurred therein or thereby;
(5) prior to the occurrence of an Event of Default
hereunder and after the curing or waiving of all Events of Default, 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, consent, order, approval, appraisal, bond, debenture, note, coupon,
security, or other paper or document unless requested in writing so to do by
the Holders of not less than a majority in aggregate principal amount of the
Securities of all series affected by such Event of Default and then
Outstanding; provided that, if the payment within a reasonable time to the
Trustee of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the terms
of this Indenture, the Trustee may require indemnity satisfactory to it against
such expenses or liabilities as a condition to proceeding; the reasonable
expenses of every such investigation shall be paid by the Issuer or, if paid by
the Trustee or any predecessor Trustee, shall be repaid by the Issuer upon
demand;
(6) 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 such agent or attorney appointed with due care
by it hereunder;
(7) 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 and other Person
employed to act hereunder;
(8) the Trustee may request that the Issuer deliver a
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Certificate may be signed by any person authorized to sign an Officer's
Certificate, including any person specified as so authorized in any such
certificate previously delivered and not superseded;
(9) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry or
investigation into such facts or matters as it may see fit, and, if the Trustee
shall determine to make such further inquiry or investigation, it shall be
entitled to examine the books, records and premises of the Issuer, at a time
reasonably determined by the Issuer, personally or by agent or attorney at the
sole cost of the Issuer and shall incur no liability or additional liability of
any kind by reason of such inquiry or investigation; and
(10) in no event shall the Trustee be responsible or
liable for special, indirect, or consequential loss or damage of any kind
whatsoever (including, but not limited to, loss of profit) irrespective of
whether the Trustee has been advised of the likelihood of such loss or damage
and regardless of the form of action.
Section 6.3 Trustee Not Responsible for Recitals, Disposition
of Securities or Application of Proceeds Thereof. The recitals contained herein
and in the Securities, except the Trustee's certificates of authentication,
shall be taken as the statements of the Issuer, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of any
Securities or Coupons. The Trustee shall not be accountable for the use or
application by the Issuer of any of the Securities or of the proceeds thereof.
Section 6.4 Trustee and Agents May Hold Securities or
Coupons; Collections, Etc. The Trustee or any agent of the Issuer or the
Trustee, in its individual or any other capacity, may become the owner or
pledgee of Securities or Coupons with the same rights it would have if it were
not the Trustee or such agent and may otherwise deal with the Issuer and
receive, collect, hold and retain collections from the Issuer with the same
rights it would have if it were not the Trustee or such agent.
Section 6.5 Moneys Held by Trustee. Subject to the provisions
of Section 3.3 hereof, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the extent
required by mandatory provisions of law. Neither the Trustee nor any agent of
the Issuer or the Trustee shall be under any liability for interest on any
moneys received by it hereunder.
Section 6.6 Compensation and Indemnification of Trustee and
its Prior Claim. The Issuer covenants and agrees to pay to the Trustee from
time to time, and the Trustee shall be entitled to, such compensation as shall
be agreed in writing between the Issuer and the Trustee from time to time
(which shall not be limited by any provision of law in regard to the
compensation of a trustee of an express trust) and the Issuer covenants and
agrees to pay or reimburse the Trustee and each predecessor Trustee upon its
request for all reasonable expenses, disbursements and advances incurred or
made by or on behalf of it in accordance with any of the provisions of this
Indenture (including the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not regularly
in its employ) except any such expense, disbursement or advance as shall be
determined to have been caused by its own negligence, bad faith or willful
misconduct. The Issuer also covenants to indemnify the Trustee, each
predecessor Trustee and their respective directors, officers, employees, and
agents (the "indemnitees") for, and to hold the indemnitees harmless against,
any and all loss, liability, claim, damage, penalty, fine or expense, including
taxes and reasonable out-of-pocket expenses, reasonable incidental expenses and
reasonable legal fees and expenses incurred without negligence, bad faith or
willful misconduct on the indemnitees' part, arising out of or in connection
with the acceptance or administration of this Indenture or the trusts hereunder
and the indemnitees' duties hereunder, including the costs and expenses of
defending themselves against or investigating any claim, whether asserted by
the Issuer or any Holder or any other Person, or liability in connection with
the exercise or performance of the indemnitees' duties or obligations
hereunder. The obligations of the Issuer under this Section to compensate and
indemnify the indemnitees and to pay or reimburse the indemnitees for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee in accordance with Section 6.10 herein.
Such additional indebtedness shall be a senior claim to that of the Securities
upon all property and funds held or collected by the Trustee as such, except
funds held in trust for the benefit of the Holders of particular Securities or
Coupons, and the Securities are hereby subordinated to such senior claim.
The Trustee shall have a lien prior to the Securities as to
all property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.6, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(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.
The provisions of this section shall survive the termination
of this Indenture.
Section 6.7 Right of Trustee to Rely on Officer's
Certificate, Etc. Subject to Sections 6.1 and 6.2, whenever in the
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to taking
or suffering or omitting any action hereunder, such matter (unless other
evidence in respect thereof be herein specifically prescribed) may, in the
absence of negligence, bad faith or willful misconduct on the part of the
Trustee, be deemed to be conclusively proved and established by an Officer's
Certificate delivered to the Trustee, and such certificate, in the absence of
negligence, bad faith or willful misconduct on the part of the Trustee, shall
be full warrant to the Trustee for any action taken, suffered or omitted by it
under the provisions of this Indenture upon the faith thereof.
Section 6.8 Indentures Not Creating Potential Conflicting
Interests for the Trustee. The following indentures are hereby specifically
described for the purposes of Section 310(b)(1) of the Trust Indenture Act of
1939: this Indenture with respect to the Securities of any series.
Section 6.9 Persons Eligible for Appointment as Trustee. The
Trustee for each series of Securities hereunder shall at all times be a
corporation or banking association organized and doing business under the laws
of the United States of America or of any State or the District of Columbia
having a combined capital and surplus of at least $50,000,000, and which is
authorized under such laws to exercise corporate trust powers and is subject to
supervision or examination by Federal, State or District of Columbia authority.
Such corporation or banking association shall have a place of business or an
affiliate with a place of business in the Borough of Manhattan, The City of New
York if there be such a corporation or association in such location willing to
act upon reasonable and customary terms and conditions. If such corporation or
association publishes reports of condition at least annually, pursuant to law
or to the requirements of the aforesaid supervising or examining authority,
then for the purposes of this Section, the combined capital and surplus of such
corporation or association 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 the Trustee shall cease to be eligible in accordance with the
provisions of this Section, the Trustee shall resign immediately in the manner
and with the effect specified in Section 6.10.
The provisions of this Section 6.9 are in furtherance of and
subject to Section 310(a) of the Trust Indenture Act of 1939.
Section 6.10 Resignation and Removal; Appointment of
Successor Trustee.
(1) The Trustee, or any trustee or trustees hereafter
appointed, may at any time resign with respect to one or more or all series of
Securities by giving written notice of resignation to the Issuer and (a) if any
Unregistered Securities of a series affected are then Outstanding, by giving
notice of such resignation to the Holders thereof, by publication, at the
Issuer's expense, at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, (b) if any Unregistered Securities of a series
affected are then Outstanding, by mailing notice of such resignation to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939 at such
addresses as were so furnished to the Trustee and (c) by mailing notice of such
resignation to the Holders of then Outstanding Registered Securities of each
series affected at their addresses as they shall appear on the registry books.
Upon receiving such notice of resignation, the Issuer shall promptly appoint a
successor Trustee or Trustees with respect to the applicable series by written
instrument in duplicate, executed by authority of the Board of Directors, one
copy of which instrument shall be delivered to the resigning Trustee and one
copy to the successor Trustee or Trustees. If no successor Trustee shall have
been so appointed with respect to any series and have accepted appointment
within 30 days after the mailing of such notice of resignation, the resigning
Trustee may, at the Issuer's expense, petition any court of competent
jurisdiction for the appointment of a successor Trustee, or any Securityholder
who has been a bona fide Holder of a Security or Securities of the applicable
series for at least six months may, subject to the provisions of Section 5.12,
on behalf of himself or herself and all others similarly situated, petition any
such court for the appointment of a successor Trustee. Such court may
thereupon, after such notice, if any, as it may deem proper and prescribe,
appoint a successor Trustee.
(2) In case at any time any of the following shall
occur:
(a) the Trustee shall fail to comply with the
provisions of Section 310(b) of the Trust Indenture Act of 1939 with
respect to any series of Securities after written request therefor by
the Issuer or by any Securityholder who has been a bona fide Holder of
a Security or Securities of such series for at least six months; or
(b) the Trustee shall cease to be eligible in
accordance with the provisions of Section 6.9 and Section 310(a) of
the Trust Indenture Act of 1939 and shall fail to resign after written
request therefor by the Issuer or by any Securityholder; or
(c) the Trustee shall become incapable of acting
with respect to any series of Securities, or shall be adjudged
bankrupt or insolvent, or a receiver or liquidator 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, the Issuer may remove the Trustee with respect to the
applicable series of Securities and appoint a successor Trustee for such series
by written instrument, in duplicate, executed by order of the Board of
Directors of the Issuer, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor Trustee, or, subject to the
provisions of Section 315(e) of the Trust Indenture Act of 1939, any
Securityholder who has been a bona fide Holder of a Security or Securities of
such series for at least six months may on behalf of himself or herself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee with respect
to such series. Such court may thereupon, after such notice, if any, as it may
deem proper, remove the Trustee and appoint a successor Trustee.
(3) The Holders of a majority in aggregate principal
amount of the Securities of each series at the time Outstanding may at any time
remove the Trustee with respect to Securities of such series and appoint a
successor Trustee with respect to the Securities of such series by delivering
to the Trustee so removed, to the successor Trustee so appointed and to the
Issuer the evidence provided for in Section 7.1 of the action in that regard
taken by such Securityholders.
(4) Any resignation or removal of the Trustee with
respect to any series and any appointment of a successor Trustee with respect
to such series pursuant to any of the provisions of this Section 6.10 shall
become effective upon acceptance of appointment by the successor Trustee as
provided in Section 6.11.
Section 6.11 Acceptance of Appointment by Successor Trustee.
Any successor Trustee appointed as provided in Section 6.10 shall execute and
deliver to the Issuer and to its predecessor Trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor Trustee with respect to all or any applicable series shall become
effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all rights, powers, duties and obligations
with respect to such series of its predecessor hereunder, with like effect as
if originally named as Trustee for such series hereunder; but, nevertheless, on
the written request of the Issuer or of the successor Trustee, upon payment of
its charges then unpaid, the Trustee ceasing to act shall, subject to Section
3.3, pay over to the successor Trustee all moneys at the time held by it
hereunder and shall execute and deliver an instrument transferring to such
successor trustee all such rights, powers, duties and obligations. Upon request
of any such successor Trustee, the Issuer shall execute any and all instruments
in writing for more fully and certainly vesting in and confirming to such
successor Trustee all such rights and powers. Any Trustee ceasing to act shall,
nevertheless, retain a prior claim upon all property or funds held or collected
by such Trustee to secure any amounts then due it pursuant to the provisions of
Section 6.6.
If a successor Trustee is appointed with respect to the
Securities of one or more (but not all) series, the Issuer, the predecessor
Trustee and each successor Trustee with respect to the Securities of any
applicable series shall execute and deliver an indenture supplemental hereto
which shall contain such provisions as shall be deemed necessary or desirable
to confirm that all the rights, powers, trusts and duties of the predecessor
Trustee with respect to the Securities of any series as to which the
predecessor Trustee is not retiring shall continue to be vested in the
predecessor Trustee, and shall add to or change any of the provisions of this
Indenture as shall be necessary to provide for or facilitate the administration
of the trusts hereunder by more than one Trustee, it being understood that
nothing herein or in such supplemental indenture shall constitute such Trustees
co-trustees of the same trust and that each such Trustee shall be Trustee of a
trust or trusts under separate indentures.
No successor Trustee with respect to any series of Securities
shall accept appointment as provided in this Section 6.11 unless at the time of
such acceptance such successor Trustee shall be qualified under Section 310(b)
of the Trust Indenture Act of 1939 and eligible under the provisions of Section
6.9.
Upon acceptance of appointment by any successor Trustee as
provided in this Section 6.11, the Issuer shall give notice thereof (1) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof, by publication of such notice at least once in an Authorized
Newspaper in the Borough of Manhattan, The City of New York and (2) if any
Unregistered Securities of a series affected are then Outstanding, to the
Holders thereof who have filed their names and addresses with the Trustee
pursuant to Section 313(c)(2) of the Trust Indenture Act of 1939, by mailing
such notice to such Holders at such addresses as were so furnished to the
Trustee (and the Trustee shall make such information available to the Issuer
for such purpose) and (3) if any Registered Securities of a series affected are
then Outstanding, to the Holders thereof, by mailing such notice to such
Holders at their addresses as they shall appear on the registry books. If the
acceptance of appointment is substantially contemporaneous with the
resignation, then the notice called for by the preceding sentence may be
combined with the notice called for by Section 6.10. If the Issuer fails to
give such notice within ten days after acceptance of appointment by the
successor Trustee, the successor Trustee shall cause such notice to be given at
the expense of the Issuer.
Section 6.12 Merger, Amalgamation, Conversion, Consolidation
or Succession to Business of Trustee. Any corporation or national banking
association into which the Trustee may be merged or amalgamated or converted or
with which it may be consolidated, or any corporation or national banking
association resulting from any merger, amalgamation, conversion or
consolidation to which the Trustee shall be a party, or any corporation or
national banking association succeeding to all or substantially all the
corporate trust business of the Trustee, shall be the successor of the Trustee
hereunder, provided that such corporation or national banking association shall
be qualified under Section 310(b) of the Trust Indenture Act of 1939 and
eligible under the provisions of Section 6.9, without the execution or filing
of any paper or any further act on the part of any of the parties hereto,
anything herein to the contrary notwithstanding.
In case at the time such successor to the Trustee shall
succeed to the trusts created by this Indenture any of the Securities of any
series shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Securities so authenticated; and, in case at that time
any of the Securities of any series shall not have been authenticated, any
successor to the Trustee may authenticate such Securities either in the name of
any predecessor hereunder or in the name of the successor Trustee; and in all
such cases such certificate shall have the full force which it is anywhere in
the Securities of such series or in this Indenture provided that the
certificate of the Trustee shall have; provided, that the right to adopt the
certificate of authentication of any predecessor Trustee or to authenticate
Securities of any series in the name of any predecessor Trustee shall apply
only to its successor or successors by merger, amalgamation, conversion or
consolidation.
Section 6.13 Preferential Collection of Claims Against the
Issuer. The Trustee shall comply with Section 311(a) of the Trust Indenture Act
of 1939, excluding any creditor relationship listed in Section 311(b) of the
Trust Indenture Act of 1939. A Trustee who has resigned or been removed shall
be subject to Section 311(a) of the Trust Indenture Act of 1939 to the extent
indicated therein.
Section 6.14 Appointment of Authenticating Agent. As long as
any Securities of a series remain Outstanding, the Trustee may, by an
instrument in writing, appoint with the approval of the Issuer an
authenticating agent (the "Authenticating Agent") which shall be authorized to
act on behalf of the Trustee to authenticate Securities, including Securities
issued upon exchange, registration of transfer, partial redemption or pursuant
to Section 2.9. Securities of each such series authenticated by such
Authenticating Agent shall be entitled to the benefits of this Indenture and
shall be valid and obligatory for all purposes as if authenticated by the
Trustee. Whenever reference is made in this Indenture to the authentication and
delivery of Securities of any series by the Trustee or to 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
for such series and a Certificate of Authentication executed on behalf of the
Trustee by such Authenticating Agent. Such Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the
United States of America or of any State, authorized under such laws to
exercise corporate trust powers, having a combined capital and surplus of at
least $50,000,000 (determined as provided in Section 6.9 with respect to the
Trustee) and subject to supervision or examination by Federal or State
authority.
Any corporation into which any Authenticating Agent may be
merged, amalgamated or converted, or with which it may be consolidated, or any
corporation resulting from any merger, amalgamation or conversion or
consolidation to which any Authenticating Agent shall be a party, or any
corporation succeeding to all or substantially all of the corporate agency
business of any Authenticating Agent, shall continue to be the Authenticating
Agent with respect to all series of Securities for which it served as
Authenticating Agent without the execution or filing of any paper or any
further act on the part of the Trustee or such Authenticating Agent. The
Trustee may at any time terminate the Authenticating Agent. Any Authenticating
Agent may at any time, and if it shall cease to be eligible, shall resign by
giving written notice of resignation to the Trustee and to the Issuer.
Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.14 with respect to
one or more series of Securities, the Trustee shall upon receipt of an Issuer
Order appoint a successor Authenticating Agent and the Issuer shall provide
notice of such appointment to all Holders of Securities of such series in the
manner and to the extent provided in Section 11.4. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
rights, powers, duties and responsibilities of its predecessor hereunder, with
like effect as if originally named as Authenticating Agent. The Issuer agrees
to pay to the Authenticating Agent for such series from time to time reasonable
compensation. The Authenticating Agent for the Securities of any series shall
have no responsibility or liability for any action taken by it as such at the
direction of the Trustee.
Sections 6.2, 6.3, 6.4, 6.6 and 7.3 shall be applicable to
any Authenticating Agent.
ARTICLE VII
CONCERNING THE SECURITYHOLDERS
Section 7.1 Evidence of Action Taken by Securityholders. Any
request, demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by a specified
percentage in principal amount of the Securityholders of any or all series may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such specified percentage of Securityholders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee. Proof of execution of any instrument
or of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Sections 6.1 and 6.2) conclusive in favor of
the Trustee and the Issuer, if made in the manner provided in this Article.
Section 7.2 Proof of Execution of Instruments and of Holding
of Securities. Subject to Sections 6.1 and 6.2, the execution of any instrument
by a Securityholder or his or her agent or proxy may be proved in the following
manner:
(1) The fact and date of the execution by any Holder of
any instrument may be proved by the certificate of any notary public or other
officer of any jurisdiction authorized to take acknowledgments of deeds or
administer oaths that the person executing such instruments acknowledged to him
or her the execution thereof, or by an affidavit of a witness to such execution
sworn to before any such notary or other such officer. Where such execution is
by or on behalf of any legal entity other than an individual, such certificate
or affidavit shall also constitute sufficient proof of the authority of the
person executing the same.
(2) The fact of the holding by any Holder of an
Unregistered Security of any series, and the identifying number of such
Security and the date of his or her holding the same, may be proved by the
production of such Security or by a certificate executed by any trust company,
bank, banker or recognized securities dealer wherever situated satisfactory to
the Trustee, if such certificate shall be deemed by the Trustee to be
satisfactory. Each such certificate shall be dated and shall state that on the
date thereof a Security of such series bearing a specified identifying number
was deposited with or exhibited to such trust company, bank, banker or
recognized securities dealer by the person named in such certificate. Any such
certificate may be issued in respect of one or more Unregistered Securities of
one or more series specified therein. The holding by the person named in any
such certificate of any Unregistered Securities of any series specified therein
shall be presumed to continue for a period of one year from the date of such
certificate unless at the time of any determination of such holding (a) another
certificate bearing a later date issued in respect of the same Securities shall
be produced, or (b) the Securities of such series specified in such certificate
shall be produced by some other person, or (c) the Securities of such series
specified in such certificate shall have ceased to be Outstanding. Subject to
Sections 6.1 and 6.2, the fact and date of the execution of any such instrument
and the amount and numbers of Securities of any series held by the person so
executing such instrument and the amount and numbers of any Security or
Securities for such series may also be proven in accordance with such
reasonable rules and regulations as may be prescribed by the Trustee for such
series or in any other manner which the Trustee for such series may deem
sufficient.
(3) In the case of Registered Securities, the ownership
of such Securities shall be proved by the Security register or by a certificate
of the Security registrar.
The Issuer may set a record date for purposes of
determining the identity of Holders of Registered Securities of any series
entitled to vote or consent to any action referred to in Section 7.1, which
record date may be set at any time or from time to time by notice to the
Trustee, for any date or dates (in the case of any adjournment or
reconsideration) not more than 60 days nor less than five days prior to the
proposed date of such vote or consent, and thereafter, notwithstanding any
other provisions hereof, with respect to Registered Securities of any series,
only Holders of Registered Securities of such series of record on such record
date shall be entitled to so vote or give such consent or revoke such vote or
consent.
Section 7.3 Holders to Be Treated as Owners. The Issuer, the
Trustee and any agent of the Issuer or the Trustee may deem and treat the
person in whose name any Security shall be registered upon the Security
register for such series as the absolute owner of such Security (whether or not
such Security shall be overdue and notwithstanding any notation of ownership or
other writing thereon) for the purpose of receiving payment of or on account of
the principal of and, subject to the provisions of this Indenture, interest on
such Security and for all other purposes; and neither the Issuer nor the
Trustee nor any agent of the Issuer or the Trustee shall be affected by any
notice to the contrary. The Issuer, the Trustee and any agent of the Issuer or
the Trustee may treat the Holder of any Unregistered Security and the Holder of
any Coupon as the absolute owner of such Unregistered Security or Coupon
(whether or not such Unregistered Security or Coupon shall be overdue) for the
purpose of receiving payment thereof or on account thereof and for all other
purposes and neither the Issuer, the Trustee, nor any agent of the Issuer or
the Trustee shall be affected by any notice to the contrary. All such payments
so made to any such person, or upon his or her order, shall be valid, and, to
the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for moneys payable upon any such Unregistered Security or Coupon.
Section 7.4 Securities Owned by Issuer Deemed Not
Outstanding. In determining whether the Holders of the requisite aggregate
principal amount of Outstanding Securities of any or all series have concurred
in any direction, consent or waiver under this Indenture, Securities which are
owned by the Issuer or any other obligor on the Securities with respect to
which such determination is being made or by any person directly or indirectly
controlling or controlled by or under direct or indirect common control with
the Issuer or any other obligor on the Securities with respect to which such
determination is being made shall be disregarded and deemed not to be
Outstanding for the purpose of any such determination, except that for the
purpose of determining whether the Trustee shall be protected in relying on any
such direction, consent or waiver only Securities which a Responsible Officer
of the Trustee actually knows are 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
Issuer or any other obligor upon the Securities or any person directly or
indirectly controlling or controlled by or under direct or indirect common
control with the Issuer or any other obligor on the Securities. In case of a
dispute as to such right, the advice of counsel shall be full protection in
respect of any decision made by the Trustee in accordance with such advice.
Upon request of the Trustee, the Issuer shall furnish to the Trustee promptly
an Officer's Certificate listing and identifying all Securities, if any, known
by the Issuer to be owned or held by or for the account of any of the
above-described Persons; and, subject to Sections 6.1 and 6.2, the Trustee
shall be entitled to accept such Officer's Certificate as conclusive evidence
of the facts therein set forth and of the fact that all Securities not listed
therein are Outstanding for the purpose of any such determination.
Section 7.5 Right of Revocation of Action Taken. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
7.1, of the taking of any action by the Holders of the percentage in aggregate
principal amount of the Securities of any or all series, as the case may be,
specified in this Indenture in connection with such action, any Holder of a
Security the serial number of which is shown by the evidence to be included
among the serial numbers of the Securities the Holders of which have consented
to such action may, by filing written notice at the [Corporate Trust Office]
and upon proof of holding as provided in this Article, revoke such action so
far as concerns such Security. Except as aforesaid any such action taken by the
Holder of any Security shall be conclusive and binding upon such Holder and
upon all future Holders and owners of such Security and of any Securities
issued in exchange or substitution therefor or on registration of transfer
thereof, irrespective of whether or not any notation in regard thereto is made
upon any such Security. Any action taken by the Holders of the percentage in
aggregate principal amount of the Securities of any or all series, as the case
may be, specified in this Indenture in connection with such action shall be
conclusively binding upon the Issuer, the Trustee and the Holders of all the
Securities affected by such action.
ARTICLE VIII
SUPPLEMENTAL INDENTURES
Section 8.1 Supplemental Indentures Without Consent of
Securityholders.
(1) In addition to any supplemental indenture otherwise
authorized by this Indenture, the Issuer, when authorized by a resolution of
its Board of Directors (which resolution may provide general terms or
parameters for such action and may provide that the specific terms of such
action may be determined in accordance with or pursuant to an Issuer Order),
and the Trustee may from time to time and at any time enter into an indenture
or indentures supplemental hereto, which comply with the Trust Indenture Act of
1939, as then in effect, without the consent of the Holders, for one or more of
the following purposes:
(a) to convey, transfer, assign, mortgage or
pledge to the Trustee as security for the Securities of one or more
series any property or assets;
(b) to evidence the succession of another Person
to the Issuer, or successive successions, and the assumption by the
successor Person of the covenants, agreements and obligations of the
Issuer pursuant to Article IX;
(c) to add to the covenants of the Issuer such
further covenants, restrictions, conditions or provisions as the
Issuer and the Trustee shall consider to be for the protection of the
Holders of Securities or Coupons, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional
covenants, restrictions, conditions or provisions an Event of Default
permitting the enforcement of all or any of the several remedies
provided in this Indenture as herein set forth; provided, that in
respect of any such additional covenant, restriction, condition or
provision 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 an Event of Default or may limit the
remedies available to the Trustee upon such an Event of Default or may
limit the right of the Holders of a majority in aggregate principal
amount of the Securities of such series to waive such an Event of
Default;
(d) to cure any ambiguity or to correct or
supplement any provision contained herein or in any supplemental
indenture which may be defective or inconsistent with any other
provision contained herein or in any supplemental indenture, or to
make any other provisions as the Issuer may deem necessary or
desirable, provided that no such action shall materially adversely
affect the interests of the Holders of the Securities or Coupons;
(e) to establish the forms or terms of Securities
of any series or of the Coupons appertaining to such Securities as
permitted by Sections 2.1 and 2.3;
(f) 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, pursuant to the requirements of Section 6.11; and
(g) to make any other changes that do not
materially adversely affect holders of the affected Securities.
(2) The Trustee is hereby authorized to join with the
Issuer in the execution of any such supplemental indenture, to make any further
appropriate agreements and stipulations which may be therein contained and to
accept the conveyance, transfer, assignment, mortgage or pledge of any property
thereunder, but the Trustee 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.
(3) Any supplemental indenture authorized by the
provisions of this Section may be executed without the consent of the Holders
of any of the Securities at the time outstanding, notwithstanding any of the
provisions of Section 8.2.
Section 8.2 Supplemental Indentures With Consent of
Securityholders.
(1) With the consent (evidenced as provided in Article
VII) of the Holders of not less than a majority in aggregate principal amount
of the Securities at the time Outstanding of all series affected by such
supplemental indenture (voting as one class), the Issuer, when authorized by a
resolution of its Board of Directors (which resolution may provide general
terms or parameters for such action and may provide that the specific terms of
such action may be determined in accordance with or pursuant to an Issuer
Order), and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto, which comply with the Trust
Indenture Act of 1939, as then in effect, for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of the Securities of each such series or of the
Coupons appertaining to such Securities; provided, that no such supplemental
indenture shall (a) extend the final maturity of any then issued Security, or
reduce the principal amount thereof, or reduce the rate or extend the time of
payment of interest thereon or reduce any amount payable on redemption thereof,
or make the principal thereof (including any amount in respect of original
issue discount), or interest thereon or Additional Amounts payable in any coin
or currency other than that provided in such Securities and any Coupons thereon
or in accordance with the terms thereof, or reduce the amount of the principal
of a then issued Original Issue Discount Security that would be due and payable
upon an acceleration of the maturity thereof pursuant to Section 5.1 or the
amount thereof provable in bankruptcy pursuant to Section 5.2, or impair or
affect the right of any Securityholder to institute suit for the payment
thereof or, if such Securities provide therefor, any right of repayment at the
option of the Securityholder, in each case without the consent of the Holder of
each Security so affected, or (b) reduce the percentage in principal amount of
then issued Securities of any series, the consent of the Holders of which is
required for any such supplemental indenture, without the consent of the
Holders of each Security so affected.
(2) 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 Holders of Securities of such
series, or of Coupons appertaining to such Securities, with respect to such
covenant or provision, shall be deemed not to affect the rights under this
Indenture of the Holders of Securities of any other series or of the Coupons
appertaining to such Securities.
(3) Upon the request of the Issuer, accompanied by a
copy of a resolution of the Board of Directors (which resolution may provide
general terms or parameters for such action and may provide that the specific
terms of such action may be determined in accordance with or pursuant to an
Issuer Order) certified by [the secretary or an assistant secretary] of the
Issuer authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of the Holders of the
Securities as aforesaid and other documents, if any, required by Section 7.1,
the Trustee shall join with the Issuer in the execution of such supplemental
indenture unless such supplemental indenture affects the Trustee's own rights,
duties or immunities under this Indenture or otherwise, in which case the
Trustee may in its discretion, but shall not be obligated to, enter into such
supplemental indenture.
(4) It shall not be necessary for the consent of the
Securityholders under this Section to approve the particular form of any
proposed supplemental indenture, but it shall be sufficient if such consent
shall approve the substance thereof.
(5) Promptly after the execution by the Issuer and the
Trustee of any supplemental indenture pursuant to the provisions of this
Section, the Trustee shall give notice thereof (a) if any Registered Securities
of a series affected thereby are then Outstanding, to the Holders thereof by
mailing a notice thereof by first-class mail to such Holders at their addresses
as they shall appear on the Security register, (b) if any Unregistered
Securities of a series affected thereby are then Outstanding, to the Holders
thereof who have filed their names and addresses with the Trustee pursuant to
Section 313 (c)(2) of the Trust Indenture Act of 1939, by mailing a notice
thereof by first-class mail to such Holders at such addresses as were so
furnished to the Trustee and (c) if any Unregistered Securities of a series
affected thereby are then Outstanding, to all Holders thereof, by publication
of a notice thereof at least once in an Authorized Newspaper in the Borough of
Manhattan, The City of New York and in each case such notice shall set forth in
general terms the substance of such supplemental indenture. Any failure of the
Issuer to give such notice, or any defect therein, shall not, however, in any
way impair or affect the validity of any such supplemental indenture.
Section 8.3 Effect of Supplemental Indenture. Upon the
execution of any supplemental indenture pursuant to the provisions hereof, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Issuer and the Holders
of Securities of each series affected thereby shall thereafter be determined,
exercised and enforced hereunder subject in all respects to such modifications
and amendments, and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this
Indenture for any and all purposes.
Section 8.4 Documents to Be Given to Trustee. The Trustee,
subject to the provisions of Sections 6.1 and 6.2, shall be provided with, and
shall be fully protected in relying upon, an Officer's Certificate and an
Opinion of Counsel as conclusive evidence that any supplemental indenture
executed pursuant to this Article VIII complies with the applicable provisions
of this Indenture.
Section 8.5 Notation on Securities in Respect of Supplemental
Indentures. Securities of any series authenticated and delivered after the
execution of any supplemental indenture pursuant to the provisions of this
Article may bear a notation in form approved by the Trustee for such series as
to any matter provided for by such supplemental indenture or as to any action
taken by Securityholders. If the Issuer or the Trustee shall so determine, new
Securities of any series so modified as to conform, in the opinion of the
Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may be prepared by the Issuer,
authenticated by the Trustee and delivered in exchange for the Securities of
such series then Outstanding.
Section 8.6 Conformity with Trust Indenture Act of 1939.
Every supplemental indenture executed pursuant to this Article shall conform to
the requirements of the Trust Indenture Act of 1939 as then in effect.
ARTICLE IX
CONSOLIDATION, MERGER, AMALGAMATION, SALE OR CONVEYANCE
Section 9.1 Issuer May Consolidate, Etc., Only on Certain
Terms. The Issuer shall not consolidate with or merge or amalgamate into
another Person or sell other than for cash all or substantially all its assets
to another Person, or purchase all or substantially all the assets of another
Person, unless:
(1) either the Issuer is the continuing Person, or the
successor Person (if other than the Issuer) expressly assumes by supplemental
indenture the obligations and covenants evidenced by the Indenture and the
Securities (in which case, the Issuer will be discharged therefrom),
(2) immediately thereafter, the Issuer or the successor
Person (if other than the Issuer) would not be in default in the performance of
any covenant or condition contained herein, and
(3) a specified Officers' Certificate and an Opinion of
Counsel are delivered to the Trustee, each (a) stating that such transaction
and any supplemental indenture pertaining thereto, comply with Article VIII and
Article IX, respectively, and (b) otherwise complying with Section 11.5.
Section 9.2 Successor Substituted for the Issuer. Upon any
consolidation of the Issuer with, or merger or amalgamation of the Issuer into,
any other Person or any conveyance or transfer of the properties and assets of
the Issuer substantially as an entirety in accordance with Section 9.1, the
successor Person formed by such consolidation or into which the Issuer is
merged or amalgamated or to which such conveyance or transfer is made shall
succeed to, and be substituted for, and may exercise every right and power of,
the Issuer under this Indenture with the same effect as if such successor
Person had been named as the Issuer herein, and thereafter, the predecessor
Person shall be relieved of all obligations and covenants under this Indenture
and the Securities.
Section 9.3 Restrictions on Certain Dispositions. As long as
any of the Securities remain Outstanding, the Issuer will not, and will not
permit any Restricted Subsidiary to, issue, sell, assign, transfer or otherwise
dispose of, directly or indirectly, any of the Voting Shares of any Restricted
Subsidiary, unless:
(1) the issuance, sale, assignment, transfer or other
disposition is required to comply with the order of a court or regulatory
authority of competent jurisdiction, other than an order issued at the request
of the Issuer or of one of its Restricted Subsidiaries;
(2) all of the Voting Shares of a Restricted Subsidiary
then owned by the Issuer or by its Restricted Subsidiaries is disposed of in a
single transaction or in a series of related transactions, for a consideration
consisting of cash or other property the fair market value of which (as
determined in good faith by the Board of Directors) is at least equal to the
Fair Value of such Voting Shares;
(3) the issuance, sale, assignment, transfer or other
disposition is made to the Issuer or another Restricted Subsidiary; or
(4) after giving effect to the issuance sale,
assignment, transfer or other disposition, the Issuer and its Restricted
Subsidiaries would own directly or indirectly at least 80% of the issued and
outstanding Voting Shares of such Restricted Subsidiary and such issuance,
sale, assignment, transfer or other disposition is made for a consideration
consisting of cash or other property which is at least equal to the Fair Value
of such Voting Shares, as determined in good faith by the Board of Directors.
Notwithstanding the foregoing, the Issuer may merge or
consolidate any of its other Subsidiaries into or with another Person and it
may sell, transfer or otherwise dispose of the assets of any Restricted
Subsidiary or the Issuer's business in accordance with the provisions of this
Indenture. Furthermore, the foregoing covenant will not prohibit any issuance
or disposition of securities by any other Subsidiary.
ARTICLE X
SATISFACTION AND DISCHARGE OF INDENTURE; UNCLAIMED MONEYS
Section 10.1 Termination of Issuer's Obligations Under the
Indenture.
(1) This Indenture shall upon an Issuer Order cease to
be of further effect with respect to Securities of or within any series and any
Coupons appertaining thereto (except as to any surviving rights of registration
of transfer or exchange of such Securities and replacement of such Securities
which may have been lost, stolen or mutilated as herein expressly provided for)
and the Trustee, at the expense of the Issuer, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture with respect to such
Securities and any Coupons appertaining thereto when
(a) either
(i) all such Securities previously
authenticated and delivered and all Coupons appertaining
thereto (other than (A) such Coupons appertaining to
Unregistered Securities surrendered in exchange for
Registered Securities and maturing after such exchange,
surrender of which is not required or has been waived as
provided in Section 2.8, (B) such Securities and Coupons
which have been destroyed, lost or stolen and which have been
replaced or paid as provided in Section 2.9, (C) such Coupons
appertaining to Unregistered Securities called for redemption
and maturing after the date fixed for redemption thereof,
surrender of which has been waived as provided in Section
12.3 and (D) such Securities and Coupons for whose payment
money has theretofore been deposited in trust or segregated
and held in trust by the Issuer and thereafter repaid to the
Issuer or discharged from such trust as provided in Section
3.3) have been delivered to the Trustee for cancellation; or
(ii) all Securities of such series and, in
the case of (X) or (Y) below, all Coupons appertaining
thereto not theretofore delivered to the Trustee for
cancellation (X) have become due and payable, or (Y) will
become due and payable within one year, or (Z) if redeemable
at the option of the Issuer, 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 Issuer, and the
Issuer, in the case of (X), (Y) or (Z) above, has irrevocably
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount in the currency or
currencies or currency unit or units in which the Securities
of such series are payable, sufficient to pay and discharge
the entire indebtedness on such Securities and such Coupons
not theretofore delivered to the Trustee for cancellation,
for principal, premium, if any, and interest and Additional
Amounts, with respect thereto, to the date of such deposit
(in the case of Securities which have become due and payable)
or maturity date or redemption date, as the case may be;
(b) the Issuer has paid or caused to be paid all
other sums payable hereunder by the Issuer; and
(c) the Issuer 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.
(2) Notwithstanding the satisfaction and discharge of
this Indenture, the obligation of the Issuer to the Trustee and any predecessor
Trustee under Section 6.6, the obligations of the Issuer to any Authenticating
Agent under Section 6.14 and, if money shall have been deposited with the
Trustee pursuant to (1)(a)(ii) of this Section, the obligations of the Trustee
under Section 10.2 and the last paragraph of Section 3.3 shall survive.
Section 10.2 Application of Trust Funds. Subject to the
provisions of the last paragraph of Section 3.3, all money deposited with the
Trustee pursuant to Section 10.1 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 Issuer acting as its own paying agent) as the Trustee may
determine, to the Persons entitled thereto of the principal, premium, if any,
and any interest or Additional Amounts for whose payment such money has been
deposited with or received by the Trustee, but such money need not be
segregated from other funds except to the extent required by law.
Section 10.3 Applicability of Defeasance Provisions; Issuer's
Option to Effect Defeasance or Covenant Defeasance. If pursuant to Section 2.3
provision is made for either or both of (1) defeasance of the Securities of or
within a series under Section 10.4 or (2) covenant defeasance of the Securities
of or within a series under Section 10.5, then the provisions of such Section
or Sections, as the case may be, together with the provisions of Sections 10.6
through 10.9 inclusive, with such modifications thereto as may be specified
pursuant to Section 2.3 with respect to any Securities, shall be applicable to
such Securities and any Coupons appertaining thereto, and the Issuer may at its
option by or pursuant to Board Resolution, at any time, with respect to such
Securities and any Coupons appertaining thereto, elect to have Section 10.4 (if
applicable) or Section 10.5 (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 10.4 Defeasance and Discharge. Upon the Issuer's
exercise of the option specified in Section 10.3 applicable to this Section
with respect to the Securities of or within a series, the Issuer shall be
deemed to have been discharged from its obligations with respect to such
Securities and any Coupons appertaining thereto on and after the date the
conditions set forth in Section 10.6 are satisfied (hereinafter "defeasance").
For this purpose, such defeasance means that the Issuer shall be deemed to have
paid and discharged the entire indebtedness represented by such Securities and
any Coupons appertaining thereto which shall thereafter be deemed to be
"Outstanding" only for the purposes of Section 10.7 and the other Sections of
this Indenture referred to in clause (2) of this Section, and to have satisfied
all its other obligations under such Securities and any Coupons appertaining
thereto and this Indenture insofar as such Securities and any Coupons
appertaining thereto are concerned (and the Trustee, at the expense of the
Issuer, shall on an Issuer Order execute proper instruments acknowledging the
same), except the following which shall survive until otherwise terminated or
discharged hereunder: (1) the rights of Holders of such Securities and any
Coupons appertaining thereto to receive, solely from the trust funds described
in Section 10.6(1) and as more fully set forth in such Section, payments in
respect of the principal of, premium, if any, and interest and Additional
Amounts, if any, on such Securities or any Coupons appertaining thereto when
such payments are due; (2) the Issuer's obligations with respect to such
Securities under Sections 2.8, 2.9, 3.2 and 3.3 and with respect to the payment
of Additional Amounts, if any, payable with respect to such Securities as
specified pursuant to Section 2.3; (3) the rights, powers, trusts, duties and
immunities of the Trustee hereunder and (4) this Article X. Subject to
compliance with this Article X, the Issuer may exercise its option under this
Section notwithstanding the prior exercise of its option under Section 10.5
with respect to such Securities and any Coupons appertaining thereto. Following
a defeasance, payment of such Securities may not be accelerated because of an
Event of Default.
Section 10.5 Covenant Defeasance. Upon the Issuer's exercise
of the option specified in Section 10.3 applicable to this Section with respect
to any Securities of or within a series, the Issuer shall be released from its
obligations under Section 9.1 and 3.5 and, if specified pursuant to Section
2.3, its obligations under any other covenant with respect to such Securities
and any Coupons appertaining thereto on and after the date the conditions set
forth in Section 10.6 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 9.1 and Article III 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 Securities
and any Coupons appertaining thereto, the Issuer 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) or (8) 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 10.6 Conditions to Defeasance or Covenant Defeasance.
The following shall be the conditions to application of Section 10.4 or Section
10.5 to any Securities of or within a series and any Coupons appertaining
thereto:
(1) The Issuer shall have deposited or caused to be
deposited irrevocably with the Trustee (or another Trustee satisfying the
requirements of Section 6.9 who shall agree to comply with, and shall be
entitled to the benefits of, the provisions of Sections 10.3 through 10.9
inclusive and the last paragraph of Section 3.3 applicable to the Trustee, for
purposes of such Sections also a "Trustee") as trust funds in trust for the
purpose of making the payments referred to in clauses (X) and (Y) of this
Section 10.6(1), specifically pledged as security for, and dedicated solely to,
the benefit of the Holders of such Securities and any Coupons appertaining
thereto, with instructions to the Trustee as to the application thereof, (a)
money in an amount (in such currency, currencies or currency unit or units in
which such Securities and any Coupons appertaining thereto are then specified
as payable at maturity), or (b) if Securities of such series are not subject to
repayment at the option of Holders, U.S. Government Obligations which through
the payment of interest and principal in respect thereof in accordance with
their terms will provide, not later than one day before the due date of any
payment referred to in clause (X) or (Y) of this Section 10.6(1), money in an
amount or (c) a combination thereof in an amount sufficient, in the opinion of
a nationally recognized firm of independent certified public accountants
expressed in a written certification thereof delivered to the Trustee, to pay
and discharge, and which shall be applied by the Trustee to pay and discharge,
(X) the principal of, premium, if any, and interest and Additional Amounts, if
any, on Securities and any Coupons appertaining thereto on the maturity of such
principal or installment of principal or interest and (Y) any mandatory sinking
fund payments applicable to such Securities on the day on which such payments
are due and payable in accordance with the terms of this Indenture and such
Securities and any Coupons appertaining thereto. Before such a deposit the
Issuer may make arrangements satisfactory to the Trustee for the redemption of
Securities at a future date or dates in accordance with Article XII which shall
be given effect in applying the foregoing.
(2) Such defeasance or covenant defeasance shall not
result in a breach or violation of, or constitute a default or Event of Default
under, this Indenture or result in a breach or violation of, or constitute a
default under, any other material agreement or instrument to which the Issuer
is a party or by which it is bound.
(3) In the case of an election under Section 10.4, the
Issuer shall have delivered to the Trustee an Officers' Certificate and an
Opinion of Counsel to the effect that (a) the Issuer has received from, or
there has been published by, the Internal Revenue Service a ruling, or (b)
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 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 amount and in the same manner and at the same
times, as would have been the case if such deposit, defeasance and discharge
had not occurred.
(4) In the case of an election under Section 10.5, the
Issuer shall have delivered to the Trustee an Opinion of Counsel to the effect
that the Holders of such 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.
(5) The Issuer 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 10.4 or the covenant
defeasance under Section 10.5 (as the case may be), including those contained
in this Section 10.6 other than the 90 day period specified in Section 10.6(7),
have been complied with.
(6) This Issuer shall have delivered to the Trustee an
Officer's Certificate to the effect that neither such Securities nor any other
Securities of the same series, if then listed on any securities exchange, will
be delisted as a result of such deposit.
(7) No event which is, or after notice or lapse of time
or both would become, an Event of Default with respect to such Securities or
any other Securities shall have occurred and be continuing at the time of such
deposit or, with regard to any such event specified in Sections 5.1(5) and (6),
at any time on or prior to the 90th day after the date of such deposit (it
being understood that this condition shall not be deemed satisfied until after
such 90th day).
(8) Such defeasance or covenant defeasance shall not
result in the trust arising from such deposit constituting an investment
company within the meaning of the Investment Company Act of 1940 unless such
trust shall be registered under such Act or exempt from registration
thereunder.
(9) 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 Issuer in connection therewith as
contemplated by Section 2.3.
Section 10.7 Deposited Money and U.S. Government Obligations
to be Held in Trust. Subject to the provisions of the last paragraph of Section
3.3, all money and U.S. Government Obligations (or other property as may be
provided pursuant to Section 2.3) (including the proceeds thereof) deposited
with the Trustee pursuant to Section 10.6 in respect of any 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 Issuer 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, 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.
Section 10.8 Repayment to Issuer. The Trustee (any paying
agent) shall promptly pay to the Issuer upon Issuer Order any excess money or
securities held by them at any time.
Section 10.9 Indemnity For U.S. Government Obligations. The
Issuer shall pay, and shall indemnify the Trustee against, any tax, fee or
other charge imposed on or assessed against U.S. Government Obligations
deposited pursuant to this Article or the principal and interest and any other
amount received on such U.S. Government Obligations.
Section 10.10 Reimbursement. If the Trustee or the paying
agent is unable to apply any money in accordance with this Article with respect
to any Securities by reason of any order or judgment of any court or government
authority enjoining, restraining or otherwise prohibiting such application,
then the obligations under this Indenture and such Securities from which the
Issuer has been discharged or released pursuant to Section 10.4 or 10.5 shall
be revived and reinstated as though no deposit had occurred pursuant to this
Article with respect to such Securities, until such time as the Trustee or
paying agent is permitted to apply all money held in trust pursuant to Section
10.7 with respect to such Securities in accordance with this Article; provided,
however, that if the Issuer makes any payment of principal of or any premium or
interest or Additional Amounts on any such Security following such
reinstatement of its obligations, the Issuer shall be subrogated to the rights
(if any) of the Holders of such Securities to receive such payment from the
money so held in trust.
ARTICLE XI
MISCELLANEOUS PROVISIONS
Section 11.1 Incorporators, Shareholders, Officers and
Directors of Issuer Exempt from Individual Liability. No recourse under or upon
any obligation, covenant or agreement contained in this Indenture, or in any
Security, or because of any indebtedness evidenced thereby, shall be had
against any incorporator, as such or against any past, present or future
shareholder, officer or director, as such, of the Issuer or of any successor,
either directly or through the Issuer or any successor, under any rule of law,
statute or constitutional provision or by the enforcement of any assessment or
by any legal or equitable proceeding or otherwise, all such liability being
expressly waived and released by the acceptance of the Securities and the
Coupons appertaining thereto by the Holders thereof and as part of the
consideration for the issue of the Securities and the Coupons appertaining
thereto.
Section 11.2 Provisions of Indenture for the Sole Benefit of
Parties and Holders of Securities and Coupons. Nothing in this Indenture, in
the Securities or in the Coupons appertaining thereto, expressed or implied,
shall give or be construed to give to any person, firm or corporation, other
than the parties hereto and their successors and the Holders of the Securities
or Coupons, if any, any legal or equitable right, remedy or claim under this
Indenture or under any covenant or provision herein contained, all such
covenants and provisions being for the sole benefit of the parties hereto and
their successors and of the Holders of the Securities or Coupons, if any.
Section 11.3 Successors and Assigns of Issuer Bound by
Indenture. All the covenants, stipulations, promises and agreements in this
Indenture contained by or in behalf of the Issuer shall bind its successors and
assigns, whether so expressed or not.
Section 11.4 Notices and Demands on Issuer, Trustee and
Holders of Securities and Coupons. Any notice or demand which by any provision
of this Indenture is required or permitted to be given or served by the Trustee
or by the Holders of Securities or Coupons to or on the Issuer shall be in
writing (which may be by facsimile) and may be given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Issuer is filed by the
Issuer with the Trustee) to Xxxxxx.xxx India Limited, Xxxxxxxxx Engineering
Estate, 1st Floor, X.X. First Cross Road, Mahim (West), Mumbai 400 016,
Republic of India, Attn: [General Counsel]. Any notice, direction, request or
demand by the Issuer or any Holder of Securities or Coupons to or upon the
Trustee shall be deemed to have been sufficiently given or served by being
deposited postage prepaid, first-class mail (except as otherwise specifically
provided herein) addressed (until another address of the Trustee is filed by
the Trustee with the Issuer) to Citibank, N.A., 000 Xxxxxxxxx Xxxxxx, 00xx
Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attn: Corporate Trust Administration.
Where this Indenture provides for notice to Holders of
Registered Securities, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder entitled thereto, at his or her last address as
it appears in the Security register. In any case where notice to such Holders
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. 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.
In case, by reason of the suspension of or irregularities in
regular mail service, it shall be impracticable to mail notice to the Issuer
when such notice is required to be given pursuant to any provision of this
Indenture, then any manner of giving such notice as shall be reasonably
satisfactory to the Trustee shall be deemed to be a sufficient giving of such
notice.
Section 11.5 Officer's Certificates and Opinions of Counsel;
Statements to Be Contained Therein. Upon any application or demand by the
Issuer to the Trustee to take any action under any of the provisions of this
Indenture, the Issuer shall furnish to the Trustee an Officer's Certificate
stating that all conditions precedent 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 have
been complied with, except that in the case of any such application or demand
as to which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or demand,
no additional certificate or opinion need be furnished.
Each certificate or opinion provided for in this Indenture,
except as required under Section 3.4, and delivered to the Trustee with respect
to compliance with a condition or covenant provided for in this Indenture shall
include (1) a statement that the person making such certificate or opinion has
read such covenant or condition, (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 such person, he or she has made such examination or
investigation as is necessary to enable him or her to express an informed
opinion as to whether or not such covenant or condition has been complied with
and (4) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Any certificate, statement or opinion of an officer of the
Issuer may be based, insofar as it relates to legal matters, upon a certificate
or opinion of or representations by counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his or her certificate, statement or opinion may be based as aforesaid
are erroneous, or in the exercise of reasonable care should know that the same
are erroneous. Any certificate, statement or opinion of counsel may be based,
insofar as it relates to factual matters, information with respect to which is
in the possession of the Issuer, upon the certificate, statement or opinion of
or representations by an officer or officers of the Issuer, unless such counsel
actually knows that the certificate, statement or opinion or representations
with respect to the matters upon which his or her certificate, statement or
opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate, statement or opinion of an officer of the
Issuer or of counsel may be based, insofar as it relates to accounting matters,
upon a certificate or opinion of or representations by an accountant or firm of
accountants in the employ of the Issuer, unless such officer or counsel, as the
case may be, knows that the certificate or opinion or representations with
respect to the accounting matters upon which his or her certificate, statement
or opinion may be based as aforesaid are erroneous, or in the exercise of
reasonable care should know that the same are erroneous.
Any certificate or opinion of any independent firm of public
accountants filed with and directed to the Trustee shall contain a statement
that such firm is independent.
Section 11.6 Payments Due on Saturdays, Sundays and Holidays.
If the date of maturity of interest on or principal of the Securities of any
series or any Coupons appertaining thereto or the date fixed for redemption or
repayment of any such Security or Coupon shall not be a Business Day, then
payment of interest or principal need not be made on such date, but may be made
on the next succeeding Business Day with the same force and effect as if made
on the date of maturity or the date fixed for redemption, and no interest shall
accrue for the period after such date.
Section 11.7 Conflict of Any Provision of Indenture with
Trust Indenture Act of 1939. If and to the extent that any provision of this
Indenture limits, qualifies or conflicts with the duties imposed by, or with
another provision (an "incorporated provision") included in this Indenture by
operation of, Sections 310 to 318, inclusive, of the Trust Indenture Act of
1939, such imposed duties or incorporated provision shall control.
Section 11.8 New York Law to Govern; Waiver of Jury Trial.
This Indenture and each Security and Coupon shall be deemed to be a contract
under the laws of the State of New York, and for all purposes shall be
construed in accordance with the laws of such State, except as may otherwise be
required by mandatory provisions of law.
EACH OF THE ISSUER AND THE TRUSTEE HEREBY IRREVOCABLY WAIVES,
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHT TO TRIAL
BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS INDENTURE,
THE NOTES OR THE TRANSACTION CONTEMPLATED HEREBY.
Section 11.9 Counterparts. This Indenture may be executed in
any number of counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same instrument.
Section 11.10 Effect of Headings. The Article and Section
headings herein and the Table of Contents are for convenience only and shall
not affect the construction hereof.
Section 11.11 Securities in a Foreign Currency or in ECU.
Unless otherwise specified in an Officer's Certificate delivered pursuant to
Section 2.3 of this Indenture with respect to a particular series of
Securities, whenever for purposes of this Indenture any action may be taken by
the Holders of a specified percentage in aggregate principal amount of
Securities of all series or all series affected by a particular action at the
time Outstanding and, at such time, there are Outstanding Securities of any
series which are denominated in a coin or currency other than Dollars
(including ECUs), then the principal amount of Securities of such series which
shall be deemed to be Outstanding for the purpose of taking such action shall
be that amount of Dollars that could be obtained for such amount at the Market
Exchange Rate. For purposes of this Section 11.11, Market Exchange Rate shall
mean the noon Dollar buying rate in New York City for cable transfers of that
currency as published by the Federal Reserve Bank of New York; provided,
however, in the case of ECUs, Market Exchange Rate shall mean the rate of
exchange determined by the Commission of the European Communities (or any
successor thereto) as published in the Official Journal of the European
Communities (such publication or any successor publication, the "Journal"). If
such Market Exchange Rate is not available for any reason with respect to such
currency, the Trustee shall use, in its sole discretion and without liability
on its part, such quotation of the Federal Reserve Bank of New York or, in the
case of ECUs, the rate of exchange as published in the Journal], as of the most
recent available date, or quotations or, in the case of ECUs, rates of exchange
from one or more major banks in The City of New York or in the country of issue
of the currency in question, which for purposes of the ECU shall be Brussels,
Belgium, or such other quotations or, in the case of ECU, rates of exchange as
the Trustee shall deem appropriate. The provisions of this paragraph shall
apply in determining the equivalent principal amount in respect of Securities
of a series denominated in a currency other than Dollars in connection with any
action taken by Holders of Securities pursuant to the terms of this Indenture
including without limitation any determination contemplated in Section 5.1(7).
All decisions and determinations of the Trustee regarding the
Market Exchange Rate or any alternative determination provided for in the
preceding paragraph shall be in its sole discretion and shall, in the absence
of manifest error, be conclusive to the extent permitted by law for all
purposes and irrevocably binding upon the Issuer and all Holders.
Section 11.12 Judgment Currency. The Issuer agrees, to the
fullest extent that it may effectively do so under applicable law, that (1) if
for the purpose of obtaining judgment in any court it is necessary to convert
the sum due in respect of the principal of, any premium, interest or Additional
Amounts on the Securities of any series (the "Required Currency") into a
currency in which a judgment will be rendered (the "Judgment Currency"), the
rate of exchange used shall be the rate at which in accordance with normal
banking procedures the Trustee could purchase in The City of New York the
Required Currency with the Judgment Currency on the day on which final
unappealable judgment is entered, unless such day is not a Business Day, then,
to the extent permitted by applicable law, the rate of exchange used shall be
the rate at which in accordance with normal banking procedures the Trustee
could purchase in The City of New York the Required Currency with the Judgment
Currency on the Business Day preceding the day on which final unappealable
judgment is entered and (2) its obligations under this Indenture to make
payments in the Required Currency (a) shall not be discharged or satisfied by
any tender, or any recovery pursuant to any judgment (whether or not entered in
accordance with subsection (1)), in any currency other than the Required
Currency, except to the extent that such tender or recovery shall result in the
actual receipt, by the payee, of the full amount of the Required Currency
expressed to be payable in respect of such payments, (b) shall be enforceable
as an alternative or additional cause of action for the purpose of recovering
in the Required Currency the amount, if any, by which such actual receipt shall
fall short of the full amount of the Required Currency so expressed to be
payable and (c) shall not be affected by judgment being obtained for any other
sum due under this Indenture.
Section 11.13 Separability Clause. If any provision of this
Indenture or of the Securities, or the application of any such provision to any
Person or circumstance, shall be held to be invalid, illegal or unenforceable,
the remainder of this Indenture or of the Securities, or the application of
such provision to Persons or circumstances other than those as to whom or which
it is invalid, illegal or unenforceable, shall not in any way be affected or
impaired thereby.
Section 11.14 Force Majeure. In no event shall the Trustee be
responsible or liable for any failure or delay in the performance of its
obligations hereunder arising out of or caused by, directly or indirectly,
forces beyond its control, including, without limitation strikes, work
stoppages, accidents, acts of war or terrorism, civil or military disturbances,
nuclear or natural catastrophes or acts of God, and interruptions, loss or
malfunctions of utilities, communications or computer (software and hardware)
services; it being understood that the Trustee shall use reasonable efforts
which are consistent with accepted practices in the banking industry to resume
performance as soon as practicable under the circumstances.
Section 11.15 Submission to Jurisdiction. The Company agrees
that any judicial proceedings instituted in relation to any matter arising
under this Indenture or the Securities may be brought in any United States
Federal or New York State court sitting in the Borough of Manhattan, The City
of New York, New York to the extent that such court has subject matter
jurisdiction over the controversy, and, by execution and delivery of this
Indenture, the Company hereby irrevocably accepts, generally and
unconditionally, the jurisdiction of the aforesaid courts, acknowledges their
competence and irrevocably agrees to be bound by any judgment rendered in such
proceeding. The Company also irrevocably and unconditionally waives for the
benefit of the Trustee and the Holders of the Securities any immunity from
jurisdiction and any immunity from legal process (whether through service or
notice, attachment prior to judgment, attachment in the aid of execution,
execution or otherwise) in respect of this Indenture. The Company hereby
irrevocably designates and appoints for the benefit of the Trustee and the
Holders of the Securities for the term of this Indenture [CT Corporation
System, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 or Xxxxxx.xxx U.S.
address?], as its agent to receive on its behalf service of all process (with a
copy of all such service of process to be delivered to Xxxxxx.xxx India
Limited, Xxxxxxxxx Engineering Estate, 1st Floor, X.X. First Cross Road, Mahim
(West), Mumbai 400 016, Republic of India, Attention: General Counsel) brought
against it with respect to any such proceeding in any such court in The City of
New York, such service being hereby acknowledged by the Company to be effective
and binding service on it in every respect whether or not the Company shall
then be doing or shall have at any time done business in New York. Such
appointment shall be irrevocable so long as any of the Securities or the
obligations of the Company hereunder remain outstanding until the appointment
of a successor by the Company and such successor's acceptance of such
appointment. Upon such acceptance, the Company shall notify the Trustee in
writing of the name and address of such successor. The Company further agrees
for the benefit of the Trustee and the Holders of the Securities to take any
and all action, including the execution and filing of any and all such
documents and instruments, as its agent in full force and effect so long as any
of the Securities or the obligations of the Company hereunder shall be
outstanding. The Trustee shall not be obligated and shall have no
responsibility with respect to any failure by the Company to take any such
action. Nothing herein shall affect the right to serve process in any other
manner permitted by any law or limit the right of the Trustee or any Holder to
institute proceedings against the Company in the courts of any other
jurisdiction or jurisdictions.
ARTICLE XII
REDEMPTION OF SECURITIES AND SINKING FUNDS
Section 12.1 Applicability of Article. The provisions of this
Article shall be applicable to the Securities of any series which are
redeemable before their maturity or to any sinking fund for the retirement of
Securities of a series except as otherwise specified as contemplated by Section
2.3 for Securities of such series.
Section 12.2 Notice of Redemption; Partial Redemptions.
Notice of redemption to the Holders of Registered Securities of any series to
be redeemed as a whole or in part at the option of the Issuer shall be given by
mailing notice of such redemption by first class mail, postage prepaid, at
least 30 days and not more than 60 days prior to the date fixed for redemption
to such Holders of Securities of such series at their last addresses as they
shall appear upon the registry books. Notice of redemption to the Holders of
Unregistered Securities to be redeemed as a whole or in part, who have filed
their names and addresses with the Trustee pursuant to Section 313(c)(2) of the
Trust Indenture Act of 1939 shall be given at the Issuer's expense by mailing
notice of such redemption, by first class mail, postage prepaid, at least 30
days and not more than 60 prior to the date fixed for redemption, to such
Holders at such addresses as were so furnished to the Trustee (and, in the case
of any such notice given by the Issuer, the Trustee shall make such information
available to the Issuer for such purpose). Notice of redemption to all other
Holders of Unregistered Securities shall be published in an Authorized
Newspaper in the Borough of Manhattan, The City of New York, in each case, once
in each of three successive calendar weeks, the first publication to be not
less than 30 nor more than 60 days prior to the date fixed for redemption. Any
notice which is mailed in the manner herein provided shall be conclusively
presumed to have been duly given, whether or not the Holder receives the
notice. Failure to give notice by mail, or any defect in the notice to the
Holder of any Security of a series designated for redemption as a whole or in
part shall not affect the validity of the proceedings for the redemption of any
other Security of such series.
The notice of redemption to each such Holder shall identify
the securities to be redeemed (including CUSIP numbers), shall specify, the
principal amount of each Security of such series held by such Holder to be
redeemed, the date fixed for redemption, the redemption price, the place or
places of payment, that payment will be made upon presentation and surrender of
such Securities and, in the case of Securities with Coupons attached thereto,
of all Coupons appertaining thereto maturing after the date fixed for
redemption, that such redemption is pursuant to the mandatory or optional
sinking fund, or both, if such be the case, that interest accrued to the date
fixed for redemption will be paid as specified in such notice and that on and
after said date interest thereon or on the portions thereof to be redeemed will
cease to accrue. In case any Security of a series is to be redeemed in part
only the notice of redemption shall state the portion of the principal amount
thereof to be redeemed and shall state that on and after the date fixed for
redemption, upon surrender of such Security, a new Security or Securities of
such series in principal amount equal to the unredeemed portion thereof will be
issued.
The notice of redemption of Securities of any series to be
redeemed at the option of the Issuer shall be given by the Issuer or, at the
Issuer's request, by the Trustee (provided it receives the Officer's
Certificate below) in the name and at the expense of the Issuer.
On or before 10:00 a.m., New York City time, the redemption
date specified in the notice of redemption given as provided in this Section,
the Issuer will deposit with the Trustee or with one or more paying agents (or,
if the Issuer is acting as its own paying agent, set aside, segregate and hold
in trust as provided in Section 3.3) an amount of money sufficient to redeem on
the redemption date all the Securities of such series so called for redemption
at the appropriate redemption price, together with accrued interest to the date
fixed for redemption. The Issuer will deliver to the Trustee at least 75 days
prior to the date fixed for redemption an Officer's Certificate stating the
aggregate principal amount of Securities to be redeemed. In case of a
redemption at the election of the Issuer prior to the expiration of any
restriction on such redemption, the Issuer shall deliver to the Trustee, prior
to the giving of any notice of redemption to Holders pursuant to this Section,
an Officer's Certificate stating that such restriction has been complied with.
If less than all the Securities of a series are to be
redeemed, the Trustee shall select, in such manner as it shall deem appropriate
and fair, Securities of such series to be redeemed in whole or in part.
Securities may be redeemed in part in multiples equal to the minimum authorized
denomination for Securities of such series or any multiple thereof. The Trustee
shall promptly notify the Issuer in writing of the Securities of such series
selected for redemption and, in the case of any Securities of such series
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 of any series 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 12.3 Payment of Securities Called for Redemption. If
notice of redemption has been given as above provided, the Securities or
portions of Securities specified in such notice shall become due and payable on
the date and at the place stated in such notice at the applicable redemption
price, together with interest accrued to the date fixed for redemption, and on
and after said date (unless the Issuer shall default in the payment of such
Securities at the redemption price, together with interest accrued to said
date) interest on the Securities or portions of Securities so called for
redemption shall cease to accrue, and the unmatured Coupons, if any,
appertaining thereto shall be void, and, except as provided in Sections 3.3 and
6.5, such Securities shall cease from and after the date fixed for redemption
to be entitled to any benefit or security under this Indenture, and the Holders
thereof shall have no right in respect of such Securities except the right to
receive the redemption price thereof and unpaid interest and Additional Amounts
to the date fixed for redemption. On presentation and surrender of such
Securities at a place of payment specified in said notice, together with all
Coupons, if any, appertaining thereto maturing after the date fixed for
redemption, said Securities or the specified portions thereof shall be paid and
redeemed by the Issuer at the applicable redemption price, together with
interest accrued thereon to the date fixed for redemption; provided that
payment of interest becoming due on or prior to the date fixed for redemption
shall be payable in the case of Securities with Coupons attached thereto, to
the Holders of the Coupons for such interest upon surrender thereof, and in the
case of Registered Securities, to the Holders of such Registered Securities
registered as such on the relevant record date subject to the terms and
provisions of Sections 2.3 and 2.7 hereof.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal shall, until paid or duly
provided for, bear interest from the date fixed for redemption at the rate of
interest or Yield to Maturity (in the case of an Original Issue Discount
Security) borne by such Security.
If any Security with Coupons attached thereto is surrendered
for redemption and is not accompanied by all appurtenant Coupons maturing after
the date fixed for redemption, such Security may be redeemed after deducting
from the redemption price any 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 Issuer and the Trustee if there be furnished to them such
security or indemnity as they may require to save each of them and any paying
agent harmless. If thereafter the Holder of such Security shall surrender to
the Trustee or any paying agent any such missing Coupon in respect of which a
deduction shall have been made from the redemption price, such Holder shall be
entitled to receive the amount so deducted; provided, however, that interest
represented by Coupons shall be payable as provided in Section 2.9 and, unless
otherwise specified as contemplated by Section 2.3, only upon presentation and
surrender of those Coupons.
Upon presentation of any Security redeemed in part only, the
Issuer shall execute and the Trustee shall authenticate and deliver to or on
the order of the Holder thereof, at the expense of the Issuer, a new Security
or Securities of such series, of authorized denominations, in principal amount
equal to the unredeemed portion of the Security so presented.
Section 12.4 Exclusion of Certain Securities from Eligibility
for Selection for Redemption. Securities shall be excluded from eligibility for
selection for redemption if they are identified by registration and certificate
number in an Officer's Certificate delivered to the Trustee at least 40 days
prior to the last date on which notice of redemption may be given as being
owned of record and beneficially by, and not pledged or hypothecated by either
(a) the Issuer or (b) an entity specifically identified in such written
statement as directly or indirectly controlling or controlled by or under
direct or indirect common control with the Issuer.
Section 12.5 Mandatory and Optional Sinking Funds.
(1) The minimum amount of any sinking fund payment
provided for by the terms of the 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 the Securities of any series is
herein referred to as an "optional sinking fund payment". The date on which a
sinking fund payment is to be made is herein referred to as the "sinking fund
payment date".
(2) In lieu of making all or any part of any mandatory
sinking fund payment with respect to any series of Securities in cash, the
Issuer may at its option (a) deliver to the Trustee Securities of such series
theretofore purchased or otherwise acquired (except upon redemption pursuant to
the mandatory sinking fund) by the Issuer or receive credit for Securities of
such series (not previously so credited) theretofore purchased or otherwise
acquired (except as aforesaid) by the Issuer and delivered to the Trustee for
cancellation pursuant to Section 2.10, (b) receive credit for optional sinking
fund payments (not previously so credited) made pursuant to this Section, or
(c) receive credit for Securities of such series (not previously so credited)
redeemed by the Issuer through any optional redemption provision contained in
the terms of such series. Securities so delivered or credited shall be received
or credited by the Trustee at the sinking fund redemption price specified in
such Securities.
(3) On or before the 60th day next preceding each
sinking fund payment date for any series, the Issuer will deliver to the
Trustee an Officer's Certificate (which need not contain the statements
required by Section 11.5) (a) specifying the portion of the mandatory sinking
fund payment to be satisfied by payment of cash and the portion to be satisfied
by credit of Securities of such series and the basis for such credit, (b)
stating that none of the Securities of such series has theretofore been so
credited, (c) stating that no defaults in the payment of interest or Events of
Default with respect to such series have occurred (which have not been waived
or cured) and are continuing and (d) stating whether or not the Issuer intends
to exercise its right to make an optional sinking fund payment with respect to
such series and, if so, specifying the amount of such optional sinking fund
payment which the Issuer intends to pay on or before the next succeeding
sinking fund payment date. Any Securities of such series to be credited and
required to be delivered to the Trustee in order for the Issuer to be entitled
to credit therefor as aforesaid which have not theretofore been delivered to
the Trustee shall be delivered for cancellation pursuant to Section 2.10 to the
Trustee with such Officer's Certificate (or reasonably promptly thereafter if
acceptable to the Trustee). Such Officer's Certificate shall be irrevocable and
upon its receipt by the Trustee the Issuer shall become unconditionally
obligated to make all the cash payments or payments therein referred to, if
any, on or before the next succeeding sinking fund payment date. Failure of the
Issuer, on or before any such 60th day, to deliver such Officer's Certificate
and Securities specified in this paragraph, if any, shall not constitute a
default but shall constitute, on and as of such date, the irrevocable election
of the Issuer (i) that the mandatory sinking fund payment for such series due
on the next succeeding sinking fund payment date shall be paid entirely in cash
without the option to deliver or credit Securities of such series in respect
thereof and (ii) that the Issuer will make no optional sinking fund payment
with respect to such series as provided in this Section.
(4) If the sinking fund payment or payments (mandatory
or optional or both) to be made in cash on the next succeeding sinking fund
payment date plus any unused balance of any preceding sinking fund payments
made in cash shall exceed $50,000 (or the equivalent thereof in any Foreign
Currency or ECU) or a lesser sum in Dollars (or the equivalent thereof in any
Foreign Currency or ECU) if the Issuer shall so request with respect to the
Securities of any particular series, such cash shall be applied on the next
succeeding sinking fund payment date to the redemption of Securities of such
series at the sinking fund redemption price together with accrued interest to
the date fixed for redemption. If such amount shall be $50,000 (or the
equivalent thereof in any Foreign Currency or ECU) or less and the Issuer makes
no such request then it shall be carried over until a sum in excess of $50,000
(or the equivalent thereof in any Foreign Currency or ECU) is available. The
Trustee shall select, in the manner provided in Section 12.2, for redemption on
such sinking fund payment date a sufficient principal amount of Securities of
such series to absorb said cash, as nearly as may be, and shall (if requested
in writing by the Issuer) inform the Issuer of the serial numbers of the
Securities of such series (or portions thereof) so selected. Securities shall
be excluded from eligibility for redemption under this Section if they are
identified by registration and certificate number in an Officer's Certificate
delivered to the Trustee at least 60 days prior to the sinking fund payment
date as being owned of record and beneficially by, and not pledged or
hypothecated by either (a) the Issuer or (b) an entity specifically identified
in such Officer's Certificate as directly or indirectly controlling or
controlled by or under direct or indirect common control with the Issuer. The
Trustee, in the name and at the expense of the Issuer (or the Issuer, if it
shall so request the Trustee in writing) shall cause notice of redemption of
the Securities of such series to be given in substantially the manner provided
in Section 12.2 (and with the effect provided in Section 12.3) for the
redemption of Securities of such series in part at the option of the Issuer.
The amount of any sinking fund payments not so applied or allocated to the
redemption of Securities of such series shall be added to the next cash sinking
fund payment for such series and, together with such payment, shall be applied
in accordance with the provisions of this Section. Any and all sinking fund
moneys held on the stated maturity date of the Securities of any particular
series (or earlier, if such maturity is accelerated), which are not held for
the payment or redemption of particular Securities of such series shall be
applied, together with other moneys, if necessary, sufficient for the purpose,
to the payment of the principal of, and interest on, the Securities of such
series at maturity.
(5) On or before each sinking fund payment date, the
Issuer shall pay to the Trustee in cash or shall otherwise provide for the
payment of all interest accrued and Additional Amounts to the date fixed for
redemption on Securities to be redeemed on the next following sinking fund
payment date.
(6) The Trustee shall not redeem or cause to be
redeemed any Securities of a series with sinking fund moneys or give any notice
of redemption of Securities for such series by operation of the sinking fund
during the continuance of a default in payment of interest on such Securities
or of any Event of Default except that, where the giving of notice of
redemption of any Securities shall theretofore have been made, the Trustee
shall redeem or cause to be redeemed such Securities, provided that it shall
have received from the Issuer a sum sufficient for such redemption. Except as
aforesaid, any moneys in the sinking fund for such series at the time when any
such default or Event of Default shall occur, and any moneys thereafter paid
into the sinking fund, shall, during the continuance of such default or Event
of Default, be deemed to have been collected under Article V and held for the
payment of all such Securities. In case such Event of Default shall have been
waived as provided in Section 5.10 or the default cured on or before the
sixtieth day preceding the sinking fund payment date in any year, such moneys
shall thereafter be applied on the next succeeding sinking fund payment date in
accordance with this Section to the redemption of such Securities.
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed as of .
XXXXXX.XXX INDIA LIMITED
By:________________________________
Name:
Title:
[CITIBANK, N.A.],
as Trustee
By:________________________________
Name:
Title:
